Dr. Jillian T. Weiss

The Top Fifty 2011 Developments In Trans Law

Filed By Dr. Jillian T. Weiss | September 09, 2011 2:00 PM | comments

Filed in: Marriage Equality, The Movement, Transgender & Intersex
Tags: National LGBT Bar Association, TLI, trans law, transgender law

2011 TLI pic.jpgYesterday was our second annual Transgender Law Institute at the National LGBT Bar Association conference, with 60 registrants. I was a little nervous yesterday morning, as my morning intro wasn't quite prepared. Last minute Sally, that's me. But it all went fine, I think, and although my feet were killing me by the end of the day and I was jet-lagged to the max, was happy as a clam to share a wonderful dinner with the guys at the end of the day.

They're the most amazing bunch, by the way, and so handsome, might I add? I just had to attach a picture. They're all superstars. Left to right, Seth Marnin, at the amazing NYC law firm of Outten and Golden; Shannon Minter, legal director of NCLR, who has represented, among others, Michael Kantaras in his battle to retain custody of his children, successful at trial, but then sandbagged by a conservative Florida Supreme Court; in the back, with the big smile, Dru Levasseur, who's at Lambda Legal and won an award from the bar association this year as one of the Best Lawyers under 40; Dr. Jamison Green, who hardly needs an introduction, being one of our most highly-regarded advocates, but also, it should be noted, to be congratulated as a newly minted Ph.D in Law, now at SFSU's highly-regarded National Sexuality Resource Center; on the right, with the black and white striped shirt, Michael Kantaras, who was recognized with a Pioneering Parent award from the bar association for his courage and dedication to his children in the face of an unjust legal system.

In preparation for yesterday's Institute, I had downloaded all of the year's legal decisions from Lexis, and had reviewed them, but the last thing I wanted to do was to deliver a boring recitation of case law. In addition, there were a number of legal developments that hadn't shown up in the case law, and I wanted to include those too. Although most of the attendees had a pretty good grasp already of many of the developments, and a number of attendees are super-experts in areas of trans law before whom I must bow my head, I suspected that there was too much going on in this area of law for everyone to know everything that happened in the last year.

That, in and of itself, is a milestone, because it shows that trans issues are no longer being completely ignored in the law. I remember when I wrote my first law review article on trans law, back in 2000, that there were few cases, and they all seemed to be named "In re Anonymous." It wasn't hard to keep all of the past case law from the 20th century's in one's head, or on an index card. But now, there were at least fifty developments in the last year.

So rather than a detailed recitation, I decided on listing the highlights. However, mindful of the audience, many of whom were the ones who tried the cases and wrote the statutes and regulations, I made it clear that the presentation was an audience participation discussion, noting that I would probably get a lot of the details wrong. And I sure did, and I missed a bunch of major stuff too. Thank goodness I was talking to people who weren't shy about jumping in, and I was happy to supplement my list.

Here's my list of the 2011 highlights in U.S. trans law, not in order of importance. I have more to say about our day yesterday, but saving that for another post. Do you have anything to add about the year in trans law?

The Good

Sexual orientation is declared to be a suspect class in law, entitled to heightened scrutiny by judges regarding constitutionality (and, by extension, gender identity)

Housing regulations by HUD, prohibiting gender identity discrimination in HUD-financed housing

Passport regulations permitting change of sex with a doctor's letter, but not requiring surgery, and also permitting change of sex on COBRAs (Consular Reports of Birth Abroad, which is a birth certificate for US citizens born outside the states)

A Veteran's Administration directive requiring respectful treatment of transgender veterans in health care settings

A survey by HHS health survey that will include questions about transgender and transsexual people

Vermont's law permitting change of sex on birth certificates without surgery, and partial settlement of a court case brought by the ACLU in Illinois with the same result (though the case is not yet over).

The American Association of Motor Vehicle Administrators recommended that all states allow change of sex on drivers licenses

Non-discrimination state laws in CA, CT, NV and HI

The 7th Circuit Fields decision finding unconstitutional the Wisconsin law prohibiting GID treatment for transgender and transsexual inmates

The Massachusetts Battista decision finding the state prison's failure to treat an inmate's GID to violate the Eighth Amendment

The Maine Denny's decision, permitting use of the appropriate restroom by a trans patron under the state's public accommodations non-discrimination law.

The rejection by the Maine legislature of a bill that would have prohibited trans people from making a complaint to the courts about inappropriate bathroom requirements.

Marriage equality in New York

The Pratt decision from the NY federal courts holding sex stereotyping claims legally cognizable under Title IX (the federal education non-discrimination law).

The settlement in the Philadelphia Youth Study Center case, where a young trans person had been unmercifully bullied for over a year

The Amber Yust settlement, where a trans woman who applied for a new drivers license received a horrific letter from the ultra-religious DMV clerk, who suggested she was going to hell

The Ashely Yang settlement, where a trans employee of TSA was subjected to sexual harassment and discrimination, resulting in sensitivity for all TSA employees at that California facility

The Wilson v. Phoenix House settlement, which permitted a lawsuit to go forward where a trans person in a court diversion program was excluded from participation in a supposedly "gay-friendly" women's rehab program and re-incarcerated by vindictive Phoenix House employees

The investiture of two trans judges, Hon. Phyllis Frye of Houston, Texas, and Hon. Victoria Kolakowski of Alameda County, California.

The settlement of the Lana Lawless case, where a trans woman had been denied participation in the LPGA

The Adams lawsuit against the Federal Bureau of Prisons for failing to permit treatment of GID survived a motion to dismiss, and the case is pending.

The settlement with the Tehachapi Unified School District in California, requiring them to respond to bullying, after the death of a student, Seth Walsh.

The federal Office of Personnel Management regulations prohibiting discrimination based on gender identity. Several other agencies are moving to adopt similar regulations.

Student anti-bullying laws in Arkansas, Connecticut, Colorado and Rhode Island

There were some victories that occurred in custody cases involving trans parents that must remain anonymous because the prevailing social and legal climate is such that public disclosure of the victory could result in legal harm.

The Bad

The high number of murders perpetrated against transgender, transsexual and gender-non-conforming individuals, and the problems with getting police to acknowledge hate-crimes status

The high unemployment and underemployment rate among trans people, due in large part to employment discrimination

The mistrial in the Lawrence King murder case, in which some members of the jury decided that the obviously premeditated murder of a gender-non-conforming 14 year old was less culpable because of his sexual orientation and gender expression.

Several shootings and murders of trans people in the nation's capital, including a shooting by a police office.

The failure to advance the federal Employment Non-Discrimination Act because of dithering by Congress and the Administration

The languishing of state non-discrimination bills in New York State and Massachusetts

The ending of the anti-gay military Don't Ask Don't Tell policy, but nothing done for transgender military service personnel

Anti-trans Social Security Administration policies, not permitting change of sex on Social Security Accounts without proof of surgery, the continued issuance of "no-match" letters outing trans employees, and questioning of all marriages involving trans people

Use of airport body scans in such as way as to out transgender people and potentially subject them to harassment

The Fischer v. Experian case, in which a federal court decided that credit reporting agencies can out trans people by revealing former names and sex markers.

A decision in Maine saying that school administrators cannot be required to allow trans youth to use the appropriate bathroom (although someone mentioned there was a positive outcome of this as well, but for the life of me I can't remember what it is)

The Louis v. Bledsoe decision, in which a federal court decided that placement of trans inmates who express fear of rape in the "Special Management Unit," where the most dangerous inmates reside, is an appropriate placement

The placement of a Philadelphia trans inmate, Jovanie Saldana, into a men's prison after she complained about sexual assault by a corrections officer

The decision by a Texas court that the marriage of Nikki Araguz was void

The Tennessee law prohibiting local non-discrimination ordinances

In Michaels v. Akal Security, the federal District Court in Colorado decided that the refusal to permit appropriate bathroom usage by a trans employee was not discriminatory conduct under Title VII.

The Pending

NJ Devereaux discrimination lawsuit by a trans man hired to act as a urine monitor.

New York, and Illinois lawsuits regarding change of sex on birth certificates, and one in Alaska re change of sex on drivers licenses


The Tikkun suit in NYC challenging NYPD search techniques used for purposes of assigning gender

The New Orleans Doe v Jindal suit challenging the use against trans people of the "crime against nature" statute as a means of enhancing prostitution charges from a misdemeanor to a felony with jail time and sex offender registration.

Oregon lawsuit on behalf of a trans public employee denied trans health benefits

The Adams lawsuit against the Federal Bureau of Prisons for failing to permit treatment of GID


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Angela Brightfeather | September 9, 2011 3:48 PM

Thanks Jillian. That is a great update, good or bad, it's all nice to know these things on the front lines.

Awesome report Dr. Jillian T. Weiss! You forgot about New Jersey? in the Student anti-bullying laws in Arkansas, Connecticut, Colorado and Rhode Island! Were you not instrumental in getting that passed along with Babs?

Britney Austin | September 9, 2011 9:36 PM

Thanks for the information, Dr. Weiss. Overall this sounds like good news. While there do seem to be some steps back, overall a lot of legal noise is being made with regards to these matters. This is a lot of action in just nine months of this year alone.

Am I reading this right? A crime against nature statute? Someone please enlighten me on this! It sounds like they are saying that being trans is a crime in New Orleans! WOW!

Ok, Just googled it...That is really a totally absurd law, a leftover from the 1800's at that! http://louisianajusticeinstitute.blogspot.com/2010/07/reform-of-louisiana-crime-against.html

While we're on the subject of the law and advancements over the past year and how some of us are supposed to mourn the fact that another year has gone by without ENDA being passed, why don't we have a look at what the legal sitiuation for post-transsexual people has been for decades and how ENDA would complicate that legal situation? Below, I provided a rough approximation of a table regarding marriage laws for post transsexual people that Jami Kathleen Taylor provided for a dissertation submitted to the Graduate Faculty of North Carolina State University. I should note that I had linked to Taylor's dissertation months ago in a comment I made to a post by Austen Crowder here at Bilerico:

http://www.bilerico.com/2011/03/clarification_in_new_york_marriage_rules_for_trans.php

The link that I posted will not take you to the paper because it exists behind a pay wall. It's amazing how difficult it is to find this information and how it is almost always glossed over in discussions about ENDA to the point where one has to wonder if it's being purposely suppressed.

Trying to get clarification on one's legal status when one is post transsexual is almost impossible with all the emphasis on gender expression and gender identity protections. If one looks at the Certain Shared Facilities wording, Section 8(a)(3), in the proposed ENDA, that has not passed, and really thinks about where it would leave post transsexual people in light of existing laws in the listing of states below, one understands that in at least twenty four states, where there is no question about who a post transsexual person is allowed to marry and isn't allowed to marry, it would very certainly cause conflicts.

Essentially, in states that are a long way away from establishing marriage equality, ENDA, by implication, because it makes a distinction between people assigned a sex at birth and those legally reassigned a sex, would cause a long term conflict between federal law and state law, probably resulting in repeal of existing laws that allow a post transsexual person to marry someone who was assigned a sex opposite to the one reassigned. Of course, the ENDA Certain Shared Facilities paragraph would have an impact on a person's ability to truly be able to reject a birth assignment and have their sex reassigned that have implications way beyond the question of who someone is able to marry. This is not progress for post transsexual people. This is unconscionable. It is unconscionable that this is not even openly discussed and acknowledged by people with years of legal training and experience in the law. Here is the table Jami Kathleen Taylor provides in her paper that the transgender "legal eagles" never seem to refer to in any of their handbooks.

(here I should note that "sex assigned at birth" is more accurate a description than "birth sex" for people who were born transsexual)

Table 1.2: Marriage Entered Into by Post-operative Transsexuals
State
Trans
marriage

AL 1 HA1 MA4 NM 1 SD 3
AK 3 ID 2 MI 1 NY 3 TN 2
AZ 1 IL 1 MN 3 NC 1 TX 2
AR 1 IN 3 MS 3 ND 3 UT 1
CA 1 IA 3 MO 1 OH 2 VT 1
CO 1 KS 2 MT 3 OK 3 VA 1
CT 1 KY 1 NE 1 OR 1 WA 3
DE 3 LA 1 NV 3 PA 3 WV 3
FL 2 ME 3 NH 3 RI 3 WI 1
GA 1 MD 1 NJ 1 SC 3 WY 3
Key:
1: Post-operative transsexuals can only marry someone of their birth sex
2: Post-operative transsexuals can only marry someone of the opposite birth sex
3: Open legal question
4: Any person can marry an individual of either sex

*from

Jami Kathleen Taylor
A dissertation submitted to the Graduate Faculty of
North Carolina State University

This chart contains many errors. It is meaningless.

That is not my table. It is a few years old. Yes, there have been changes in several of the states listed. If the question is one that is confined strictly to marriage then Connecticut, Iowa, New Hampshire, New York, Vermont would have to be added to the category Massachusetts was put in with the hope California would be included. I don't see the District of Columbia on that list. Many more states allow civil unions but in those states sex distinctions are still made in who is allowed to marry. I know you are probably very busy but beyond the outdated information regarding marriage rights in Connecticut, Iowa, New Hampshire, New York, Vermont how is the information useless, otherwise? What about states like California, Connecticut and Vermont where a post transsexual person would be considered to be in a same sex marriage with a person who had not had sex reassignment who shared the same assignment at birth previous to the passage of marriage equality legislation or a court decision that decided in favor of marriage equality? If the purpose were considered to be the sex reassigned for marriage purposes previous to the passage of marriage equality legislation in a state, doesn't that set some kind of precedent for recognition that the person's sex has been reassigned?

My questions are not about marriage rights, so much. However, there will probably be many states where marriage equality will not be reality for quite some time. I think in states where that is likely and in states that still do not have marriage equality the chart must be relevant. The Certain Shared Facilities wording, Section 8(a)(3), in the proposed ENDA, goes out of its way to make a distinction between those who have gone through transition, which would obviously include those who have been legally reassigned a sex and implicitly define a person's sex as that one which a person is assigned at birth. If it doesn't do that, ENDA, which has "non-discrimination" in it's title, would, at least, discriminate between those who have had their sex re-assigned, legally and otherwise, and those who remain their assigned at sex birth, which in many states would be in conflict with the way they either are discriminated against in marriage law or were discriminated against.

I can't see where I am incorrect in my reasoning above. Not once has anyone pointed out where I am wrong about ENDA. Admittedly, the information Taylor provides in the table above is dated but I think the way people who have had their sex reassigned, even in states that now have equal marriage rights, are and were discriminated from others is relevant until someone can show me how I am wrong. I am aware of Littleton, Kantaras, and Gardner. I am aware of judges who pull out dictionaries and set precedents defining sex based on old dictionary definitions. I am aware of court decisions that cherry pick court decisions from other countries regarding definitions of sex. In the vast majority of states the matter of sex is not settled law, however. In Littleton, the decision is based on one where the expert testimony in Corbett is old and outdated, very open to question and conflicts with Lord Hunter's ruling in the 1967 case of Ewan Forbes -Sempill. What about the re: Kevin case? The Kansas decision is the equivalent of determining that ketchup is a vegetable.

No one has explained to me the benefit to people who have had their sex legally reassigned of advocating for a federal law that in the very least discriminates between them and those of the sex they have been legally assigned and at the worst, essentially invalidates the person's legal sex reassignment. Why has so much effort gone into advocating that Section 8(3)(a) Certain Shared Facilities be written into federal law?

Sorry to be such a nag but I don't see what it is I am missing. I really wish someone could point it out to me. Anyway, have a nice weekend, Dr. Weiss.

Just to complicate matters...

I have a UK passport saying F.
I have an Australian passport saying F.
I have medical documentation that biologically, I'm female (or at least, more female than male).
I have no documentation of any "sex reassignment surgery".
I do have female genitalia.
I have a UK birth certificate saying "boy", and notwithstanding any of the above, this cannot be changed (as it could for transsexuals, both pre- and post-op)
My Australian Immigration papers state that I'm female.

Should I decide to get married in the USA, which sex would I be allowed to marry? That would depend on the state, but Federally what would be the DOMA implications? Note that every time my family travels to the USA we face a similar question - are we in a same-sex marriage (not recognised because of DOMA) or not?

There are some Intersex people in Australia whose birth certificates (and passports) state that they are neither male nor female. Can I assume that in those states that only allow marriage between men and women, that they aren't allowed to marry anyone at all? That's the situation in Australia, by the way.

I have one more thing to say. If a picture speaks a thousand words what does the picture above say? One wonders how Sy Sperling was left out . . .

I'm going to nominate Joanna Clark's work in California during the 1970s towards getting states to change birth certificates. This was huge. I quote:

"AB-385 (W. Brown-1977), was Joanna’s first involvement in the political arena, her first “Impossible dream” to become reality. AB-385, designed to permit the Department of Health to issue new birth certificates to post-operative transsexuals, became law on January 1, 1978. Shortly thereafter, State Senator Paul Carpenter introduced emergency legislation (SB-2200) to prohibit Medi-Cal from funding sex reassignment surgery and related services. Twenty-two legislators endorsed the bill as co-sponsors but Joanna successfully argued the unconstitutionality of the bill before the legislature and sent the bill down in flames."

Whoops, I glossed over the 2011 part. Never mind.

Hi Gina,

Whoops, I glossed over the 2011 part. Never mind.

I don't know whether the work Sister Mary Elizabeth did relates to this post or not but ENDA does.

Your reference to Sister Mary Elizabeth is interesting. I wish you would have provided a link. I have been vaguely aware of Sister Mary Elizabeth for some time but not familiar with her Legal Aspects of Transsexualism. I have it bookmarked now, though. I wasn't able to find the direct link to your quote on AB-385 or SB2200. I was only able to find a brief account of what she did in relation to that legislation by copying and pasting the quote you provided.

Here is something I found on line a few days ago:

http://www.cardozolawandgender.com/uploads/2/7/7/6/2776881/14-3_markowitz.pdf

Most of this is pretty interesting especially the parts about sex reassignment and marriage law in Louisana, how Indiana doesn't put a sex marker on its birth certificate, how Alabama will only change the original, the differences between states that authorize sex changes through legislation and those that do it by court order, the implications etc., etc., etc.

Markowitz states in her paper:

The terms “sex” and “gender” can be synonomous and interchangeable, but this is not always accurate. In this note, I use “sex” as biological, identifiable through genitalia.26z

In relation to Corbett v Corbett she mentions this which is found elsewhere, including Cyrus Mehta's analysis on transsexualism and imigration law and marriage:

Scholars use up to eight factors that may be relevant in determining gender: internal morphologic sex—i.e., prostate or uterus; external morphologic sex— genitalia; gonadal sex—testes or ovaries; chromosomal sex—presence or absence of Y chromosome; hormonal sex—predominance of androgens or estrogens; phenotypic sex —secondary sex characteristics, i.e., facial hair, breasts, assigned sex and gender of rearing; and personal sexual identity—gender identity.52 This approach is more sophisticated than the British court’s ruling in Corbett v. Corbett, holding that “the biological sexual constitution of an individual is fixed at birth—

The biggest problem with this analysis is that the 23rd pair of chromosomes only indicate a statistical probability that that phenotypical outcome will be one way or another. Most sex determining genes are not on the 23rd pair. The fact is, however, that sex is determined by the preponderance of multiple characteristics whether the courts are ignorant to this fact or not, or refuse to accept it or will accept the facts. In the long run it is definitely the best argument to use to arrive at the truth regardless of what the court opinions are at the current time. It is best to argue that the earth revolves around the sun rather than the opposite because that is what it actually does, regardless of how authorities would have handed down rulings in the seventeenth century on geocentrism and heliocentrism.

So the question is, just because this is 2011 and ENDA still has not passed why should any post transsexual person mourn the fact that a law wasn't enacted which would effectively ignore the preponderance of a persons sex characteristics and allow segregation of them from those of the same category their predominating sex characteristics put them in.

I tried to get a bit of background information on Stephanie Markowitz. My time is limited. I did find a reference to her in Dr. Weiss' article on gender autonomy and privacy. I really wish the various legal organizations that operate under the heading of transgender would work on clarifying all the various developments over the decades regarding legal sex reassignment and present the information on a state by state basis so people could understand the implications of each state's law. We're going on 2012. If that has been done already I haven't heard anyone make any mention of it here or elsewhere when people write about "trans law". From what I can tell some states will issue completely new birth certificates. I think that should be the standard worked towards. I do not think the gender recognition model from the U K is a good on to follow. If sex were assigned and it was over and done with, recognized at face value it would certainly save a lot of time sorting through a bunch of gender mumbo jumbo. If you want to make the argument sex is as complicated as it is, don't let anyone off the hook by creating a separate class of "transpeople". See how far you get calling the rest of humanity "separatist".

I forgot one: In Michaels v. Akal Security, the federal District Court in Colorado decided that the refusal to permit appropriate bathroom usage by a trans employee was not discriminatory conduct under Title VII.