Transgender disenfranchisement in the United States
Transgender individuals have a wide range of gender identities, meaning that their identity or behavior can fall outside of gender norms. Many policies in the United States were enacted at a time when the understanding of "gender reassignment" was that, in order for a transition to be considered complete, the transgender individual had to undergo sex reassignment surgery. However, modern health experts' current understanding of gender transitions is that transitions are an individualized process that can involve a variety of steps- sometimes involving surgery, but often not. Often a transgender person will have legal ID that represents the gender they were assigned at birth regardless if that is the gender they accept as their own or are transitioning from.
Voter identification laws
Voter ID history
The earliest voter ID law in the United States was passed in Virginia in 1999. The law required voters to present forms of ID such as a Social Security Card, a state voter registration card, a Virginia drivers license, or valid employee identification bearing the card holder’s signature. A Virginia high court blocked the law from being implemented by upholding an injunction granted to Democrats in the state.
After George W. Bush won the United States presidential election in 2000 by only 537 votes in Florida, the Republican Party tried to position voter fraud as an important issue in American politics, to be solved by schemes for voter identification. It has never been established as a substantive problem, despite Republican rhetoric about it as an issue.
Congress passed the Help America Vote Act (HAVA) in 2002. This resulted in many states passing similar voter identification laws, which generally result in reducing the vote among poorer or immigrant voters. HAVA states that an individual must present “to the appropriate State or local election official a current and valid photo identification” or they must present “a copy of a current utility bill, bank statement, government check, paycheck, or other government document that shows the name and address of the voter." Since the passing of HAVA, thirty-two states have created various stricter voter identification laws that require certain forms of identifications to provide at the polls in that particular state.
In 2005, Indiana passed a law that required voters to show a photo ID in order to cast a ballot at the polls. This law was challenged in a lawsuit that was eventually brought before the United States Supreme Court. The petitioners in Crawford v. Marion County Election Board claimed that the voter-identification law might have imposed a special burden on some voters. However, Justice Scalia, joined by Justice Thomas and Justice Alito, asserted that this burden was “minimal and justified.” Furthermore, they declared that the law’s photo identification requirements were “reasonable because the burden of acquiring, possessing, and showing a free photo identification is not a significant increase over the usual voting burdens, and the State’s stated interests are sufficient to sustain that minimal burden.” After the Court ruled that the law was constitutional, many other states enacted similar voter identification laws.
Transgender identification documents
Many policies related to changing an individual's gender on identity documents in the United States emphasize surgical status and require the individual to produce evidence that they have undergone surgical sex reassignment surgery. Such procedures are often extremely costly and rarely covered by health insurance companies. As the transgender community is subject to high rates of employment discrimination and poverty, sex reassignment surgery is not always an option for transgender individuals. Additionally, some individuals choose not to have surgeries for medical reasons or because they do not personally feel that it is essential to their transition. Although there are numerous reasons why individuals may not undergo sex reassignment surgery, having such surgery has a positive correlation to the individual's attaining a change in identification documents that reflects the self-identified gender.
The National Gay and Lesbian Taskforces' 2011 National Transgender Discrimination Survey states that, of the people who identify as transgender, only 21% have been able to update all of their IDs and records with their correct gender. Some 33% have not updated any of their IDs or records.
Following are some documents commonly used for voting that may present difficulties for transgender individuals:
- Drivers License- In 2011, 59% of transgender citizens had updated the gender on their driver’s license/state ID. 81% of transgender people who had some type of surgery had been successful in updating their drivers license. Of those who did not have surgery, 37% of transgender people have been successful in updating their driver's license.
- Passport- The United States Department of State recently modified the requirements for updating passports to better accommodate transgender people. While these revisions strive to make obtaining a passport with one’s correct gender more accessible, the costs of acquiring or updating a passport may still discourage some transgender people from doing so. In 2011, 26% of transgender individuals had updated their passport.
- Military ID- Military retiree ID cards provide a possible option for some transgender people as they do not display gender on them. However, these cards are only available to those who served in the military and not accessible to all transgender people.
- Social Security Card- Social Security cards are one of the few government-issued IDs that do not list gender on them, however, the Social Security Administration keeps a record of gender. Until 2013, the Administration required proof of sex reassignment surgery to update its records, but current policy holds that surgery is not required; instead, the Administration will accept as proof of a new gender any of: a full-validity U.S. passport, a state birth certificate showing the new gender, a court order ordering legal recognition of the new gender, or a physician's statement that the individual "has had appropriate clinical treatment for gender transition to the new gender." While the Social Security cards, themselves, do not list gender on them and therefore provide a hopeful option for transgender voters, only four states allow Social Security cards as proper voter identification and one state allows for Social Security numbers to be used for provisional ballots.
- Utility Bill- In accordance with the Help America Vote Act, some states allow voters to use two forms of identification that only list name and address, such as a utility bill. While this generally alleviates the issue of having to change one’s gender on a document, it poses another issue as the transgender community struggles with the homelessness of many of its members. In 2011, many transgender individuals reported various forms of direct housing discrimination as 19% claimed that they had been refused a home or apartment and 11% claimed that they had been evicted simply due to their gender identity/expression. Additionally, there is no federal protection against employment discrimination for transgender people and transgender individuals who had lost their job due to discrimination in the workplace were four times more likely to be homeless than those who were able to maintain their jobs.
- Birth Certificate- While birth certificates can be used as voter identification in non photo identification states, birth certificate laws are established at the state level and commonly require that the individual undergo surgery in order for the gender on the document to be updated. Some states even make it mandatory that transgender people acquire a court order in order to change the gender on their birth certificate which presents even more financial obstacles. The first case to dealing with transgender identity in the United States was Mtr. of Anonymous v. Weiner in 1966. A post-operative male-to-female trans woman applied for a change of sex on her birth certificate through the Bureau of Vital Statistics in the New York City Health Department. The Bureau turned to the Board of Health who then called on a committee on public health of the New York Academy of Medicine to make a recommendation. The application was ultimately denied and the Board of Health stated that, "'an individual born one sex cannot be changed for the reasons proposed by the request which was made to us. Sex can be changed where there is an error, of course, but not when there is a later attempt to change psychological orientation of the patient and including such surgery as goes with it."
|This section is outdated. (October 2014)|
It is estimated that by requiring voters to present a government issued photo ID at the polls, over 25,000 transgender people in these states will face substantial barriers and be disenfranchised from voting in the November 2012 election. A report issued by the Williams Institute estimated the total transgender voting-eligible population for these states by multiplying the current population of each state by .3%, which is the percentage of the adult population that is estimated to identify as transgender in the United States. The report then accounted for ineligible transgender citizens whose voting rights are restricted due to having ever been convicted of a felony. It is estimated that there are 88,000 eligible transgender voters in these nine strict photo ID states, however approximately 25,000 do not have identification or records that reflect their gender and therefore may be disenfranchised in the coming elections. In these nine states, transgender voters who present as a gender opposite the sex listed on their ID will be required to present this ID in order to vote. At that point, it is up to the discretion of the poll workers and election officials to decide whether or not the presented ID matches the voter, which can result in allegations of voter fraud or the vote not being counted.
Because the issue of transgender voter disenfranchisement has not been explicitly addressed in any court cases since strict voter registration laws have been in place, it is unlikely that these workers will have any training on how to accommodate these individuals and can decide that a transgender person is not who they say they are simply because the sex on their ID does not match the gender that they are presenting themselves as. In this situation, the individual will have to vote on a provisional ballot and will be required to provide the appropriate ID within a certain amount of time which, in the case of many transgender people, is not enough time to sufficiently change the gender on their identification.
Additionally, many transgender individuals are discouraged from voting under these photo identification circumstances because of prior experiences with presenting identification that does not accurately reflect their gender. 41% percent of transgender people reported being harassed in situations where they presented gender incongruent identification, while 15% reported being asked to leave the venue where the identification had been presented, and 3% reported being assaulted or attacked as a result of presenting their ID. Additionally, 22% percent reported being denied equal treatment or being verbally harassed by government officials.
In the United States, it is estimated that 5.3 million Americans have been rendered ineligible to vote due to laws that prohibit people with current or previous felony convictions from voting. The United States currently has 2.2 million people in the nation’s prisons or jails, making it the world’s leader in incarceration.
Felony disenfranchisement policies date back to the Colonial period and the founding of the United States. During that time, African Americans, women, illiterate people, poor people, and people with felony convictions were all excluded from suffrage. Today, all but one of those prohibitions have been eliminated, leaving people with felony convictions as the only category of citizens deliberately excluded from participation.
Laws regarding the voting rights of felons are established by individual states. Currently, there are 48 states (all but Maine and Vermont) that do not allow incarcerated felons in their state to vote. There are 35 states in which individuals on probation and/or parole are also barred from voting. In 12 states, individuals who have completed their entire sentence may still be kept from voting. Individuals with a felony conviction in the four most restrictive states: Iowa, Florida, Kentucky, and Virginia, three of which were in the former Confederacy, permanently lose their right to vote. This is in strong contrast to European nations, which enable convicted felons to vote after completing sentencing.
Transgender incarceration rates
Incarceration rates are relatively high within the transgender community, which prohibits many transgender individuals from voting. 7% of transgender people have been arrested or held in a cell solely as a result of police officer bias related to their gender identity/expression. Due to lack of employment discrimination protection, as well as high rates of homelessness and harassment, transgender incarceration rates are high in comparison to the general population. Overall, 16% of transgender people have reported being incarcerated at some point in their lives, as compared to 2.7% of the general American population. This high rate of transgender incarceration greatly disenfranchises the community, as that means approximately 16% of transgender people had lost their voting right at some point in their lives.
- Voter suppression in the United States
- Transgender inequality
- Felony disenfranchisement
- History of violence against LGBT people in the United States
- LGBT people in prison
- Legal aspects of transsexualism in the United States
- Voter ID laws in the United States
- Green, J. "Transgender Equality: A Handbook for Activists and Policy Makers Introduction" (PDF). National Gay and Lesbian Taskforce.
- Thaler, Cole. "What Does it Mean to be Real".
- Lewis, Bob (3 March 2000). "Voter ID Bill Narrowly Passes". The Free Lance Star.
- Melton, R.H. (23 October 1999). "Va. High Court Panel Bars Voter ID Plan". Washington Post.
- Eviatar, Daphne (1 October 2008). "Florida 2000 Redux?". The Washington Independent.
- "Help America Vote Act of 2002".
- Herman, Jody L. "The Potential Impact of Voter Identification Laws on Transgender Voters" (PDF). The Williams Institute.
- Barnes, Robert (29 April 2008). "High Court Upholds Indiana Law On Voter ID". The Washington Post.
- "CRAWFORD et al. v. MARION COUNTY ELECTION BOARD et al". Cornell University Law School.
- Grant, Jaime M. "Injustice at Every Turn" (PDF). The National Gay and Lesbian Taskforce.
- Grant, Jaime M. "Injustice at Every Turn" (PDF). National Gay and Lesbian Taskforce.
- "Frequently Asked Questions". Transgender American Veterans Association.
- See Social Security Administration, Legal Names and Changes to the Numident, Records Maintenance § 10212, Transmission 5 (June 14, 2013).
- See Social Security Administration, Changing Numident Data for Reasons Other Than Name Change, Records Maintenance § 10212.200(B)(2) (as of Mar. 19, 2015). The physician's certificate accepted by the Administration is the same as that accepted by the Department of State for permanently changing one's passport gender. Compare id. with 7 U.S. Dep't of State, Foreign Affairs Manual § 1300 appx. M, at 3-4.
- "Voter ID: State Requirements". National Conference of State Legislatures.
- "In re Gardiner Estate". Intersex Initiative.
- Herman, Jody L. "The Potential Impact of Voter Identification Laws on Transgender Voters" (PDF).
- "Felony Disenfranchisement". The Sentencing Project.
- Mauer, Marc. "Voting Behind Bars: An Argument for Voting by Prisoners" (PDF). The Sentencing Project.