Transgender legal history in the United States
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Transgender topics |
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This article addresses the legal and regulatory history of
as well.Legal cases concerning
1960s
In 1966 the first case to consider transsexualism in the US was heard, Mtr. of Anonymous v. Weiner, 50 Misc. 2d 380, 270 N.Y.S.2d 319 (1966). The case concerned a transsexual person from
In 1968 a transgender person again sought a change of name and sex on their birth certificate in the case of Matter of Anonymous, 57 Misc. 2d 813, 293 N.Y.S.2d 834 (1968). The change of sex was denied, but the name change was granted. The same occurred in the case of Matter of Anonymous, 64 Misc. 2d 309, 314 N.Y.S.2d 668 (1970).[2][3]
1970s
In 1971, Bernardsville, New Jersey junior high music teacher Paula Grossman was fired from her position of 14 years after openly transitioning and announcing her identity as a woman. She appealed to the U.S. Supreme Court, which in 1976 refused to hear the case.
A few other scattered positive developments also occurred in this period. In 1975 Minneapolis became the first city in the United States to pass trans-inclusive civil rights protection legislation.[4] In 1977 Renée Richards, a transsexual woman, was granted entry to the U.S. Open (in tennis) after a ruling in her favor by the New York Supreme Court. This was considered a landmark decision in favor of transgender rights.[5]
Other legal cases continued to consider the issue of changing the gender marker on one's official documentation, but cases in this period also considered other issues of anti-transgender discrimination. In 1975 in the case of Darnell v. Lloyd, 395 F. Supp. 1210 (D. Conn. 1975), a Connecticut court found that substantial state interest must be demonstrated to justify refusing to grant a change in sex recorded on a birth certificate. However, in 1977, in the case 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 1976 the first case in the United States that found post-operative transsexuals could marry in their post-operative sex was decided. In 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), the court expressly considered the English Corbett v. Corbett decision that disallowed such a marriage, but rejected its reasoning.
Also in 1976, the
1990s
Violence against transgender people and their partners
In 1993
In 1995 in
In 1999
2000s
In the 2004 case Smith v. City of Salem 378 F.3d 566, 568 (6th Cir. 2004) Smith, a transgender woman, filed
In 2005 Izza Lopez was denied a job for "misrepresenting" her gender. A subsequent lawsuit,
In 2008 the District Court of DC ruled in favor of Diane Schroer, who was denied a position as a terrorism research analyst at the Library of Congress after revealing that she would be transitioning from male to female.[19] The Court agreed that Shroer's case fell under sex discrimination regulations.[19]
Also in 2008 the first ever U.S. Congressional hearing on discrimination against transgender people in the workplace was held by the House Subcommittee on Health, Employment, Labor, and Pensions.[20]
In 2009, due to the
2010s
Case law
In 2011
Also in 2012, Beth Scott, a transgender woman from New Jersey, successfully appealed Aetna's decision not to cover her mammogram because she is transgender. Aetna eventually paid the cost of her mammogram and agreed to ensure that transgender people can access all necessary sex-specific care, such as prostate exams and gynecological care, regardless of whether they are categorized as male or female in insurance records.[26]
Governmental
Executive action and regulatory
In 2010 the Obama administration explicitly banned gender identity-based discrimination on the federal jobs web site USAJobs.[27]
Also in 2014, President Obama signed Executive Order 13672, adding "gender identity" to the categories protected against discrimination in hiring in the federal civilian workforce and both "gender identity" and "sexual orientation" to the categories protected against discrimination in employment and hiring on the part of federal government contractors and sub-contractors.[28]
Also in 2014,
Also in 2014, the
Also in 2016, new regulations were published stating that any health care provider or health insurance company that receives federal funds, as well as state
In May 2016, the Obama administration issued guidance that directed public schools to let transgender students use bathrooms and locker rooms matching their gender identity, and to use the student's preferred name and pronouns.
In 2016, and again in 2017 after the prior bill had died in committee, Rep. Pete Olson [R-TX] introduced federal legislation which would limit gender identity to biological assignation, which would remove the ability to apply federal civil rights protections to transgender individuals. Olson stated in a press release that "the Obama Administration strongly overreached by unilaterally redefining the definition of 'sex' with respect to the Civil Rights Act outside of the lawmaking process."[37]
Federal Agency
In 2010 the State Department amended its policy to allow permanent gender marker changes on passports where a physician states that "the applicant has had appropriate clinical treatment for gender transition to the new gender".[38] The previous policy required a statement from a surgeon that gender reassignment surgery was completed.[39]
In 2011 the Social Security Administration (SSA) ended the practice of allowing gender to be matched in its Social Security Number Verification System (SSNVS). Therefore, the Social Security Administration no longer sends notifications that alert employers when the gender marker on an employee's W-2 does not match Social Security records, a practice that "outed" some transgender Americans in the past.[40]
In 2012 the
In 2012 the Veterans Health Administration declared that transgender veterans are able to change the gender marker on their medical records by providing a physician's letter confirming gender reassignment.[42]
In 2012, the
In 2013 the EEOC ruled in favor of an openly transgender woman who was subjected to physical and verbal harassment at her job with a federal contractor in Maryland.[44] This, according to the LGBT rights organization Freedom to Work, is the first time in history that the EEOC has investigated allegations of anti-transgender harassment and ruled for the transgender employee.[44]
In 2013 the Social Security Administration (SSA) removed its requirement that transgender people wanting to amend their gender on a Social Security card provide proof of gender reassignment surgery, instead stating that they must provide a passport or birth certificate reflecting their accurate gender, or a certification from a physician confirming that the individual has had appropriate clinical treatment for gender transition.[45]
Also in 2014, guidelines were issued by the
In 2014 the
Also in 2014, the
In 2014, it was decided that transgender people receiving Medicare may not be automatically denied coverage by them for sex reassignment surgeries.[51]
Also in 2014, the Social Security Administration (SSA) stated that although its "past policy was to refer all marriage-based claims involving transgender individuals for a legal opinion from the Regional Chief Counsel[,] [o]ur new policy allows us to process most claims... without the need for a legal opinion."[52] This change came soon after Robina Asti, a 92-year-old transgender woman, was denied survivor benefits by the SSA for two years after her husband's death, benefits she finally received on February 14, 2014.[52][53]
Also in 2015, the Occupational Safety and Health Administration published a Guide to Restroom Access for Transgender Workers, which provides guidance to employers on best practices regarding restroom access for transgender workers.[54]
Also in 2015, the Justice Department announced that it had filed its first civil lawsuit on behalf of a transgender person (Rachel Tudor); the lawsuit was United States of America v. Southeastern Oklahoma State University and the Regional University System of Oklahoma, filed in federal court in that state.[55]
Also in 2015, the Equal Employment Opportunity Commission ruled for the first time that Army-imposed restroom restrictions on a transgender civilian employee (Tamara Lusardi) violated the sex discrimination provisions of the Civil Rights Act of 1964.[56]
Also in 2015, new guidance was issued from the U.S. Departments of Health and Human Services, Labor, and the
Also in 2016, guidance was issued by the Departments of Justice and Education stating that schools which receive federal money must treat a student's gender identity as their sex (for example, in regard to bathrooms).[60] However, this policy was revoked in 2017.[60]
Federal courts
Starting in January 2014, each American state must have a Health Benefit Exchange where individuals and families can buy health care plans, and no state's exchange may discriminate against consumers on the basis of gender identity.[61]
In 2015, a federal court first confirmed that the Affordable Care Act prohibits discrimination against transgender people by any health care provider accepting federal funds.[62] Specifically, in the case of a young transgender man who said he was badly mistreated in a Minnesota hospital, the court ruled that Section 1557 of the Affordable Care Act prohibits gender identity discrimination under the umbrella of sex discrimination, and that by accepting Medicare and Medicaid funds the hospital was subject to the law.[62]
An important legal victory for transgender people occurred in April 2016, when the
Late in 2016, an injunction was issued against a federal regulation created to prevent health care discrimination on the basis of gender identity (as well as abortion).[67][68]
In 2016, for the first time, the Justice Department used the
State government
California
In California in 2011 the FAIR Education Act (Senate Bill 48) became law, requiring the inclusion of political, economic, and social contributions of transgender people (along with lesbian, gay, and bisexual people and people with disabilities) in California's textbooks and public school social studies curricula.[71]
In 2013 California enacted America's first law protecting transgender students; the law, called the School Success and Opportunity Act, declares that every public school student in California from kindergarten to 12th grade must be "permitted to participate in sex-segregated school programs and activities, including athletic teams and competitions, and use facilities consistent with his or her gender identity, irrespective of the gender listed on the pupil's records."[72]
In 2014, California became the first state in the U.S. to officially ban the use of
Maine
A 2013 case in
North Carolina
The
Oregon
On June 10, 2016, an Oregon circuit court ruled that a resident, Elisa Rae Shupe, could obtain a non-binary gender designation. The Transgender Law Center believes this to be "the first ruling of its kind in the U.S."[92]
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.[93]
Washington D.C.
On June 27, 2017, Washington, D.C., became the first place in the U.S. to offer a non-binary "X" gender marker on driver's licenses and ID cards.[94]
Military
In 2015 the Army issued a directive that protected transgender soldiers from being dismissed by mid-level officers by requiring the decision for discharge to be made by the service's top civilian for personnel matters.
On June 30, 2016, Ash Carter announced that the ban on transgender people from openly serving in the US military had been lifted and that the
On August 9, 2017,
On August 29, 2017,
On January 25, 2021. U.S. President
Housing
In 2012 United States Department of Housing and Urban Development (HUD) Secretary Shaun Donovan announced new regulations that require all housing providers that receive HUD funding to prevent housing discrimination based on sexual orientation or gender identity.[111] These regulations went into effect on March 5, 2012.[112]
In a memo made public in 2015, officials issued guidance for
In 2016, the U.S. Department of Justice released guidelines forbidding corrections agencies from placing transgender inmates into men's or women's units solely based on their anatomy at birth.[114]
Also in 2016, HUD declared that homeless shelters it funds must give transgender people the option of being housed with the gender with which they identify.[115]
In 2018, the Transgender Offender Manual of the U.S. Federal Bureau of Prisons was revised; the revision removed the sentence, "The TEC [Transgender Executive Council] will recommend housing by gender identity when appropriate", and instead declared that housing for transgender inmates would be chosen on "a case-by-case basis". The revision also said that transgender inmate housing "will use biological sex as the initial determination", with gender identity being used to decide housing only "in rare cases".[116]
Marriage and parenting
In 1976 the legal case
In the 1999 case
In the 2001 case In re Estate of Gardiner (2001)[121] the Kansas Appellate Court applied a different standard to the marriage of transgender woman J'Noel Gardiner, concluding 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.
Gardiner ultimately lost her case in the Kansas Supreme Court, which declared her marriage invalid.[122]
In 2002 transgender man
The 2005 case re Jose Mauricio LOVO-Lara, 23 I&N Dec. 746 (BIA 2005)[126] considered marriage under federal law, as it pertains to immigration. The Board of Immigration Appeals (a federal body under the US Department of Justice) 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."
See also
- Transgender history
- Current issues of gender inequality in the United States for transgender people
- History of the transgender movement in the United States
- List of transgender-rights organizations in the United States
- Transgender people's legal rights in the United States
- Transgender disenfranchisement in the United States
- Transphobia in the United States
- LGBT people in prison
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Further reading
- "Milestones in the American Transgender Movement". New York Times. May 15, 2015. Retrieved June 29, 2017.
- "Examples of Court Decisions Supporting Coverage of LGBT-Related Discrimination Under Title VII". U.S. Equal Employment Opportunity Commission. Retrieved June 29, 2017.