Transgender Legal Rights
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.
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.
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.
Criminal Justice and Prisoners’ Rights
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 used to be actively discriminated against until recently. Although "Don't Ask, Don't Tell" was repealed for gay, lesbian, and bisexual military service members in 2011, it remained in effect until 2016 for transgender individuals. A ban on transgender service members resurfaced during the administration of President Donald Trump. President Joseph Biden then repealed the ban after taking office in 2021.
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 be 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. There is some controversy over whether "sex discrimination" under this law includes discrimination against transgender individuals. The Department of Education announced in 2021 that it interprets the law inclusively, but a federal judge in Tennessee blocked the implementation of this interpretation against some states in 2022. As of 2023, proposed rules consolidating this interpretation remain pending.
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.
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