Transgender rights in the United States

Transgender rights in the United States vary considerably by jurisdiction.

Birth certificates are typically issued by the Vital Records Office of the state (or equivalent territory, or capital district) where the birth occurred, and thus the listing of biological sex as male, female or otherwise on the birth certificate (and whether or not this can be changed later) is regulated by state (or equivalent) law. However, federal law regulates sex as listed on a Consular Report of Birth Abroad, and other federal documents that list sex or name, such as the U.S. passport. Laws concerning name changes in U.S. jurisdictions are also a complex mix of federal and state rules. States vary in the extent to which they recognize transgender people's gender identities, often depending on the steps the person has taken in their transition (including psychological therapy, hormone therapy), with some states making sex reassignment surgery a pre-requisite of recognition.

The federal government does not have laws specifically protecting transgender people from discrimination in employment, housing, healthcare, and adoption, but some lawsuits argue that the Equal Protection Clause of the federal constitution or federal laws prohibiting discrimination based on gender should be interpreted to include transgender people and discrimination based on gender identity. U.S. President Barack Obama issued an executive order prohibiting discrimination against transgender people in employment by the federal government and its contractors.^[1] In 2016, the Departments of Education and Justice issued a letter to schools receiving federal funding that interpreted Title IX protection to apply to gender identity and transgender students, advising schools to use a student's preferred name and pronouns and to allow use of bathrooms and locker rooms of the student's gender identity.^[2] Recognition and protection against discrimination is provided by some state and local jurisdictions to varying degrees.

The Supreme Court decision in Obergefell v. Hodges established that equal protection requires all jurisdictions to recognize same-sex marriages, giving transgender people the right to marry regardless of whether their partners are legally considered to be same-sex or opposite-sex. The Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act added gender identity to the federal definition of a hate crime, but only some states and territories include gender identity in their hate crime laws.

Non-binary or genderqueer people may seek legal recognition of a gender identity other than that indicated by their birth sex; in 2016, Oregon became the first state to legally recognize non-binary people.^[3] When a person's gender is not officially recognized, they may seek associated changes, such as to their legal name, including on their birth certificate.

Marriage

In Obergefell v. Hodges, the Supreme Court of the United States ruled that people have a right to marry without regard to gender. While this is commonly understood as a ruling allowing same-sex marriage, it also meant that a person's sex, whether assigned at birth or recognized following transitioning, can not be used to determine their eligibility to marry. Prior to this ruling, the right of transgender people to marry was often subject to legal challenge — as was the status of their marriages after transitioning, particularly in cases where an individual's birth sex was used in order to claim that a same-sex marriage had taken place.^[4]

Cases

In 1959, Christine Jorgensen, a trans woman, was denied a marriage license by a clerk in New York City, on the basis that her birth certificate listed her as male;^[5][6] Jorgensen did not pursue the matter in court. Later that same year, Charlotte McLeod, another trans female who underwent gender reassignment surgery, married her husband Ralph H. Heidel in Miami. She did not mention her birth gender, however, or the fact she was still legally a male. The first case in the United States which found that post-operative trans people could marry in their post-operative sex was the New Jersey case M.T. v J.T., (1976). Here the court expressly considered the English Corbett v. Corbett decision, but rejected its reasoning.

In Littleton v. Prange, (1999),^[7] Christie Lee Littleton, a post-operative trans woman, 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." She appealed to the Supreme Court of the United States but it denied certiorari in 2000.^[4]

The Kansas Appealate Court ruling in In re Estate of Gardiner (2001)^[8] considered and rejected Littleton, preferring M.T. v. J.T. instead. In this case, the Kansas Appellate Court concluded 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." In 2002, the Kansas Supreme Court reversed the Appellate court decision in part, following Littleton.^[9]

The custody case of Michael Kantaras made national news.^[10] Kantaras met another woman and filed for divorce in 1998, requesting primary custody of the children. Though he won that case in 2002, it was reversed on appeal in 2004 by the Florida Second District Court of Appeal,^[11] upholding Forsythe's claim that the marriage was null and void because her ex-husband was still a woman and same-sex marriages were illegal in Florida.^[12] Review was denied by the Florida Supreme Court.^[13]

In re Jose Mauricio LOVO-Lara (2005),^[14] the 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."^[14]

In Fields v. Smith (2006), three transgender women filed a lawsuit against this state of Wisconsin for passing a law banning hormone treatment or sex reassignment surgery for inmates. The courts of appeal struck down the law issuing that transgender people have a right to medical access in prison.^[15]

Steve Schuh v. Anne Arundel County Board of Education (2016)

Parental rights

There is little consistency across courts in the treatment of transgender parent in child custody and visitation cases. In some cases, a parent's transgender status is not weighed in a court decision; in others, rulings are made on the basis of a transgender person being presumed to be an inherently unfit parent.

Courts are generally allowed to base custody or visitation rulings only on factors that directly affect the best interests of the child. According to this principle, if a transgender parent's gender identity cannot be shown to hurt the child, contact should not be limited, and other custody and visitation orders should not be changed for this reason. Many courts have upheld this principle and have treated transgender custody cases like any other child custody determination—by focusing on standard factors such as parental skills. In Mayfield v. Mayfield, for instance, the court upheld a transgender parent's shared parenting plan because there was no evidence in the record that the parent would not be a "fit, loving and capable parent."^[16]

Other times, courts claiming to consider a child's interests have ruled against the transgender parent, leading to the parent losing access to their children on the basis of their gender identity. For example, in Cisek v. Cisek, the court terminated a transgender parent's visitation rights, holding that there was a risk of both mental and "social harm" to the children. The court asked whether the parent's sex change was "simply an indulgence of some fantasy". An Ohio court imposed an indefinite moratorium on visitation based on the court's belief that it would be emotionally confusing for the children to see "their father as a woman".^[17]

Reproductive rights

Transgender people who haven't undergone sex reassignment surgery are still able to procreate. However, many states mandate sex reassignment surgery in order for a trans person's gender identity to be legally recognized. This has been criticized as forcible sterilization.^[18] Some transgender people wish to retain their ability to procreate. Others do not require hysterectomy, phalloplasty, metoidioplasty, penectomy, orchiectomy, or vaginoplasty to treat their gender dysphoria. In these cases, the sexual reassignment surgery is considered medically unnecessary. Furthermore, sexual reassignment surgery is generally the final medical procedure in a complete sex change, and is a procedure which many trans people find financially prohibitive.^[19]

Others advocate for a right to access assisted reproduction technology services and the preservation of reproductive tissue prior to sex reassignment surgery, which renders them infertile. This would include cryopreservation of semen in a sperm bank in the case of trans women and oocytes or ovum for trans men. For such individuals, access to surrogacy and in-vitro fertilization services is necessary to have children.^[20]

Identity documents

Identity documents are a major area of legal concern for transgender people. Different procedures and requirements for legal name changes and gender marker changes on birth certificates, drivers licenses, social security identification and passports exist and can be inconsistent. Many states require sex reassignment surgery to change their name and gender marker. Also, documents which do not match each other can present difficulties in conducting personal affairs - particularly those which require multiple, matching forms of identification. Furthermore, having documents which do not match a person's gender presentation has been reported to lead to harassment and discrimination.^[21][22]

Name change

Transgender people often seek legal recognition for a name change during a gender transition. Laws regarding name changes vary state-by-state. In some states, transgender people can change their name, provided that the change does not perpetrate fraud or enable criminal intent. In other states, the process requires a court order or statute and can be more difficult. An applicant may be required to post legal notices in newspapers to announce the name change - rules that have been criticized on grounds of privacy rights and potentially endangering transgender people to targeted hate crimes.^[23] Some courts require medical or psychiatric documentation to justify a name change, despite having no similar requirement for individuals changing names for reasons other than gender transitioning.^[24]

Birth certificates

Legal requirements each state has for altering the sex on one's birth certificate.

  State does not require SRS to alter sex on birth certificate³

  Altering sex on birth certificate requires SRS¹²

  State does not alter sex on birth certificates for trans people

---- ¹Some Texas officials have refused to amend the sex on birth certificates to reflect a sex change after the ruling Littleton v. Prange; however, a judge can order an amendment.
²Illinois does not require genital reconstruction surgery to amend the sex on birth certificates, but it does require proof of an "operation."
³From May 2013 to March 2017 Missouri allowed, through court order via CASE 13AR-CV00240, a quiet workaround of Mo. Ann. Stat. § 193.215(9). The workaround from the original petitioning case has been reversed by mandate of the several courts and Missouri now requires sexual reassignment surgery to change gender.

The procedure each state uses to alter the sex on one's birth certificate.

  New birth certificate is issued with correct sex designation

  Old birth certificate is amended to correct sex designation

  State does not alter sex on birth certificates for transgender people

U.S. states make their own laws about birth certificates, and state courts have varied in their application of such laws to transgender people.^[25][26] A majority of 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. Many states, however, require medical proof of sterilization by sex reassignment surgery in order to warrant a gender marker change. As of April 2015, Idaho, Kansas, Ohio, and Tennessee refuse to change the sex on a birth certificate.^[27] Texas, by opinion of the local clerk's office, will make necessary changes to a birth certificate, including amendment of sex if a court order is presented. As of July 2014, New York State passed legislation easing changing recorded gender, and as of December 2014 New York City followed, completely eliminating the need for gender reassignment surgery when filing for birth gender change in New York.^[28] In November 2016, Nevada changed the requirements for a person to change their gender on their birth certificates, eliminating the surgery requirement and requiring only an affidavit from the person making the change and an affidavit who can attest that the information is accurate. ^[29]

Cases

The first case to consider legal gender change in the U.S. was Mtr. of Anonymous v. Weiner (1966), in which a post-operative transgender woman wished to change of her name and sex on her birth certificate in New York City. The New York City Health Department denied the request. She took the case to court, but the court ruled that the New York City Health Code didn't permit the request, which only permitted a change of sex on the birth certificate if an error was made recording it at birth.^[30][31]

The decision of the court in Weiner was again affirmed in Mtr. of Hartin v. Dir. of Bur. of Recs. (1973) and Anonymous v. Mellon (1977). Despite this, there can be noted as time progressed an increasing support expressed in judgments by New York courts for permitting changes in birth certificates, even though they still held to do so would require legislative action. It should be noted that classification of characteristic sex is a public health matter in New York; and New York City has its own health department which operates separately and autonomously from the New York State health department.

An important case in Connecticut was Darnell v. Lloyd (1975),^[32] 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.^[33]

In K. v. Health Division (1977),^[34] the Oregon Supreme Court rejected an application for a change of name or sex on the birth certificate of a post-operative transgender man, on the grounds that there was no legislative authority for such a change to be made.

Drivers' licenses

All U.S. states allow the gender marker to be changed on a driver's license,^[35] although the requirements for doing so vary by state. Often, the requirements for changing one's driver's license are less stringent than those for changing the marker on the birth certificate. For example, the state of Massachusetts requires SRS for a birth certificate change,^[36] but only a form including a sworn statement from a physician that the applicant is in fact the new gender to correct the sex designation on a driver's license.^[37] The state of Virginia has policies similar to those of Massachusetts, requiring SRS for a birth certificate change, but not for a driver's license change.^[38][39]

Sometimes, the states' requirements and laws conflict with and are dependent on each other; for example, a transgender woman who was born in Ohio but living in Kentucky will be unable to have the gender marker changed on her Kentucky driver's license. This is due to the fact that Kentucky requires an amended birth certificate reflecting person's accurate gender, but the state of Ohio does not change gender markers on birth certificates.^[40]

Cases

In May 2015, six Michigan transgender people filed Love v. Johnson in the United States District Court for the Eastern District of Michigan, challenging the state's policy requiring the information on a person's driver's license match the information on their birth certificate.^[41][42] This policy requires transgender people to change the information on their birth certificates in order to change their driver's licenses, which is not possible in Idaho and Ohio, where three of the plaintiffs were born, and requires a court order in South Carolina, where a fourth was born. The remaining two residents were born in Michigan, and would be required to undergo surgery to change their birth certificates.^[41] The plaintiffs in the case are represented by the American Civil Liberties Union.^[41][42]

In November 2015, Judge Nancy Edmunds denied the State of Michigan's motion to dismiss the case.^[41]

Passports

The State Department determines what identifying biographical information is placed on passports. On June 10, 2010, 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."^[43] The previous policy required a statement from a surgeon that gender reassignment surgery was completed.^[44]

Third gender option

As of 2015, neither the federal government nor any of the states recognize a third gender option on passports, drivers licenses and birth certificates. The option remains available only in Australia, New Zealand, India, Nepal, Pakistan, Bangladesh, Germany, and Malta.^{[45][46][47][48]} Third genders have traditionally been acknowledged in a number of Native American cultures as "two spirit" people, in traditional Hawaiian culture as the māhū, and as the fa'afafine in American Samoa.^{[49][50][51][52]} Similarly, immigrants from traditional cultures that acknowledge a third gender would benefit from such a reform, including the muxe gender in southern Mexico and the hijra of south Asian cultures.^{[53][54] [55]}

On June 10, 2016, an Oregon circuit court ruled that a resident, Jamie Shupe, could legally change their gender to non-binary. The Transgender Law Center believes this to be "the first ruling of its kind in the U.S."^[3]

On September 26, 2016, intersex California resident Sara Kelly Keenan became the second person in the United States to legally change her gender to 'non-binary'. Keenan, who uses she/her pronouns cited Shupe's case as inspiration for her petition.^[56] Keenan later obtained a birth certificate with an intersex sex marker. In press reporting of this decision, it became apparent that Ohio had issued an 'hermaphrodite' sex marker in 2012.^[57]

On January 26, 2017, a bill was introduced in the California State Senate that would create a third, nonbinary gender marker on California birth certificates, drivers' licenses, and identity cards. The bill, SB 179, would also remove the requirements for a physician's statement and mandatory court hearing for gender change petitions.^[58]

On June 15, 2017, Oregon became the first state in the U.S. to announce it will allow a non-binary "X" gender marker on state IDs and driver's licenses, beginning July 1. No doctor's note will be required for the change.^[59] The following week, Washington D.C. announced that a non-binary "X" gender marker for district-issued ID cards and driver's licenses would become available later in June, with no medical certification required.^[60] The D.C. policy change went into effect on June 27, making the district the first place in the U.S. to offer gender-neutral driver's licenses and ID cards.^[61] Also in June, legislation was introduced in New York to offer an "X" gender marker for residents' ID cards.^[60]

Discrimination

Laws

Current U.S. LGBT employment discrimination laws.

  Sexual orientation and gender identity: all employment

  Sexual orientation: all employment, gender identity only in state employment

  Sexual orientation: all employment

  Sexual orientation and gender identity: state employment only

  Sexual orientation: state employment only

  No state-level protection for LGBT employees

States that prohibit housing discrimination based on sexual orientation or gender identity. HUD regulations require all housing providers that receive HUD funding not to discriminate against an individual's sexual orientation or gender identity.

  Prohibits housing discrimination based on sexual orientation and gender identity

  Prohibits housing discrimination based on sexual orientation only

  Does not factor sexual orientation or gender identity/unclear

Map of U.S. cities and counties that have bans on sexual orientation and gender identity change efforts with minors.

  Ban on conversion therapy for minors on the basis of sexual orientation and gender identity

  No ban on conversion therapy for minors on the basis of sexual orientation

Although the Fourteenth Amendment to the United States Constitution provides equal protection under the law for all, there is no federal law designating transgender as a protected class, or specifically requiring equal treatment for transgender people. Some versions of the Employment Non-Discrimination Act introduced in the U.S. Congress have included protections against discrimination for transgender people, but as of 2015 no version of ENDA has passed. Whether or not to include such language has been a controversial part of the debate over the bill. In 2016 and again in 2017, Rep. Pete Olson [R-TX] introduced legislation to strictly interpret gender identity according to biology, which would end federal civil rights protection of gender identity.

There are 21 states and over 225 jurisdictions (as of 9 July 2016^[62]) including the District of Columbia which feature legislation that prohibit discrimination based on gender identity in either employment, housing, and/or public accommodations. This legislation is similar to protections against sex and racial discrimination.

With the exception of some states and cities, it is legal at the federal level for parents to subjugate transgender children to undergo conversion therapy.

State	Date effective	Employment	Housing	Public accommodations
Minnesota	1993[63]
Rhode Island	Dec 6, 1995 (public accommodation) July 17, 2001 (employment and housing)[64]
New Mexico	July 1, 2003 (employment and housing) 2004 (public accommodation)
California[65]	2004 (employment and housing) Oct 9, 2011 (public accommodations)
District of Columbia	2005 (employment and housing) March 8, 2006 (public accommodations)
Maine	December 28, 2005
Illinois	2005 (employment and housing) 2006 (public accommodations)
Hawaii	July 11, 2005 (housing and public accommodations) May 5, 2011 (employment)
Washington	2006
New Jersey	2006
Vermont	2007
Oregon	2007
Iowa	2007
Colorado[66]	2007 (employment and housing) 2008 (public accommodations)
Nevada	2011
Connecticut[67]	October 1, 2011
Massachusetts[68]	2012 (employment and housing) 2016 (public accommodations)[68]
Delaware	2013
Maryland	2014
Utah	2015
New York[69]	January 20, 2016

On November 16, 2011, House Bill 3810 was passed in Massachusetts.^[70] This bill covers discrimination based on gender identity, but not gender expression. On July 8, 2016, another separate law was enacted in Massachusetts, to include gender identity within public accommodations explicitly.^[68]

On January 30, 2012, HUD Secretary Shaun Donovan announced new regulations that would require all housing providers that receive HUD funding to prevent housing discrimination based on sexual orientation or gender identity.^[71] These regulations went into effect on March 5, 2012.^[72]

Cases

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 defining legal anti-discrimination protections on the basis of gender identity.^[73]

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.^[74]

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."^[75]

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].^[76]

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.^[77]

Oncale v. Sundowner Offshore Services, Inc. 523 U.S. 75 (1998), found that same-sex sexual harassment is actionable under Title VII.^[78]

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 trans woman, 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."^[79] Chow (2005 at p214) comments that the Sixth Circuit's holding and reasoning represents a significant victory for transgender people. By reiterating that discrimination based on both sex and gender expression is forbidden under Title VII, the court steers transgender 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. April 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.

In Glenn v. Brumby, the 11th Circuit Court of Appeals held that the Equal Protection Clause prevented the state of Georgia from discriminating against an employee for being transgender.^[80][81]

In education

The Obama administration takes the position that Title IX's prohibition on discrimination on the basis of "sex" encompasses discrimination on the basis of gender identity and gender expression. In 2016, the Fourth Circuit became the first^[82] Court of Appeals to agree with the administration on the scope of Title IX as applied to transgender students, in the case of Virginia high school student Gavin Grimm (G.G. v. Gloucester County School Board).^[83] The validity of the executive's position is being tested further in the federal courts.

Currently in Anne Arundel county Maryland, Transgender rights are in the process of being repealed.

In 2014, Maryland Senate passed a bill that “bans discrimination based on sexual orientation and sexual identity but includes an exemption for religious organizations, private clubs and educational institutions.^[84]

Restroom access

An area of legal concern for transgender people is access to restrooms which are segregated by gender. It is a common experience to ask transgender people for legal identification while entering or using a gendered restroom.^[85][86][87] Recent legislation has moved in contradictory directions. On one hand, non-discrimination laws have included restrooms as public accommodations, indicating a right to use gendered facilities which conform with a person's gender identity.^[88] On the other, some efforts have been made to insist that individuals use restrooms that match their biological sex, regardless of an individual's gender identity or expression.^[89]

Comprehensive legislation

Numerous jurisdictions and states have passed or considered so-called "bathroom bills" which restrict the use of bathrooms by transgender people, forcing them to choose facilities in accordance with their biological sex. This includes Florida, Arizona, Kentucky and Texas.^{[90][91][92][93]}

North Carolina passed a comprehensive bathroom restriction bill (also known as "HB2" or the Public Facilities Privacy & Security Act) on March 23, 2016, which was quickly signed into law by Governor Pat McCrory. The new law overrides a prior Charlotte, North Carolina non-discrimination ordinance on the same subject.^[94]

In September 2016, California governor Jerry Brown signed a bill requiring all single-occupancy bathrooms to be gender-neutral, effective since March 1, 2017.^[95] California is the first U.S. state to adopt such legislation.^[96]

Schools

In Doe v. Regional School Unit, the Maine Supreme Court held that a transgender girl had a right to use the women's bathroom at school because her psychological well-being and educational success depended on her transition. The school, in denying her access, had "treated [her] differently from other students solely because of her status as a transgender girl." The court determined that this was a form of discrimination.^[97]

In Mathis v. Fountain-Fort Carson School District 8 (2013), Colorado's Division of Civil Rights found that denying a transgender girl access to the women's restroom at school was discrimination. They reasoned, "By not permitting the [student] to use the restroom with which she identities, as non-transgender students are permitted to do, the [school] treated the [student] less favorably than other students seeking the same service." Furthermore, the court rejected the school's defense—that the discriminatory policy was implemented to protect the transgender student from harassment—and observed that transgender students are in fact safest when a school does not single them out as different. Based on this finding, it is no longer acceptable to institute different kinds of bathroom rules for transgender and cisgender people.^[97]

In October 2016, the U.S. Supreme Court agreed to take on the case of whether a transgender boy may use the boys' bathroom in his Virginia high school. The student was assigned female at birth but is male. For a while, the boy was permitted access to the boys' bathroom but was later denied access after a new policy was adopted by the local school board. The ACLU took on the case, stating that girls objected when he tried to use the girls' bathroom in accordance with the new policy and that the student was humiliated when the school directed him to use a private bathroom, unlike other boys. After challenging the policy, the student won his case in the Court of Appeals in 2015 in a tie vote.^[98][99]

Workplace

Rights to restrooms that match one's gender identity have also been recognized in the workplace and are actively being asserted in public accommodations. In Iowa, for example, discrimination in public accommodations on the basis of sexual orientation and gender identity has been prohibited by law since 2007 through the Iowa Civil Rights Act.^[97]

In Cruzan v. Special School District #1, decided in 2002, a Minnesota federal appeals court ruled that it isn't the job of the transgender person to accommodate the concerns of cisgender people who express discomfort with sharing a facility with a transgender person. Employers need to offer an alternative to the complaining employee in these situations, such as an individual restroom.^[97]

Hate crimes legislation

US state hate crime laws as they pertain to sexual orientation and gender identity.

  Sexual orientation and gender identity recognized in state hate crimes law

  Sexual orientation recognized in state hate crimes law

  Sexual orientation recognized for data collection about hate crimes

  State hate crimes law noninclusive ^[100]

Federal hate crimes legislation include limited protections for gender identity. The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009 criminalized "willfully causing bodily injury (or attempting to do so with fire, firearm, or other dangerous weapon)" on the basis of an "actual or perceived" identity. However, protections for hate crimes motivated on the basis of a victim's gender identity or sexual orientation is limited to "crime affect[ing] interstate or foreign commerce or occur[ring] within federal special maritime and territorial jurisdiction." This limitation only applies to gender identity and sexual orientation, and not to race, color, religion or national origin.^[101] Therefore, hate crimes which occur outside these jurisdictions are not protected by federal law.

Seventeen states have hate crimes legislation which include gender identity or expression as a protected group. They are Vermont, Massachusetts, Connecticut, New Jersey, Delaware, Illinois, Maryland, Missouri, Minnesota, Colorado, New Mexico, Nevada, Rhode Island, Washington, Oregon, California, and Hawaii. The District of Columbia also has a trans-inclusive hate crimes law. Twenty-seven states have hate-crimes legislation which exclude transgender people. Six states have no hate-crimes legislation at all.^[102]

Numerous municipalities have passed hate-crime legislation, some of which include transgender people. However, Arkansas recently passed laws which ban municipalities from enacting such protections for sexual orientation, gender identity or expression.^[103]

Healthcare

Transgender people confront two major legal issues within the healthcare system: access to health care for gender transitioning and discrimination by health care workers.

Even though there is medical consensus that hormone therapy and sex reassignment surgery (SRS) are medically necessary for many transgender people, the kinds of health care associated with gender transition are sometimes misunderstood as cosmetic, experimental or simply unnecessary. This has led to public and private insurance companies denying coverage for such treatment.^[104] Courts have repeatedly ruled that these treatments may be medically necessary and have recognized gender dysphoria as a legitimate medical condition constituting a "serious medical need"^[105]

The idea that transition-related care is cosmetic or experimental has been ruled as discriminatory and out of touch with current medical thinking. The AMA and WPATH have specifically rejected these arguments, and courts have affirmed their conclusion.^[106][107] In a case brought by Gay and Lesbian Advocates and Defenders (GLAD), O'Donnabhain v. Commissioner, for instance, the Internal Revenue Service lost its claim that such treatments were cosmetic and experimental when a transgender woman deducted her SRS procedures as a medical expense. Courts have also found that psychotherapy alone is insufficient treatment for gender dysphoria, and that for some people, SRS may be the only effective treatment.^[105]

Transgender people also sometimes experience discrimination by healthcare professionals, who have refused to treat them for conditions both related and unrelated to their gender identity.^{[108][109][110]}

The Affordable Care Act of 2010 prohibits sex discrimination in federally funded health care facilities, and in 2012 the federal Department of Health and Human Services clarified that this includes discrimination based on transgender status. The Act also forbids insurance providers from refusing to cover a person based on a pre-existing condition, including being transgender. Further protections are provided in jurisdictions that have laws prohibiting discrimination on the basis of sex, gender identity or gender expression in public accommodations - and under medical malpractice and misconduct law.^[111]

Prisoners' rights

In September 2011, a California state court denied the request of a California inmate, Lyralisa Stevens, for sex reassignment surgery at the state's expense.^[112]

On January 17, 2014, in Kosilek v. Spencer a three-judge panel of the First Circuit Court of Appeals ordered the Massachusetts Department of Corrections to provide Michelle Kosilek, a Massachusetts inmate, with sex reassignment surgery. It said denying the surgery violated Kosilek's Eighth Amendment rights, which included "receiving medically necessary treatment ... even if that treatment strikes some as odd or unorthodox".^[113]

On April 3, 2015, the U.S. Department of Justice intervened in a federal lawsuit filed in Georgia to argue that denying hormone treatment for transgender inmates violates their rights. It contended that the state's policy that only allows for continuing treatments begun before incarceration was insufficient and that inmate treatment needs to be based on ongoing assessments.^[114] The case was brought by Ashley Diamond, an inmate who had used hormone treatment for seventeen years before entering the Georgia prison system.^[115]

Immigration

In 2000, the US Ninth Circuit Court of Appeals concluded that "gay men with female sexual identities [sic] in Mexico constitute a 'particular social group'" that was persecuted and was entitled to asylum in the US (Hernandez-Montiel v. INS).^[116][117] Since then, several cases have reinforced and clarified the decision.^[118] Morales v. Gonzales (2007) is the only published decision in asylum law that uses "male-to-female transsexual" instead of "gay man with female sexual identity".^[118] An immigration judge stated that, under Hernandez-Montiel, Morales would have been eligible for asylum (if not for her criminal conviction).^[119]

Critics have argued that allowing transgender people to apply for asylum "would invite a flood of people who could claim a 'well-founded fear' of persecution".^[117] Precise numbers are unknown, but Immigration Equality, a nonprofit for LGBT immigrants, estimates hundreds of cases.^[117]

The United States has no process for accepting visa requests for third gender citizens from other countries. In 2015, trans HIV activist Amruta Alpesh Soni's request for a visa was delayed because her gender is listed as "T" (for transgender) on her Indian passport. In order to receive a visa, the State Department requires the gender identification on the visa to match the gender identification on the passport.^[120]

Military

In 2015, the Pentagon reviewed its policy regarding transgender service members and announced that its ban would be removed.^[121] It announced on June 30, 2016 that, beginning on that date, otherwise qualified service members could not any longer be discharged, denied reenlistment, involuntarily separated, or denied continuation of service because of being transgender.^[122] It was also announced at the same time that, starting in July 2017, under Department of Defense regulations transgender persons may serve in the United States military so long as they have adapted to their identified gender for at least an 18-month period.^[122] Prior to these announcements, discharges for gender transitioning were commonplace. In one case, a postoperative trans person was discharged from the Air Force Reserve, a decision supported by the Court of Appeals.^[123]

President Donald Trump announced on July 26, 2017, that transgender individuals will not be allowed to "serve in any capacity in the U.S. Military."^[124] However, Chairman of the Joint Chiefs of Staff General Joseph Dunford has stated “There will be no modifications to the current policy until the President's direction has been received by the Secretary of Defense and the Secretary has issued implementation guidance. In the meantime, we will continue to treat all of our personnel with respect."^[125]

Taxes

IRS Publication 502^[126] 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.

IRS Publication 502 includes several deductions that may apply to gender transition treatments, including some operations.^[126] The deduction for operations was denied to a trans woman but was restored in tax court.^[127] The deductibility of the other items in Publication 502 was never in dispute.

See also

• Transgender disenfranchisement in the United States
• Identity documents in the United States
• History of transgender people in the United States
• LGBT rights in the United States
• Intersex rights in the United States
• Transgender rights
• Name change
• List of transgender-related topics

References

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