Transgender Awareness Week is a time to educate ourselves and our community about the issues faced by transgender individuals. It is a week to remember those who have faced violence and death due to prejudice and to celebrate the lives and contributions of transgender people in every community. This is the second in a five-part educational series for Transgender Awareness Week.
Transgender Awareness Week Part 2
Legal Barriers
Transgender people face unique challenges in the eyes of the law. Currently there are no federal protections for gender identity in employment, housing, or hate crime legislation. In the wider LGBT movement, the invisibility of the “T” often comes up in debates and discussion around legislation that protects LGB individuals but not members of the transgender community. Controversy around the Employment Non-Discrimination Act or the repeal of ‘Don’t Ask, Don’t Tell’ without the inclusion of transpeople are examples.
There is specific protection against transgender discrimination in a few states and also smaller cities (including Ann Arbor). For a map of which states protect transgender people under the law, go or for specific jurisdictions click HERE. (In case you’re wondering, Michigan is not one of them) In 2009 in Michigan, House Bill 4192 was introduced to amend 1976 PA 453, “Elliot-Larsen civil rights act”. House Bill 4192 would include sexual orientation and gender identity or expression as protected status in prohibiting discrimination. The bill did not pass during the 2009-2010 legislative cycle and so must be re-introduced in a future congressional session.
Identity Documents
Many transgender people decide to change their names in order to reflect their current gender. While all states have legal procedures for name changes, several states do not offer legal recognition of changes of gender. Some states require a person to have undergone sex reassignment surgery in order to obtain a legal gender change. It is extremely challenging to undergo sex reassignment surgery; it is highly expensive, it takes years to obtain medical and psychological permission, and some people are not healthy enough to go through the procedures involved. (Furthermore, transitioning is a slow process with many procedures, including hormone therapy and numerous surgeries. Some choose to undergo some of these procedures while others may opt to undergo none.) These barriers make it extremely difficult for trans people to obtain new proper documents such as driver's licenses, social security numbers, birth certificates, immigration documents, passports, credit cards, etc. Without the consistent identification most people take for granted, it can be impossible to travel, open a bank account or apply for a job. Furthermore, life can be made more challenging when names, faces, and genders are inconsistent across identity documents, as is commonly the case when one is transitioning.
Consider the following situation: Tim, a transman living in California, wants to go through the process of updating official documents. He has not undergone sex reasssignment surgery for financial and personal reasons. Since in California, the name and gender on a driver's license may be changed without a court order, Tim's driver's license will reflect his current name and gender. However, since U.S. passports only recognize gender changes if the person has medical signoff of a completed transition, Tim will have a different gender listed on his passport than on his CA license, which can be difficult to explain and even unsafe in some countries. For this reason, many transgender people do not have passports - it is a common narrative for trans people to feel that they are trapped inside the country.
Marriage and Domestic Partnership laws
Because of the federal Defense of Marriage Act (DOMA) and the fact that the vast majority of US states do not allow same-sex marriage, gender absolutely matters. Right now six states and the District of Columbia recognize same-sex unions. The current administration supports the Respect for Marriage Act, currently under review by the Subcommittee on the Constitution. This act amends the Defense of Marriage Act. The amendment looks to remove the definition of spouse (currently a person of the opposite sex who is a husband or wife). It also provides that in purposes of any “federal law in which marital status is a factor, an individual shall be considered married if that individual’s marriage is valid in the state where the marriage was entered into” (H.R. 1116 Respect for Marriage Act). Current marriage laws make it confusing for trans people to know who they can legally marry: should they enter a domestic partnership (in places where legal)? Should they marry according to their birth gender or current gender (which has confusing legal ramifications based on the status of that person's identity documents)? If they have not fully legally transitioned, what implications does that have? Who can they marry if their driver's license is accurate to their current gender but their birth certificate is not? Will their marriage be invalidated if they transition after marrying? These are all questions that trans people are forced to think about.
Employment Non-Discrimination
Twenty-one states and the District of Columbia currently ban employment discrimination on the basis of sexual orientation. Only fifteen states ban employment discrimination on the basis of gender identity. As of now, it is legal to fire (or refuse to hire) a transgender person in 35 states just because they are trans or gender non-conforming. Because it is so difficult for trans people to have perfectly accurate and congruous legal documents, and because many jobs require background checks, gender will often come up when hiring. Employers are increasingly required to match employees’ personal data with social security accounts to verify work status. This can be a barrier to many transgender individuals whose various forms of identification do not match. This makes it challenging for trans people to acquire and retain jobs (especially where discrimination is legal), which makes it difficult for them to attain funds for surgery, thus making it even more impossible to obtain the correct legal documents.
Hate Crimes Legislation
On October 28, 2009, President Obama signed the FY2010 Defense Authorization Bill, which includes the Matthew Shepard/James Byrd, Jr. Hate Crimes Prevention Act. This is the first federal law to recognize the existence of, and provide civil rights protections for, transgender people. It provides for the tracking of hate crimes based on sexual orientation and gender identity. This is a great step forward, but there is still need for state-based legislation. Currently, twenty-nine states and the District of Columbia include sexual orientation under their hate crime legislation, but only thirteen of these states and DC protect gender identity or expression under hate crime laws. This means that attacking someone for being gay, lesbian, or bisexual is considered a hate crime (in the twenty-nine states and DC), but attacking someone for being trans is simply considered an assault, which has a much lower punishment. Click HERE for more information on transgender hate crimes. In the state of Michigan the following cities have transgender-inclusive anti-discrimination laws dealing with public accommodation, housing, employment and edcuational opportunities: Ann Arbor, Detroit, East Lansing, Ferndale, Grand Rapids, Hamtramck, Huntington Woods, Kalamazoo, Lansing, Saugatuck city, Saugatuck Township, and Ypsilanti.
Profile of a Judicial Pioneer: Victoria Kolakowski
Victoria Kolakowski, a lawyer and administrative law judge with over 20 years of legal experience ran for Superior Court Judge in Alameda County, California and is now the nation’s first openly transgender trial judge. After initially being barred from the Louisiana State Bar Examination, in which the association cited gender transformation as the reason for prohibition, the Louisiana Supreme Court sided with Kolakowski and she continued on through her illustrious career. She underwent sex reassignment surgery in 1991, during her final year at Louisiana Sate University. In 1994, she was named “Woman of the Year” by the East Bay Lesbian/Gay Democratic Club, and in 1995, she was named Outstanding Woman of Berkeley by the Berkeley Commission on the Status of Women. In 2008, Kolakowski happily married her partner, Cynthia Laird, shortly before Proposition 8 halted same-sex marriages in California. She is also an ordained minister in the Universal Fellowship of Metropolitan Community Churches.
Compiled with information from the Transgender Law and Policy Institute, the National Gay and Lesbian Task Force, and the Emma Goldman Society for Queer Liberation at Stanford University.
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LGBTQ students and allies at the University of Michigan School of Public Health