Representing
Transsexual Clients: Selected Legal Issues
Last updated: October,
2003
By
Shannon
Minter
© 2003
Legal
Director, National
Center
870
Market Street, Suite 570 ,
San
Francisco ,
CA
94102
415-392-6257; Minter@nclrights.org
I.
Introduction
The
existence of individuals who live as members of the other gender and whom we would now
likely identify as “transsexual” has been documented throughout human history.[1] In contrast, the contemporary medical treatments
that comprise sex-reassignment have only been available for about forty years. As a
medical condition, transsexualism is defined as "the desire to change one’s
anatomic sexual characteristics to conform physically with one’s perception of self
as a member of the opposite sex."[2] Transsexualism is technically classified as a
specific form of a broader psychiatric disorder termed "gender identity
disorder," also known as “gender dysphoria.”[3] The only recognized treatment for transsexualism is
medical, not psychiatric. The medically
prescribed treatment for transsexualism consists of three components: (1) hormone therapy; (2) living as a member of the
other sex (known as the “real life experience”); and (3) sex-reassignment
surgeries.[4]
As
medical treatments for transsexualism have developed, transsexual people have
sought—and, increasingly, received—legal protection in the areas of employment
discrimination, marriage, child custody, health care, prison safety, hate crimes
legislation, and asylum.[5]
II.
Employment
Discrimination
[1]
Disability Laws
[a] Federal Disability Laws
Transsexual
people currently have no established protection under federal laws that prohibit
discrimination on the basis of handicap or disability.
Transsexualism has been recognized as a medical condition for many years and is
included as a psychiatric disorder in the DSM under the rubric of "gender identity
disorder." Nonetheless, both the
Rehabilitation Act of 1973 ("Rehabilitation Act") and the Americans with
Disabilities Act ("
[b] State Disability Laws
Most
states and the
More
often, however, state courts and administrative agencies have found that transsexualism is
a protected disability under state laws. For
example, an appellate court in
At
the administrative level, state agencies responsible
for enforcing state disability protection laws have issued favorable rulings for
transsexual plaintiffs in at least five states. In 1996, the Oregon Bureau of Labor and
Industry ruled that a transsexual woman who was fired from her job as a result of her
transition was protected from employment discrimination under
[2]
Federal Sex Discrimination Laws
[a]
Title VII
Until
very recently, federal courts uniformly held that transsexual people are not protected
under Title VII's prohibition of sex discrimination, on the ground that the term
“sex” must be narrowly construed to mean a person’s biological sex at
birth, and that Congress did not intend Title VII to protect transsexual people.[13]
Over
the past decade, however, the rationales in these decisions have been undercut by the
Supreme Court’s increasingly expansive interpretation of Title VII in other contexts.[14] As a result, both the Ninth Circuit and the First
Circuit have issued favorable decisions holding that transsexual or, more broadly, gender
non-conforming persons, are protected from discrimination under Title VII and other sex
discrimination statutes.[15] In addition, federal district courts are
increasingly refusing to dismiss Title VII claims brought by transsexual plaintiffs and
permitting such claims to proceed to trial.[16]
[b]
Title IX
In
1997, a federal district court in
In
addition, at least one federal district court has recognized that harassment based on
failure to conform to gender stereotypes is also prohibited under Title IX.[21]
[3]
State Sex Discrimination Laws
In
the past, employment discrimination cases brought under state laws prohibiting sex
discrimination have been unsuccessful.[22] More recently, however, courts[23]
and administrative agencies[24]
have uniformly interpreted state and local sex discrimination laws to include transsexual
people. Based on this strong trend, state sex discrimination claims are currently the most
viable avenue of protection for transgender and transsexual employees.
[4]
State Laws Prohibiting Sexual Orientation Discrimination
Fourteen
states and the
In
practice, however, transsexual people are often mistakenly perceived to be lesbian, gay,
or bisexual. If a transsexual person is discriminated against based on this mistaken
belief, then the transsexual person may have a viable claim of sexual orientation
discrimination in states in which there is protection against such conduct.[28]
[5]
State Laws Protecting Transgender People
Four
states expressly, by statute, prohibit discrimination against transgender people.
In
2001, the Minnesota Supreme Court held that this statutory language does not prohibit an
employer from requiring employees to use the restroom facilities corresponding to their
biological sex.[30] The plaintiff in Goins was a transsexual woman who
had undergone extensive medical treatments to alter her biological sex. Nonetheless, she did not argue that she should be
considered biologically female. Rather, she
argued that the statute should be interpreted to prohibit employers from inquiring into an
employee’s biological sex and to require employers to accept the employee’s
self-image as female or male.[31] The Minnesota Supreme Court rejected this broad
construction of the statute. Accordingly, to
state a viable claim, future transsexual plaintiffs who are denied access to appropriate
restrooms should argue (and be prepared to present evidence) that they have altered their
biological sex by undergoing sex-reassignment.
In 2001,
a
person's actual or perceived gender, as well as a person's gender identity, gender-related
self image, gender-related appearance, or gender-related expression; whether or not that
gender identity, gender-related self image, gender-related appearance, or gender-related
expression is different from that traditionally associated with the person's sex at birth.[33]
In 2003,
Also in 2003,
California enacted AB 196, which clarifies that the definition of sex” in the California Fair Employment and
Housing Act (FEHA) includes "a
person’s actual or perceived sex, [including] a person’s identity or appearance,
whether or not that identity or appearance is different from that traditionally associated
with that person’s sex at birth."[35] Although the
new law does not go into effect until
[6] Local Ordinances Protecting Transgender People
Over
fifty localities have adopted ordinances prohibiting discrimination against transgender
people. Jurisdictions that have passed such
laws include, among others:
[7]
Employer Policies
Increasingly, both public
and private employers are broadening their non-discrimination policies to include
transgender and transsexual employees. Employers
who have taken this step include American Airlines, Intel, Lucent Technologies, Apple
Computer, Box Office Tickets, Inc., the City of Dallas, Texas, the City of Lexington,
Kentucky, and the City of Decatur, Georgia, among others.[37]
III.
Marriage
[1] Transsexual Transition within an Existing Marriage.
What
happens to the validity of an existing marriage when one of the spouses undergoes
sex-reassignment? There are no published
decisions on this issue. So long as both
spouses want to stay in the marriage and continue to live as a married couple, many
couples in this situation have avoided legal problems, in large part because there are
relatively few situations in which anyone other than one of the spouses has legal standing
to challenge the validity of a marriage. Legal problems may arise when one spouse dies and
the other attempts to collect survivorship benefits or to claim inheritance or other tax
benefits that are restricted to married couples. Alternatively, an employer or health
insurance company may challenge the validity of the marriage in the context of trying to
exclude the spouse from an employer-provided health plan.
Under longstanding legal principles, the validity of a marriage is determined at
the time the marriage is created; moreover, once a valid marriage exists, there is nothing
other than death or divorce that can dissolve it. These
principles support the view that a marriage in which one of the spouses undergoes
sex-reassignment continues to be valid.
[2]
The Right to Marry
[a]
Case Law
Only
a handful of courts have ruled on the validity of a marriage entered into after a
transsexual person has undergone sex-reassignment. At
least two courts have recognized the individual’s reassigned sex for the purpose of
marriage.[38] In contrast, a few courts have ruled that, for
purposes of marriage, a person’s legal sex is irrevocably determined at birth. In 2002, the Kansas Supreme Court ruled that the
marriage between J’Noel Gardiner, a male-to-female transsexual, and her deceased
husband was invalid, even though she had undergone sex-reassignment many years prior to
the marriage.[39] An appellate court in
[b]
Birth Certificate Statutes
The
vast majority of states have laws or administrative policies allowing a transsexual person
to change the sex designation on his or her birth certificate. States with statutes
allowing a transsexual person who has undergone sex-reassignment to change his or her
birth certificate include AZ, CA, CO, GE, HI, IL, IA, LA, MA, MD, MI, NC, NE, NJ, NM, OR,
UT, and WI. Others have administrative
policies to the same effect. This is
important, because by allowing birth certificate changes, a state is acknowledging that
changing one's sex is legally possible.[42] Courts in
[c]
Parental rights
A
transsexual person who marries and has children (through donor insemination, adoption,
surrogacy, or some other route) is in a potentially vulnerable legal situation as a
parent. If the other parent successfully
argues that the marriage was never valid, then the transsexual person's parental status
and parental rights may be jeopardized. At
least in some states, however, a transsexual parent may be able to argue that the other
parent should be estopped from challenging his or her parental status, even if the
underlying marriage is held to be invalid.[44]
IV.
Child
Custody
Some
courts have held that a parent’s transgender status is not relevant to child custody
unless there is specific evidence of harm to the child.
In Christian v.
More
commonly, however, transgender and transsexual parents face tremendous discrimination in
child custody and visitation decisions.
[1]
Termination of Parental Rights
At
least one court has terminated a transsexual parent's parental rights. In Daly v. Daly,
715 P.2d 56 (Nevada 1986),[46]
the Nevada Supreme Court characterized a male-to-female transsexual parent as
“selfish” and terminated his parental rights, stating: “It was strictly Tim Daly's choice to discard
his fatherhood and assume the role of a female who could never be either mother or sister
to his daughter.”
[2]
Restrictions on Custody or Visitation
Several
courts have granted custody or visitation to transgender parents only when the parent
agreed to hide his or her transgender status.[47] Other courts have restricted or denied visitation
to transsexual parents.[48]
V.
Health
Care
[1]
Medicare
And CHAMPUS
Medicare
does not pay for sex reassignment surgeries. Medicare
Program: National Coverage Decisions, 54 Fed.
[2]
Medicaid
In contrast, there is no exclusion of sex-reassignment under the federal Medicaid statute. As a result, almost every court that has ever considered the issue has concluded that States cannot categorically exclude sex reassignment surgeries from Medicaid coverage.[49] Despite these holdings, many state Medicaid statutes contain a blanket exclusion for procedures related to sex-reassignment.[50]
In
addition, even in states with positive case law on this issue, as a practical matter, it
is extremely difficult to obtain Medicaid reimbursement for medical procedures related to
sex-reassignment (especially surgery). This is
true for a number of reasons, including, among others:
(1) the front line Medicaid staff who process Medicaid claims often automatically
deny claims from transsexual persons based on the mistaken belief that the procedures are
cosmetic or experimental, or based on the mistaken belief that the procedures are
categorically excluded; (2) transsexual persons and their health care providers often fail
to submit adequate documentation supporting the medical necessity of particular
procedures, based on a lack of familiarity with the legal requirements for showing medical
necessity; (3) advocates and attorneys often fail to provide adequate representation for
transsexual persons, based on prejudice, ignorance, or an inability to find information
and models of good advocacy; (4) health care providers who specialize in transgender
issues often do not accept Medicaid patients.
Transsexual
people who have completed sex reassignment are also frequently denied routine medical
treatments appropriate to their new sex. In
the first published decision to address this form of discrimination, the Superior Court of
Massachusetts held that a transsexual woman who had undergone sex reassignment over 25
years earlier could not be denied medically necessary breast reconstruction surgery simply
because she is transsexual. Beger v. Division of Medical Assistance (2000
[3]
Private Insurance
Private
insurance is largely governed by contract law. In the absence of an explicit contractual
provision specifying that the insurance company will not pay for sex-reassignment
treatment, transsexual people have won claims requiring the company to pay for surgeries.[51] In addition, while most insurance plans expressly
exclude services related to sex-reassignment, there is anecdotal evidence that growing
numbers of transsexual individuals are successfully challenging these exclusions through
internal appeals procedures.[52]
Thus
far, there have been few attempts to litigate employers’ refusal to provide equal
health benefits to transsexual employees under non-discrimination statutes. In Mario v.
P. & C. Food Markets, Inc., 2002
VI.
Prison
Issues
[1]
Sexual Violence
It
is well established that prison officials have a duty to protect prisoners from violence
at the hands of other prisoners. Prison officials who display a "deliberate
indifference" to this duty are liable under the Eight Amendment prohibition of cruel
and unusual punishment.
Transsexual
people who have not had genital surgery are generally classified according to their birth
sex for purposes of prison housing—a situation which puts male-to-female transsexuals
at great risk of sexual violence. In Farmer v. Brennan,[53]
a case involving a transsexual prisoner who was beaten and raped by her cellmate, the
Supreme Court adopted a very narrow interpretation of “deliberate indifference”:
Petitioner
is a transsexual who is currently serving a 20-year sentence in an all-male federal prison
for credit card fraud. Although a biological
male, petitioner has undergone treatment for silicone breast implants and unsuccessful
surgery to have his [sic] testicles removed. Despite
his [sic] overtly feminine characteristics and his [sic] previous segregation at a
different federal prison because of safety concerns, …prison officials at the United
States penitentiary in Terre Haute, Indiana housed him [sic] in the general population of
that maximum-security prison. Less than two
weeks later, petitioner was brutally beaten and raped by another inmate in
petitioner’s cell.[54]
The
Court rejected Farmer's theory that prison officials should be held to an objective standard of liability, i.e.,
prison officials should be liable for risks to prisoner safety when those risks are
obvious enough that officials "should have known" the prisoner was in danger.
Instead, the Court held that a prison official is not liable “unless the official
knows of and disregards an excessive risk to inmate health or safety; the official must
both be aware of facts from which the inference could be drawn that a substantial risk of
serious harm exists, and he must also draw the inference.”[55] In other words, prison officials are not liable for
violence inflicted on a transsexual prisoner by other prisoners unless they have actual subjective knowledge that the transsexual
prisoner is at risk and deliberately fail to act on that knowledge.[56]
To protect
transsexual women housed in male prisons from the risk of violence, prison officials
sometimes separate them from other prisoners. This is referred to as "administrative
segregation." While placing a transsexual
woman in administrative segregation may provide greater protection, it also results in
exclusion from recreation, educational and occupational opportunities, and associational
rights.[57]
[2] Access to
Hormone Therapy and Sex-Reassignment Surgeries
The
issue of whether a transsexual person is entitled to hormone therapy or sex-reassignment
surgery while in prison has been litigated extensively, based on the established
constitutional principle that it is a violation of the Eighth Amendment prohibition
against cruel and unusual punishment for prison officials to exhibit "deliberate
indifference" to a prisoner's "serious medical needs." In the past, courts almost always ruled in favor of
prison officials.[58] Recently,
however, prisoners have had more success in challenging denials of hormone therapy.
In De’Lonta
v. Angelone, 330 F.3d 630 (4th Cir. 2003), the Fourth Circuit held that a
transsexual prisoner had alleged facts sufficient to establish that the denial of
treatment for her compulsion to mutilate herself constituted deliberate indifference to
her medical needs. The court also held that
the prison’s refusal to provide her with hormone treatment was based solely on a
policy rather than on a medical judgment concerning the prisoner’s specific
circumstances. In Kosilek v. Maloney, 221 F. Supp.2d 156 (D. Mass. 2002), a federal district court held that
the plaintiff’s gender identity disorder constituted a serious medical need and
directed prison officials to provide adequate treatment.
In South v. Gomez, 211 F.2d 1275
(9th Cir. 2000), the Ninth Circuit held that prison officials violated the Eighth
Amendment by abruptly terminating a prisoner’s course of hormone therapy when she was
transferred to a new facility. Similarly, in Wolfe v. Horn, 130 F. Supp. 2d 648 (E.D. Pa. 2001),
the court held that abrupt termination of prescribed hormonal treatment by a prison
official with no understanding of the plaintiff’s condition, and failure to treat her
severe withdrawal symptoms or after-effects, could constitute "deliberate
indifference." See also Phillips v.
Michigan Department of Corrections, 731 F. Supp. 792 (W.D. Mich. 1990), aff’d,
932 F.2d 969 (6th Cir. 1991) (granting preliminary injunction directing prison
officials to provide estrogen therapy to a pre-operative transsexual woman who had been
taking estrogen for several years prior to her transfer to a new prison and distinguishing
failure "to provide an inmate with care that would improve his or her medical state,
such as refusing to provide sex reassignment surgery" from "[t]aking measures
which actually reverse the effects of years of healing medical treatment").
VII.
Hate
Crimes
In
1998,
VIII. Immigration and Asylum
Neither
the
In
a groundbreaking decision, in 2000, the Ninth Circuit
held that Geovanni Hernandez-Montiel, a transgender youth from
VIII.
Additional
Resources
(1)
A Legal Guide to Child Custody and Selected Family Law Issues for Transgended Parents
is available from the National Center for Lesbian Rights, 870 Market Street, Suite 570,
San Francisco, CA 94102; (415) 392-6257; www.nclrights.org;
info@nclrights.org.
(2)
(3)
(4) Other publications on
transgender legal issues are available from the Transgender Law & Policy Institute, http://www.transgenderlaw.org; info@transgenderlaw.
(5) For information on state laws
and policies relating to the issuance of new birth certificates for transsexual people,
see http://www.drbecky.com/birthcert.html.
(6) For information relating to legislation protecting transgender people, contact the Transgender Civil Rights Project of the National Gay & Lesbian Task Force at 202-393-5177, www.ngltf.org.
(7) For information relating to employer policies prohibiting discrimination against transgender employees, contact the Human Rights Campaign, at 202-628-4160, www.hrc.org.
(8) For additional legal materials relating to transgender people, see the webiste of attorney Phyllis Randolph Frye at www.transgenderlegal.org.
(9) For more information on transgender parenting issues, see www.geocities.com/transparentcy.
(10) For more information on medical issues for transsexual people, contact the Harry Benjamin International Gender Dysphoria Association at www.hbigda.org.
(11) For information on transgender legal issues outside the
(12) For information and assistance regarding transgender legal
issues in
[1] See, e.g., Leslie Feinberg, Transgender Warriors: Making History From Joan of Arc to RuPaul (1997).
[2] Stedman’s Medical Dictionary 1841 (26th ed. 1995).
[3] American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders IV (1994).
[4] See Harry Benjamin International Gender Dysphoria Association, Standards Of Care for the Diagnosis and Treatment of Gender Identity Disorders (Sixth Edition, February 2001) (www.hbigda.org).
[5] The Transgender Law & Policy Institute provides regular updates on legislation and litigation affecting transsexual people. See www.transgenderlaw.org.