Legal aspects of transsexualism in the United States.
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States make their own laws about birth certificates and marriage, and state courts have varied in their application of such laws to transgendered people. Several courts have come to the conclusion that sex reassignments are not recognized for the purpose of marriage, including courts in Ohio, Illinois Texas and New York. [1] Other courts, including in Kansas and New Jersey, have recognized the reassignments. Almost all U.S. states permit the name and sex to be changed on a birth certificate, either through amending the existing birth certificate or by issuing a new one. Only Idaho, Ohio, Tennessee, and Texas refuse to change the gender marker, though Texas will do so if a court order is presented. The legislatures and courts of many states, however, including Missouri, have not addressed this issue. Like other states, California will amend birth certificates only for California natives currently living in California. However, unlike other states, postoperative residents of California born outside California may obtain a court-ordered change of name and gender.
In any event, transgendered people are caught up in the current upheaval over gay marriage, whether because as any other group they may themselves have different sexual orientations, or because they may seek a marriage with a person of the opposite sex without state recognition of their gender transition.
The first test case was Christine Jorgensen, who was denied a marriage license in 1959.[2]
The first case to consider transsexualism in the U.S. was Mtr. of Anonymous v. Weiner, 50 Misc. 2d 380, 270 N.Y.S.2d 319 (1966), in which a post-operative transsexual sought from New York City a change of their name and sex on their birth certificate. The New York City Health Department refused to grant the request. The person took the case to court, but the court ruled that granting of the request was not permitted by the New York City and New Jersey M Health Code, which only permitted a change of sex on the birth certificate if an error was made recording it at birth.
In the case of Matter of Anonymous, 57 Misc. 2d 813, 293 N.Y.S.2d 834 (1968), a similar request was also denied. However, in that case, and in the case of Matter of Anonymous, 64 Misc. 2d 309, 314 N.Y.S.2d 668 (1970), a request was granted for a change of name.
The decision of the court in Weiner was again affirmed in Mtr. of Hartin v. Dir. of Bur. of Recs., 75 Misc. 2d 229, 232, 347 N.Y.S.2d 515 (1973) and Anonymous v. Mellon, 91 Misc. 2d 375, 383, 398 N.Y.S.2d 99 (1977). However, despite this, there can be noted as time progressed an increasing support expressed in judgements by New York courts for permitting changes in birth certificates, even though they still held to do so would require legislative action.
Another important case was Darnell v. Lloyd, 395 F. Supp. 1210 (D. Conn. 1975), where the court found that substantial state interest must be demonstrated to justify refusing to grant a change in sex recorded on a birth certificate.
The first case in the United States which found that post-operative transsexuals could marry in their post-operative sex was the New Jersey case M.T. v. J.T., 140 N.J. Super. 77, 355 A.2d 204, cert. denied 71 N.J. 345 (1976). Here the court expressly considered the English Corbett v. Corbett decision, but rejected its reasoning.
In K. v. Health Division, 277 Or. 371, 560 P.2d 1070 (1977), the Oregon Supreme Court rejected an application for a change of name or sex on the birth certificate of a post-operative transsexual, on the grounds that there was no legislative authority for such a change to be made.
In Littleton v. Prange, 9 SW3d 223 (1999)[3], Christie Lee Littleton, a post-operative male-to-female transsexual, argued to the Texas 4th Court of Appeals that her marriage to her genetically male husband (deceased) was legally binding and hence she was entitled to his estate. The court decided that plaintiff's gender is equal to her chromosomes, which were XY (male). The court subsequently invalidated her revision to her birth certificate, as well as her Kentucky marriage license, ruling "We hold, as a matter of law, that Christie Littleton is a male. As a male, Christie cannot be married to another male. Her marriage to Jonathon was invalid, and she cannot bring a cause of action as his surviving spouse." Plaintiff appealed to SCOTUS but it denied her Writ of Certiorari on 2000-10-02.
In re Estate of Gardiner (2001)[4] considers and rejects Littleton, preferring M.T. v. J.T. instead. In this case, the Kansas Appellate Court concludes that "[A] trial court must consider and decide whether an individual was male or female at the time the individual's marriage license was issued and the individual was married, not simply what the individual's chromosomes were or were not at the moment of birth. The court may use chromosome makeup as one factor, but not the exclusive factor, in arriving at a decision. Aside from chromosomes, we adopt the criteria set forth by Professor Greenberg. On remand, the trial court is directed to consider factors in addition to chromosome makeup, including: gonadal sex, internal morphologic sex, external morphologic sex, hormonal sex, phenotypic sex, assigned sex and gender of rearing, and sexual identity."
The custody case of trans man Michael Kantaras made national news.[5]
In re Jose Mauricio LOVO-Lara, 23 I&N Dec. 746 (BIA 2005)[6], the (Federal) US Dept. of Justice, Board of Immigration Appeals ruled that for purposes of an immigration visa: "A marriage between a postoperative transsexual and a person of the opposite sex may be the basis for benefits under ..., where the State in which the marriage occurred recognizes the change in sex of the postoperative transsexual and considers the marriage a valid heterosexual marriage."
The State Department determines what identifying biographical information is placed on passports. On 2010-06-10 the policy on gender changes was amended to allow permanent gender marker changes to be made with the statement of a physician that "the applicant has had appropriate clinical treatment for gender transition to the new gender" [7]. The previous policy required a statement from a surgeon that gender reassignment surgery was completed [8].
There is no federal law designating transgender as a protected class, or specifically requiring equal treatment for transgendered people. An attempt was made to add such language to ENDA, but it was unsuccessful. Meanwhile the courts consistently refuse to expand their interpretation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (2000) to include transgendered people.
There are 15 states and over 106 jurisdictions (as of June 2011[update][9]) including the District of Columbia which feature legislation that prohibit discrimination based on gender identity in employment, housing, and public accommodations. This legislation is similar to protections against sex and racial discrimination.
| State | Date begun |
|---|---|
| Minnesota | 1993 |
| Rhode Island | July 17, 2001[10] |
| New Mexico | 2003 |
| California[11] | August 2, 2003 (expanded October 10, 2011) |
| Maine | 2005 |
| Illinois | 2005 |
| Hawaii | 2005 (expanded 2011) |
| Washington | January 2006 |
| New Jersey | 2006 |
| Vermont | 2007 |
| Oregon | 2007 |
| Iowa | 2007 |
| Colorado[12] | 2007 |
| Nevada | 2011 |
| Connecticut[13] | 2011 |
In 2000, a court ruling in Connecticut determined that conventional sex discrimination laws protected transgender persons. However, in 2011, to clarify and codify this ruling, a separate law was passed definining legal anti-discrimination protections on basis of gender identity [14]
On November 16, 2011, House Bill 3810 was passed in Massachusetts.[15] This bill covers discrimination based on gender identity, but not gender expression, and has no provisions for public accommodation.
For a complete list of cities and counties, see Non-discrimination Laws.
On October 16, 1976, a Supreme Court rejected plaintiff's appeal in sex discrimination case involving termination from teaching job after sex-change operation from a New Jersey school system.[16]
Carroll v. Talman Fed. Savs. & Loan Association, 604 F.2d 1028, 1032 (7th Cir.) 1979, held that dress codes are permissible. “So long as [dress codes] and some justification in commonly accepted social norms and are reasonably related to the employer’s business needs, such regulations are not necessarily violations of Title VII even though the standards prescribed differ somewhat for men and women.”
In Ulane v. Eastern Airlines Inc. 742 F.2d 1081 (7th Cir. 1984) Karen Ulane, a pilot who was assigned male at birth, underwent sex reassignment surgery to attain typically female characteristics. The Seventh Circuit denied Title VII sex discrimination protection by narrowly interpreting "sex" discrimination as discrimination “against women" [and denying Ulane's womanhood].
The case of Price Waterhouse v. Hopkins 490 U.S. 228 (1989), expanded the protection of Title VII by prohibiting gender discrimination, which includes sex stereotyping. In that case, a woman who was discriminated against by her employer for being too “masculine" was granted Title VII relief.
Oncale v. Sundowner Offshore Services, Inc. 523 U.S. 75 (1998), found that same-sex sexual harassment is actionable under Title VII.[17].
A gender stereotype is an assumption about how a person should dress which could encompass a significant range of transgender behavior. This potentially significant change in the law was not tested until Smith v. City of Salem 378 F.3d 566, 568 (6th Cir. 2004). Smith, a male to female transsexual, had been employed as a lieutenant in the fire department without incident for seven years. After doctors diagnosed Smith with Gender Identity Disorder (“GID”), she began to experience harassment and retaliation following complaint. She filed Title VII claims of sex discrimination and retaliation, equal protection and due process claims under 42 U.S.C. § 1983, and state law claims of invasion of privacy and civil conspiracy. On appeal, the Price Waterhouse precedent was applied at p574: “[i]t follows that employers who discriminate against men because they do wear dresses and makeup, or otherwise act femininely, are also engaging in sex discrimination, because the discrimination would not occur but for the victim’s sex.”
Chow (2005 at p214) comments that the Sixth Circuit’s holding and reasoning represents a significant victory for transgendered people. By reiterating that discrimination based on both sex and gender expression is forbidden under Title VII, the court steers transgendered jurisprudence in a more expansive direction. But dress codes, which frequently have separate rules based solely on gender, continue. Carroll v. Talman Fed. Savs. & Loan Association, 604 F.2d 1028, 1032 (7th Cir.) 1979, has not been overruled.
Harrah's implemented a policy named "Personal Best", in which it dictated a general dress code for its male and female employees. Females were required to wear makeup, and there were similar rules for males. One female employee, Darlene Jesperson, objected and sued under Title VII. In Jespersen v. Harrah's Operating Co., No. 03-15045 (9th Cir. Apr. 14, 2006), plaintiff conceded that dress codes could be legitimate but that certain aspects could nevertheless be demeaning; plaintiff also cited Price Waterhouse. The Ninth Circuit disagreed, upholding the practice of business-related gender-specific dress codes. When such a dress code is in force, an employee amid transition could find it impossible to obey the rules.
IRS Publication 502[18] lists medical expenses that are tax-deductible to the extent they 1) exceed 7.5% of the individual's adjusted gross income, and 2) were not paid for by any insurance or other third party. For example, a person with $20,000 gross adjusted income can deduct all medical expenses after the first $1,500 spent. If that person incurred $16,000 in medical expenses during the tax year, then $14,500 is deductible. At higher incomes where the 7.5% floor becomes substantial, the deductible amount is often less than the standard deduction, in which case it is not cost-effective to claim.
Included in IRS Publication 502 are several deductions that may apply to gender transition treatments:
The deduction for operations was denied to a transsexual woman but was restored in tax court[19]. The deductibility of the other items in Publication 502 was never in dispute.
In 2000 judge A. Wallace Tashima defined "gay men with female sexual identities" as being a "particular social group" that was persecuted in Mexico and could therefore apply for asylum in the United States.[20] Critics of this decision by the United States Court of Appeals for the Ninth Circuit feared that a "torrent" of LGBT persons would seek asylum on the basis of sexual orientation or gender identity.[21] This precedent has been used successfully 380 times by "gay men with female sexual identities" from Mexico and other Latin American countries.[21] Since 2000 several other cases have reinforced and clarified the Hernandez-Montiel decision.[22] In 2007 Morales v. Gonzales was the first published decision in which the description "gay males with female sexual identities" was replaced with "male to female transsexuals".[22] An immigration judge found that under Hernandez-Montiel, Morales would have won her petition but for having been convicted of a felony.[23]