Legal aspects of transsexualism in the United States

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There are many legal aspects regarding transsexualism in the United States. All jurisdictions in the United States recognize the two biological sexes of male and female and grant certain rights based on those sexes. This raises many legal issues for transgender people in areas such as legal identification and marriage.

In the United States, classifying a person's sex as male or female is left to the jurisdiction of the states. As is the case throughout the world, the degree to which a given state recognizes a transgender person as his or her desired sex varies and is dependent on factors such as the steps the person has taken in their transition, such as psychological therapy, hormone therapy, and sex reassignment surgery (SRS).

Discrimination and bias crime on the basis of gender identity and expression are other aspects of transgender law which continue to evolve.

Marriage[edit]

In Obergefell v. Hodges, the Supreme Court of the United States ruled that there is a right to marriage without regard to gender. While this is commonly understood as a ruling which eliminated barriers to same-sex marriage, it also meant that neither a person's sex assigned at birth nor their legal gender following gender transitioning can be used to determine their eligibility to marry. Prior to this ruling, however, the right of transgender people to marry were often subject to legal challenge - as were the status of their marriages after a process of transitioning, particularly in cases where an individual's birth gender was used in order to claim that a same-sex marriage had taken place.[1]

Cases[edit]

In 1959, Christine Jorgensen, a trans woman, was denied a marriage license by a clerk in New York City, on the basis that her birth certificate listed her as male,[2][3] however, Jorgensen did not pursue the matter in court.

The first case in the United States which found that post-operative transsexual people could marry in their post-operative sex was the New Jersey case M.T. v J.T., (1976). Here the court expressly considered the English Corbett v. Corbett decision, but rejected its reasoning.

In Littleton v. Prange, (1999),[4] Christie Lee Littleton, a post-operative male-to-female transsexual, argued to the Texas 4th Court of Appeals that her marriage to her genetically male husband (deceased) was legally binding and hence she was entitled to his estate. The court decided that plaintiff's gender is equal to her chromosomes, which were XY (male). The court subsequently invalidated her revision to her birth certificate, as well as her Kentucky marriage license, ruling "We hold, as a matter of law, that Christie Littleton is a male. As a male, Christie cannot be married to another male. Her marriage to Jonathon was invalid, and she cannot bring a cause of action as his surviving spouse." Plaintiff appealed to SCOTUS but it denied her Writ of Certiorari in 2000.[1]

The Kansas Appealate Court ruling in In re Estate of Gardiner (2001)[5] considers and rejects Littleton, preferring M.T. v. J.T. instead. In this case, the Kansas Appellate Court concludes 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." In 2002, the Kansas Supreme Court reversed the Appellate court decision in part, following Littleton.

The custody case of Michael Kantaras made national news.[6] Kantaras met another woman and filed for divorce in 1998, requesting primary custody of the children. Though he won that case in 2002, it was reversed on appeal in 2004 by the Florida Second District Court of Appeals,[7] upholding Forsythe's claim that the marriage was null and void because her ex-husband was still a woman and same-sex marriages were illegal in Florida.[8] Review was denied by the Florida Supreme Court.[9]

In re Jose Mauricio LOVO-Lara (2005),[10] the Board of Immigration Appeals 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."[10]

Before Obergefall v. Hodges, several courts had come to the conclusion that sex reassignments were not recognized for the purpose of marriage, including courts in Illinois, Texas, and New York.[citation needed]

Parental rights[edit]

There is little consistency across courts in the treatment of transgender parent in child custody and visitation cases. In some cases, a parent's transgender status is not weighed in a court decision; however, in others, rulings are made on the basis of a transgender person being presumed to be an inherently unfit parent.

Courts are generally allowed to base custody or visitation rulings only on factors that directly affect the best interests of the child. According to this principle, if a transgender parent's gender identity cannot be shown to hurt the child in any way, contact should not be limited, and other custody and visitation orders should not be changed for this reason. Many courts have upheld this principle and have treated transgender custody cases like any other child custody determination—by focusing on standard factors such as parental skills. In Mayfield v. Mayfield, for instance, the court upheld a transgender parent’s shared parenting plan because there was no evidence in the record that the parent would not be a "fit, loving and capable parent."[11]

Other times, courts claiming to consider a child's interests have ruled against the transgender parent, leading to said parent losing access to their children, solely on the basis of their gender identity. For example, in Cisek v. Cisek, the court terminated a transgender parent's visitation rights, holding that there was a risk of both mental and "social harm" to the children. The court asked whether the parent's sex change was "simply an indulgence of some fantasy."[12] An Ohio court imposed an indefinite moratorium on visitation based on the court's belief that it would be emotionally confusing for the children to see "their father as a woman."[11]

Reproductive rights[edit]

Transgender people who have not undergone sex reassignment surgery retain their reproductive organs and are able to procreate. However, many states mandate sex reassignment surgery in order for a trans person be fully legally recognized as their gender identity. This has been criticized as forcible sterilization. [13] Some transgender people wish to retain their biological ability to procreate. Others do not require hysterectomy, phalloplasty, metoidioplasty, penectomy, orchiectomy or vaginoplasty to treat their gender dysphoria. In these cases, the sexual reassignment surgery is considered medically unnecessary. Furthermore, sexual reassignment surgery is generally the final medical procedure in a complete sex change, and is a procedure which many transsexuals find financially prohibitive. [14]

Others advocate for a right to access assisted reproduction technology services and the preservation of reproductive tissue prior to sex reassignment surgery, which renders them infertile. This would include cryopreservation of semen in a sperm bank in the case of transsexual women and oocytes or ovum for transsexual men. For such individuals, access to surrogacy and in-vitro fertilization services is necessary to have children.[15]

Identity documents[edit]

Identity documents are a major area of legal concern for transgender people. Different procedures and requirements for legal name changes and gender marker changes on birth certificates, drivers licenses, social security identification and passports exist and can be inconsistent. Many states require sex reassignment surgery to change their name and gender marker. Also, documents which do not match each other can present difficulties in conducting personal affairs - particularly those which require multiple, matching forms of identification. Furthermore, having documents which do not match a person's gender presentation has been reported to lead to harassment and discrimination.[16][17]

Name change[edit]

Transgender people often seek legal recognition for a name change during a gender transition. Laws regarding name changes vary state-by-state. In some states under the common law, a transgender person can change his/her name to match the opposite sex, provided that the change does not perpetrate fraud or enable criminal intent. In other states, the process requires a court order or statute and can be more difficult. An applicant may be required to post legal notices in newspapers to announce the name change - rules that have been criticized on grounds of privacy rights and potentially endangering transgender people to targeted hate-crimes.[18] Some courts require medical or psychiatric documentation to justify a name change, despite having no similar requirement for individuals changing names for reasons other than gender transitioning.[19]

Birth certificates[edit]

Legal requirements each state has for altering the sex on one's birth certificate.
  State does not require SRS to alter sex on birth certificate
  Altering sex on birth certificate requires SRS12
  State does not alter sex on birth certificates for transsexuals
---- 1Some Texas officials have refused to amend the sex on birth certificates to reflect a sex change after the ruling Littleton v. Prange; however, a judge can order an amendment.
2Illinois does not require genital reconstruction surgery to amend the sex on birth certificates, but it does require proof of an "operation."
The procedure each state uses to alter the sex on one's birth certificate.
  New birth certificate is issued with correct sex designation
  Old birth certificate is amended to correct sex designation
  State does not alter sex on birth certificates for transsexual people

U.S. states make their own laws about birth certificates, and state courts have varied in their application of such laws to transsexual people. [20][21] A majority of states permit the name and sex to be changed on a birth certificate, either through amending the existing birth certificate or by issuing a new one. Many states, however, require medical proof of sterilization by sex reassignment surgery in order to warrant a gender marker change. Idaho, Kansas, Ohio, and Tennessee refuse altogether to change the gender marker on a birth certificate as of April 2015.[22] Texas, by opinion of the local clerk's office, will make necessary changes to a birth certificate (including amendment of sex if a court order is presented). As of July 2014 New York State passed legislation easing changing recorded gender and as of December 2014 New York City followed, completely eliminating the need for gender reassignment surgery) when filing for birth gender change in New York.[citation needed]

Cases[edit]

The first case to consider legal gender change in the U.S. was Mtr. of Anonymous v. Weiner (1966), in which a post-operative transsexual sought from New York City a change of their name and sex on their birth certificate. The New York City Health Department refused to grant the request. The person took the case to court, but the court ruled that granting of the request was not permitted by the New York City Health Code, which only permitted a change of sex on the birth certificate if an error was made recording it at birth.[23][24]

The decision of the court in Weiner was again affirmed in Mtr. of Hartin v. Dir. of Bur. of Recs. (1973) and Anonymous v. Mellon (1977). However, despite this, there can be noted as time progressed an increasing support expressed in judgements by New York courts for permitting changes in birth certificates, even though they still held to do so would require legislative action. It should be noted that classification of characteristic sex is a public health matter in New York; and New York City has its own health department which operates separately and autonomously from the New York State health department.[citation needed]

An important case in Connecticut was Darnell v. Lloyd (1975),[25] where the court found that substantial state interest must be demonstrated to justify refusing to grant a change in sex recorded on a birth certificate.[citation needed]

In K. v. Health Division (1977),[26] 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.[citation needed]

Missouri has had a statute requiring confirmation of sex reassignment surgery in order to modify a birth certificate. This was challenged in two cases in 2013. The first concerned the matter of a transgender name change with amendments. The accompanying amendments dealt with an explicit granting of the petitioner the right to change gender with the Missouri Department of Revenue and other venues pertaining to the use of state identification.[27] The second was heard before the Missouri courts, with a partial delay, on the matter of gender affirmation and recognition for Jamie Miranda Glistenburg.[27] Although the Missouri statute requiring sex reassignment surgery to change birth certificates was not completely invalidated, the court orders from these two cases effectively silenced the discriminatory law until repealed by order of a federal court or by legislative action. The ruling in the Glistenburg case reads, "...it is found that said request of relief is proper and that such change will not be detrimental to the interest of any persons, nor be against the interest of the state or of any given establishment ... Wherefore, the court understands that select circumstances, such as this case, require judicial intervention in order to prevent discrimination. Moreover, the explicit requirement of surgical procedures or medications that may be deemed unsuitable, dangerous, or unnecessary to the Petitioner by medical assertion shall be given relief notwithstanding Mo. Ann. Stat. § 193.215(9)..." Because of the judicial precedent established in this case, there are many transgender individuals and lawyers seeking similar relief in other restrictive states.[28]

Drivers' licenses[edit]

All U.S. states allow the gender marker to be changed on a driver's license,[29] although the requirements for doing so vary by state. Often, the requirements for changing one's driver's license are less stringent than those for changing the marker on the birth certificate. For example, the state of Massachusetts requires SRS for a birth certificate change,[30] but only a form including a sworn statement from a physician that the applicant is in fact the new gender to correct the sex designation on a driver's license.[31] The state of Virginia has policies similar to those of Massachusetts, requiring SRS for a birth certificate change, but not for a driver's license change.[32][33]

Sometimes, the states' requirements and laws conflict with and are dependent on each other; for example, a transgender woman who was born in Ohio but living in Kentucky will be unable to have the gender marker changed on her Kentucky driver's license. This is due to the fact that Kentucky requires an amended birth certificate reflecting the new gender, but the state of Ohio does not change gender markers on birth certificates.[34]

Passports[edit]

The State Department determines what identifying biographical information is placed on passports. On June 10, 2010, the policy on gender changes was amended to allow permanent gender marker changes to be made with the statement of a physician that "the applicant has had appropriate clinical treatment for gender transition to the new gender."[35] The previous policy required a statement from a surgeon that gender reassignment surgery was completed.[36]

Third gender option[edit]

As of 2015, neither the federal government nor any of the states recognize a third gender option for transgender persons on passports, drivers licenses and birth certificates. The option has been advocated for intersex and genderqueer (or non-binary transgender) people, but remains available only in Australia, New Zealand, India, Nepal, Pakistan, Bangladesh, Germany, and Malta.[37][38][39][40] Third genders have traditionally been acknowledged in a number of Native American cultures as "two spirit" people, in traditional Hawaiian culture as the māhū, and as the fa'afafine in American Samoa.[41][42][43][44] Similarly, immigrants from traditional cultures that acknowledge a third gender would benefit from such a reform, including the muxe gender in southern Mexico and the hijra of south Asian cultures.[45][46] [47]

Discrimination[edit]

Laws[edit]

Current U.S. LGBT employment discrimination laws.
  Sexual orientation and gender identity: all employment
  Sexual orientation with anti–employment discrimination ordinance and gender identity solely in public employment
  Sexual orientation: all employment
  Sexual orientation and gender identity: state employment
  Sexual orientation: state employment
  No state-level protection for LGBT employees
States that prohibit housing discrimination based on sexual orientation or gender identity. HUD regulations require all housing providers that receive HUD funding not to discriminate against an individual's sexual orientation or gender identity.
  Prohibits housing discrimination based on sexual orientation and gender identity
  Prohibits housing discrimination based on sexual orientation only
  Does not factor sexual orientation or gender identity/unclear

Although the Fourteenth Amendment to the United States Constitution provides equal protection under the law for all, there is no federal law designating transgender as a protected class, or specifically requiring equal treatment for transgender people. An attempt was made to add such language to ENDA, but it was unsuccessful.

There are 19 states and over 225 jurisdictions (as of 28 January 2015[48]) including the District of Columbia which feature legislation that prohibit discrimination based on gender identity in either employment, housing, and/or public accommodations. This legislation is similar to protections against sex and racial discrimination.[citation needed]

State Date begun Employment Housing Public accommodations
Minnesota 1993 Yes Yes Yes
Rhode Island 1995 (public accommodation)
July 17, 2001 (employment and housing)[49]
Yes Yes Yes
New Mexico 2003 (employment and housing)
2004 (public accommodation)
Yes Yes Yes
California[50] August 2, 2003 (employment and housing)
October 10, 2011 (public accommodations)
Yes Yes Yes
District of Columbia 2005 (employment and housing)
2006 (public accommodations)
Yes Yes Yes
Maine 2005 Yes Yes Yes
Illinois 2005 (employment and housing)
2006 (public accommodations)
Yes Yes Yes
Hawaii 2005 (housing and public accommodations)
2011 (employment)
Yes Yes Yes
Washington January 2006 Yes Yes Yes
New Jersey 2006 Yes Yes Yes
Vermont 2007 Yes Yes Yes
Oregon 2007 Yes Yes Yes
Iowa 2007 Yes Yes Yes
Colorado[51] 2007 (employment and housing)
2008 (public accommodations)
Yes Yes Yes
Nevada 2011 Yes Yes Yes
Connecticut[52] 2011 Yes Yes Yes
Massachusetts 2011 Yes Yes No
Delaware 2013 Yes Yes Yes
Maryland 2014 Yes Yes Yes
Utah 2015 Yes Yes No

On November 16, 2011, House Bill 3810 was passed in Massachusetts.[53] This bill covers discrimination based on gender identity, but not gender expression, and has no provisions for public accommodation.

On January 30, 2012, HUD Secretary Shaun Donovan announced new regulations that would require all housing providers that receive HUD funding to prevent housing discrimination based on sexual orientation or gender identity.[54] These regulations went into effect on March 5, 2012.[55]

Cases[edit]

In 2000, a court ruling in Connecticut determined that conventional sex discrimination laws protected transgender persons. However, in 2011, to clarify and codify this ruling, a separate law was passed defining legal anti-discrimination protections on the basis of gender identity.[56]

On October 16, 1976, a Supreme Court rejected plaintiff's appeal in sex discrimination case involving termination from teaching job after sex-change operation from a New Jersey school system.[57]

Carroll v. Talman Fed. Savs. & Loan Association, 604 F.2d 1028, 1032 (7th Cir.) 1979, held that dress codes are permissible. "So long as [dress codes] and some justification in commonly accepted social norms and are reasonably related to the employer’s business needs, such regulations are not necessarily violations of Title VII even though the standards prescribed differ somewhat for men and women.”[58]

In Ulane v. Eastern Airlines Inc. 742 F.2d 1081 (7th Cir. 1984) Karen Ulane, a pilot who was assigned male at birth, underwent sex reassignment surgery to attain typically female characteristics. The Seventh Circuit denied Title VII sex discrimination protection by narrowly interpreting "sex" discrimination as discrimination “against women" [and denying Ulane's womanhood].[59]

The case of Price Waterhouse v. Hopkins 490 U.S. 228 (1989), expanded the protection of Title VII by prohibiting gender discrimination, which includes sex stereotyping. In that case, a woman who was discriminated against by her employer for being too “masculine" was granted Title VII relief.[60]

Oncale v. Sundowner Offshore Services, Inc. 523 U.S. 75 (1998), found that same-sex sexual harassment is actionable under Title VII.[61]

A gender stereotype is an assumption about how a person should dress which could encompass a significant range of transgender behavior. This potentially significant change in the law was not tested until Smith v. City of Salem 378 F.3d 566, 568 (6th Cir. 2004). Smith, a male to female transsexual, had been employed as a lieutenant in the fire department without incident for seven years. After doctors diagnosed Smith with Gender Identity Disorder (“GID”), she began to experience harassment and retaliation following complaint. She filed Title VII claims of sex discrimination and retaliation, equal protection and due process claims under 42 U.S.C. § 1983, and state law claims of invasion of privacy and civil conspiracy. On appeal, the Price Waterhouse precedent was applied at p574: “[i]t follows that employers who discriminate against men because they do wear dresses and makeup, or otherwise act femininely, are also engaging in sex discrimination, because the discrimination would not occur but for the victim’s sex.”[62] Chow (2005 at p214) comments that the Sixth Circuit’s holding and reasoning represents a significant victory for transgender people. By reiterating that discrimination based on both sex and gender expression is forbidden under Title VII, the court steers transgender jurisprudence in a more expansive direction. But dress codes, which frequently have separate rules based solely on gender, continue. Carroll v. Talman Fed. Savs. & Loan Association, 604 F.2d 1028, 1032 (7th Cir.) 1979, has not been overruled.

Harrah's implemented a policy named "Personal Best", in which it dictated a general dress code for its male and female employees. Females were required to wear makeup, and there were similar rules for males. One female employee, Darlene Jesperson, objected and sued under Title VII. In Jespersen v. Harrah's Operating Co., No. 03-15045 (9th Cir. Apr 14, 2006), plaintiff conceded that dress codes could be legitimate but that certain aspects could nevertheless be demeaning; plaintiff also cited Price Waterhouse. The Ninth Circuit disagreed, upholding the practice of business-related gender-specific dress codes. When such a dress code is in force, an employee amid transition could find it impossible to obey the rules.[citation needed]

In Glenn v. Brumby, the 11th Circuit Court of Appeals held that the Equal Protection Clause prevented the state of Georgia from discriminating against an employee on the grounds of transsexual status.[63][64]

Restroom access[edit]

An area of legal concern for transgender people is access to restrooms which are segregated by gender. It is a common experience to be harassed or asked for legal identification while entering or using a gendered restroom.[65][66][67] Recent legislation has moved in contradictory directions. On one hand, non-discrimination laws have included restrooms as public accommodations, indicating a right to use gendered facilities which conform with a person's gender identity.[68] On the other, some efforts have been made to insist that individuals use restrooms that match their biological sex, regardless of an individual's gender identity or expression.[69]

In Doe v. Regional School Unit, the Maine Supreme Court held that a transgender girl had a right to use the women’s bathroom at school because her psychological well-being and educational success depended on her transition. The school, in denying her access, had "treated [her] differently from other students solely because of her status as a transgender girl." The court determined that this was a form of discrimination.[70]

Right to restrooms that match one’s gender identity have also been recognized in the workplace and are actively being asserted in public accommodations. In Iowa, for example, discrimination in public accommodations on the basis of sexual orientation and gender identity has been prohibited by law since 2007 through the Iowa Civil Rights Act.[70]

In Mathis v. Fountain-Fort Carson School District 8, Colorado's Division of Civil Rights found that denying a transgender girl access to the women’s restroom at school was discrimination. They reasoned, "By not permitting the [student] to use the restroom with which she identities, as non-transgender students are permitted to do, the [school] treated the [student] less favorably than other students seeking the same service." Furthermore, the court rejected the school’s defense—that the discriminatory policy was implemented to protect the transgender student from harassment—and observed that transgender students are in fact safest when a school does not single them out as different. Based on this finding, it is no longer acceptable to institute different kinds of bathroom rules for transgender and cisgender people.[70]

In Cruzan v. Special School District #1, decided in 2002, a Minnesota federal appeals court ruled that it isn't the job of the transgender person to accommodate the concerns of cisgendered people who express discomfort with sharing a facility with a transgender person. Employers need to offer an alternative to the complaining employee in these situations, such as an individual restroom.[70]

Numerous juristictions and states have passed or considered so-called "bathroom bills" which restrict the use of bathrooms by transgender people, forcing them to choose facilities in accordance with their biological sex. This includes Florida, Arizona, Kentucky and Texas.[71][72][73][74]

Hate crimes legislation[edit]

Federal hate crimes legislation include limited protections for gender identity. The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009 criminalized "willfully causing bodily injury (or attempting to do so with fire, firearm, or other dangerous weapon)" on the basis of an "actual or perceived" identity. However, protections for hate crimes motivated on the basis of a victim's gender identity or sexual orientation is limited to "crime affect[ing] interstate or foreign commerce or occurr[ing] within federal special maritime and territorial jurisdiction." This limitation only applies to gender identity and sexual orientation, and not to race, color, religion or national origin.[75] Therefore, hate crimes which occur outside these juristictions are not protected by federal law.

Fifteen states have hate crimes legislation which include gender identity or expression as a protected group. They are Vermont, Massachussetts, Connecticut, New Jersey, Delaware, Maryland, Missouri, Minnesota, Colorado, New Mexico, Nevada, Washington, Oregon, California, and Hawaii. The District of Columbia also has a trans-inclusive hate crimes law. Thirty-nine states have hate-crimes legislation which exclude transgender people. Six states have no hate-crimes legislation at all.[76]

Numerous municipalities have passed hate-crime legislation, some of which include transgender people. However, Arkansas recently passed laws which ban municipalities from enacting such protections for sexual orientation, gender identity or expression.[77]

Healthcare[edit]

Transgender people confront two major legal issues within the healthcare system: access to health care for gender transitioning and discrimination by health care workers.

Even though there is medical consensus that hormone therapy and sex reassignment surgery (SRS) are medically necessary for many transgender people, the kinds of health care associated with gender transition are sometimes misunderstood as cosmetic, experimental or simply unnecessary. This has led to public and private insurance companies denying coverage for such treatment.[78] Courts have repeatedly ruled that these treatments may be medically necessary and have recognized gender dysphoria as a legitimate medical condition constituting a “serious medical need”[79]

The idea that transition-related care is cosmetic or experimental has been ruled as discriminatory and out of touch with current medical thinking. The AMA and WPATH have specifically rejected these arguments, and courts have affirmed their conclusion.[80][81] In a case brought by Gay and Lesbian Advocates and Defenders (GLAD), O'Donnabhain v. Commissioner, for instance, the Internal Revenue Service lost its claim that such treatments were cosmetic and experimental when a transgender woman deducted her SRS procedures as a medical expense. Courts have also found that psychotherapy alone is insufficient treatment for gender dysphoria, and that for some people, SRS may be the only effective treatment.[79]

Transgender people also sometimes experience discrimination by healthcare professionals, who have refused to treat them for conditions both related and unrelated to their gender identity.[82][83][84]

The Affordable Care Act of 2010 prohibits sex discrimination in federally funded health care facilities, and in 2012 the federal Department of Health and Human Services clarified that this includes discrimination based on transgender status. The Act also forbids insurance providers from refusing to cover a person based on a pre-existing condition, including being transgender. Further protections are provided in jurisdictions that have laws prohibiting discrimination on the basis of sex, gender identity or gender expression in public accommodations - and under medical malpractice and misconduct law.[85]

Prisoners' rights[edit]

In September 2011, a California state court denied the request of a California inmate, Lyralisa Stevens, for sex reassignment surgery at the state's expense.[86]

On January 17, 2014, in Kosilek v. Spencer a three-judge panel of the First Circuit Court of Appeals ordered the Massachusetts Department of Corrections to provide Michelle Kosilek, a Massachusetts inmate, with sex reassignment surgery. It said denying the surgery violated Kosilek's Eighth Amendment rights included "receiving medically necessary treatment ... even if that treatment strikes some as odd or unorthodox".[87]

On April 3, 2015, the U.S. Department of Justice intervened in a federal lawsuit filed in Georgia to argue that denying hormone treatment for transgender inmates violates their rights. It contended that the state's policy that only allows for continuing treatments begun before incarceration was insufficient and that inmate treatment needs to be based on ongoing assessments.[88] The case was brought by Ashley Diamond, an inmate who had used hormone treatment for seventeen years before entering the Georgia prison system.[89]

Immigration[edit]

In 2000, the US Ninth Circuit Court of Appeals concluded that "gay men with female sexual identities [sic] in Mexico constitute a 'particular social group'" that was persecuted and was entitled to asylum in the US (Hernandez-Montiel v. INS).[90][91] Since then, several cases have reinforced and clarified the decision.[92] Morales v. Gonzales (2007) is the only published decision in asylum law that uses "male-to-female transsexual" instead of "gay man with female sexual identity".[92] An immigration judge stated that, under Hernandez-Montiel, Morales would have been eligible for asylum (if not for her criminal conviction).[93]

Critics have argued that allowing transgender people to apply for asylum "would invite a flood of people who could claim a 'well-founded fear' of persecution".[91] Precise numbers are unknown, but Immigration Equality, a nonprofit for LGBT immigrants, estimates hundreds of cases.[91]

The United States has no process for accepting visa requests for third gender citizens from other countries. In 2015, trans HIV activist Amruta Alpesh Soni's request for a visa was delayed because her gender is listed as “T” (for transgender) on her Indian passport. In order to receive a visa, the State Department requires the gender identification on the visa to match the gender identification on the passport — which cannot happen for approximately 1.5 billion people who don’t fit neatly into one of two boxes.[94]

Military[edit]

In 2015, the Pentagon reviewed its policy regarding transgender service members and announced that its ban will be removed, effective May 27, 2016.[95]

Prior to this change, discharges for gender transitioning were commonplace. In one such case, a postoperative transsexual was discharged from the Air Force Reserve, a decision supported by the Court of Appeals.[96]

Taxes[edit]

IRS Publication 502[97] lists medical expenses that are tax-deductible to the extent they 1) exceed 7.5% of the individual's adjusted gross income, and 2) were not paid for by any insurance or other third party. For example, a person with $20,000 gross adjusted income can deduct all medical expenses after the first $1,500 spent. If that person incurred $16,000 in medical expenses during the tax year, then $14,500 is deductible. At higher incomes where the 7.5% floor becomes substantial, the deductible amount is often less than the standard deduction, in which case it is not cost-effective to claim.

Included in IRS Publication 502 are several deductions that may apply to gender transition treatments:

  • Hospital services if staying for medical treatment;
  • Laboratory fees;
  • Legal fees;
  • Lodging during treatments;
  • Meals taken during treatments;
  • Medicines, which could include HRT;
  • Operations if they are "legal operations that are not for unnecessary cosmetic surgery";
  • Psychoanalysis;
  • Psychologist;
  • Sterilization, which could include orchiectomy;
  • Therapy;
  • Transportation; and
  • X-ray.

The deduction for operations was denied to a transsexual woman but was restored in tax court.[98] The deductibility of the other items in Publication 502 was never in dispute.

See also[edit]

References[edit]

  1. ^ a b J. Courtney Sullivan (July 16, 2015). "What Marriage Equality Means for Transgender Rights". The New York Times. Retrieved August 28, 2015. 
  2. ^ Staff report (April 4, 1959). Bars Marriage Permit; Clerk Rejects Proof of Sex of Christine Jorgensen (subscription required). The New York Times
  3. ^ "Christine Denied Marriage License". Toledo Blade. April 4, 1959. Retrieved November 18, 2012. 
  4. ^ "Case # 04-99-00010-CV". Texas Fourth Court of Appeals. 2000. Retrieved May 7, 2009. 
  5. ^ "85030 – In re Estate of Gardiner". Court of Appeals of the State of Kansas. 2000. Retrieved May 7, 2009. 
  6. ^ Canedy, Dana (February 18, 2002). Sex Change Complicates Battle Over Child Custody. The New York Times
  7. ^ Kantaras v. Kantaras, 884 So. 2d 155 (Fla. Ct. App. 2004)
  8. ^ Michael J Kantaras v Linda Kantaras [2003] Case No. 98-5375CA. 511998DR005375xxxWS, 6th Circuit
  9. ^ Kantaras v. Kantaras, 898 So. 2d 80 (Fla. 2005)
  10. ^ a b "In re Jose Mauricio LOVO-Lara, Beneficiary of a visa petition filed by Gia Teresa LOVO-Ciccone, Petitioner" (PDF). Usdoj.gov. Retrieved August 28, 2015. 
  11. ^ a b "FAQ About Transgender Parenting". Lambda Legal. 
  12. ^ "CISEK v. CISEK". leagle.com. 
  13. ^ http://www.salon.com/2011/11/02/sweden_transgender_sterilization/
  14. ^ http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1370&context=wmjowl
  15. ^ http://ncbio.org/nordisk/arkiv/sex-id-Sunde-pres.pdf
  16. ^ "Introduction and Anand's Story". Lambda Legal. 
  17. ^ "Identity Documents & Privacy". National Center for Transgender Equality. 
  18. ^ "California Governor Signs Bill to Remove Barriers for Transgender People to Change Name and Identity Documents". transgenderlawcenter.org. 
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