Transgender Rights

Transgender Rights

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LGBTQ Legal Resource Center

The Criminal Justice System

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Healthcare Rights of LGBTQ Individuals

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Transgender individuals suffer inequity in many aspects of their lives, including in schools, at workplaces, in the military, in prison, and as parents. They may also lack sufficient access to appropriate healthcare and access to public accommodations and restrooms. Although some progress has been made in the area of rights for gay, lesbian, and bisexual individuals, the area of transgender rights has been slower to evolve.
In some contexts, there are federal, state, or local laws prohibiting discrimination against transgender individuals. In other areas, policies exist, but often have no real teeth, remaining mere guidance for administrative bodies rather than a legally sanctioned deterrent to discriminatory or hostile conduct. Certain policies that actively hinder transgender individuals are still in effect, such as a ban on being publicly out in the military.
Parents who come out as transgender or those who transition after having children sometimes find that their former partner or spouse can use this information to restrict custody or visitation.
While courts generally look at the best interests of the child in these situations, each state approaches the factors that are considered relevant to a child's best interests differently. Usually, however, they assume that children benefit from knowing both of their parents and visitation is granted liberally. The outcome of child custody proceedings when a parent is transgender is difficult to predict, however. You should retain an experienced family lawyer who understands gender orientation and parental rights as a result.
Healthcare law for transgender patients changed significantly in 2014. The federal Affordable Care Act includes anti-discrimination provisions that pertain to transgender people. For example, insurance plans cannot refuse to cover you on the grounds that your gender identity is considered a pre-existing condition. Health programs and organizations that are funded and administered by the federal government also cannot discriminate against you because of your transgender status or in instances where the staff believes you do not conform to gender stereotypes and interprets this in a negative light. The future of the Affordable Care Act remains uncertain in the current political situation, but at present it remains in effect.
The Eighth Amendment of the Constitution and the 2003 Prison Rape Elimination Act (PREA) provide guarantees about the health and safety of transgender prisoners. Under the Eighth Amendment, a prison is required to provide its transgender inmates with adequate healthcare to address serious medical needs. Gender dysphoria is considered a serious medical need. Prisoners' rights include the right to be treated for gender dysphoria.
Transgender people immigrate to the United States for many different reasons, some using federally recognized processes and documents that verify their legal status and others becoming undocumented immigrants. It is estimated that at least 15,000 to 50,000 undocumented LGBTQ immigrants are transgender. Fear of persecution or violence based on gender identity can be the basis for asylum relief, or withholding of removal or relief under the Convention Against Torture for undocumented immigrants.
Military service is an area where transgender individuals are actively discriminated against. Although "Don't Ask, Don't Tell" was repealed for gay, lesbian, and bisexual military service members in 2011, it has stayed in effect for transgender individuals. To date, about 15,500 transgender service members serve in the military without being able to disclose their gender identity. However, active duty service members currently need to be aware that trying to change their name or gender in military records, or disclosing their gender identities to others, may jeopardize their position in the military and put them at risk of being discharged.
Public accommodations are sites like libraries, hospitals, restaurants, grocery stores, and homeless shelters that offer the public goods and services. Transgender people often experience discrimination while using public accommodations. While federal anti-discrimination laws don't prohibit discrimination in public accommodations on the basis of sex, sexual orientation, or gender identity, many states and cities do outlaw sex discrimination in local laws or ordinances. Transgender individuals can bring claims on the grounds that "sex" includes gender identity, and some courts have interpreted the term inclusively.
Airport security provided by the Transportation Security Agency (TSA) involves invasive body imaging as well as pat-downs to screen passengers. These protocols can cause transgender travelers to feel particularly uncomfortable. You may elect to either being screened with a full-body scanner or a pat down. If you feel your screening was inappropriate, you can request to speak to a supervisor, file a complaint through the United States Department of Homeland Security's Travel Redress Program, or contact the TSA Office of Civil Rights.
The primary protection for transgender and gender nonconforming students is Title IX, which prohibits sex discrimination in any school that receives federal funding, including secondary schools, colleges, and universities. Courts interpret "sex discrimination" inclusively and include discrimination against transgender individuals. However, religious institutions may obtain exemptions from Title IX.
It is critical for transgender individuals to understand their rights in terms of identification documents . Unfortunately, the agencies that issue identity documents, including driver's licenses, birth certificates, and passports, each have different requirements for changing names and gender markers. In many states, you can start by petitioning the court to change your name and gender. However, some states are altering the process by which transgender individuals can change these markers. For example, in California, you can submit a form and doctor's letter to the Department of Health to amend certain documents such as a birth certificate once you receive a court-ordered name and gender change, rather than having to return to court on multiple occasions.

LGBTQ Legal Resource Center Contents

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Bridge v. Oklahoma State Department of Education
Lambda Legal, the ACLU, and the ACLU of Oklahoma have brought a legal challenge on behalf of three transgender students to S.B. 615, which bans all transgender students in Oklahoma from using school restrooms consistent with their gender identity.

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Dekker, et al., v. Marstiller, et al.
LGBTQ+ and health advocacy groups filed a federal lawsuit today challenging Florida’s anti-transgender health care rule denying coverage for transgender Medicaid beneficiaries’ medically necessary gender-affirming medical care.

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PFLAG v. Abbott
Lambda Legal, the American Civil Liberties Union, and the ACLU of Texas, along with Texas-based law firm Baker Botts LLP, filed a new lawsuit in Texas state court on behalf of PFLAG National and three Texas families. The suit requests that the court block state investigations of PFLAG families in Texas who are supporting their transgender children with medically necessary health care.

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Transgender people suffer persistent inequalities in aspects of life that intersect with all of Lambda Legal's issue area priorities. Transgender people experience rampant workplace discrimination, may be met with challenges to their parental relationships, lack sufficient access to quality healthcare free from discrimination and face difficulties in obtaining appropriate name and gender designations on their identity documents. Lambda Legal expands and defends protections for transgender people under federal, state and local laws and other policies.

Tom Head, Ph.D., is a historian specializing in the history of ethics, religion, and ideas. He has authored or co-authored 29 nonfiction books, including "Civil Liberties: A Beginner's Guide."

Head, Tom. "A History of Transgender Rights in the United States." ThoughtCo, Feb. 16, 2021, thoughtco.com/transgender-rights-in-the-united-states-721319.
Head, Tom. (2021, February 16). A History of Transgender Rights in the United States. Retrieved from https://www.thoughtco.com/transgender-rights-in-the-united-states-721319
Head, Tom. "A History of Transgender Rights in the United States." ThoughtCo. https://www.thoughtco.com/transgender-rights-in-the-united-states-721319 (accessed September 23, 2022).

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History is replete with examples of transgender people. The Indian hijras, the Israeli sarisim (eunuchs), and the Roman emperor Elagabalus all fell into this category. Early English colonialists in Africa, like Andrew Battel, even described the Imbangala tribe as "beastly" for living with feminine people assigned male at birth who were kept among the wives. While trans individuals have existed for centuries, the national movement to give them civil rights in the United States has only recently taken place.

The Fourteenth Amendment to the U.S. Constitution is ratified. The equal protection and due process clauses in Section 1 would implicitly include transgender persons, as well as any other identifiable group:

While the Supreme Court has not fully embraced the Amendment's implications for transgender rights, these clauses will presumably form the basis of future rulings.

German physician Magnus Hirschfeld coins the term "transsexual" in a published journal article titled "The Intersexual Constitution" ("Die intersexuelle Konstitution").

Despite the continued use of "transsexual" in some medical settings and even personal use by some trans people, the term is widely considered to be offensive. It is safest to use the terms "trans" or "transgender" as adjectives to refer to trans people (ex. "trans man," "trans non-binary," "transgender woman").

Transgender and transsexual are not synonyms. Transgender is an umbrella term that refers to people who don't identify with the gender associated with the sex assigned to them at birth. "Transsexual" is used by medical professionals to discuss trans people who do undergo medical transition. However, not all transgender people pursue medical transition.

The term "trans" may be used to refer to members of transgender communities regardless of medical transition status.

San Francisco physician Harry Benjamin pioneers the use of hormone therapy in the treatment of trans patients. Benjamin was interested in the fields of anti-aging and sexual identity, believing that it was possible for individuals to feel as if they had been assigned the wrong sex at birth. He advised one such patient to have a sex reassignment surgery in Europe. Doubtful that psychotherapy could help patients who felt this way, Benjamin advocated for hormone therapy and surgery to help trans people live as their true gender.

Christine Jorgensen, a trans woman , is denied a New York marriage license based on the sex she was assigned at birth. Her fiance, Howard Knox, was fired from his job when rumors of their attempt to marry became public. Jorgensen used the publicity her case generated to become a spokeswoman and activist for the trans community.

The Stonewall riots, which arguably sparked the modern gay rights movement , is sparked by Marsha P. Johnson throwing the first brick and Stormé DeLarverie's initial scuffles with police. Marsha, having co-founded groups such as STAR (Street Transvestite Action Revolutionaries) with fellow LGBTQ activist, Sylvia Rivera, would become one of the nation's most radical champions of trans rights.

In M.T. v. J.T. , the Superior Court of New Jersey rules that trans persons may marry on the basis of their gender identity, regardless of their assigned sex at birth. This landmark case found that the plaintiff, M.T., was entitled to receive spousal support after her husband, J.T., left her and stopped supporting her financially. The court decided that J.T.'s marriage was valid and she deserved support, in part, because she'd had sex reassignment surgery.

Ann Hopkins is denied a promotion on the basis that she is not, in the opinion of management, sufficiently feminine. She sues, and the U.S. Supreme Court rules that gender stereotyping can form the basis of a
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