Dr. Jillian T. Weiss

Third Annual Trans Law Institute, and the Fifty Top Trans Law Developments

Filed By Dr. Jillian T. Weiss | August 29, 2012 3:30 PM | comments

Filed in: Marriage Equality, The Movement, Transgender & Intersex
Tags: bullying, Diana K. Flynn, National LGBT Bar Association, Trans Marriage, Trans Parenting, trans youth, Transgender Law Institute

judge-gavel.jpgThe National LGBT Bar Association again hosted the Transgender Law Institute on Thursday, August 23, 2012, our third annual. We had about 70 people in attendance. It was wonderful to see old friends again, and make new ones. It felt like community.

We started the day with my annual "Fifty Top Developments in Trans Law" talk. It is amazing how many things happen in a year. The list is after the jump.

Our keynote speaker was Diana K. Flynn, Chief of the Appellate Section of the Civil Rights Division of the United States Department of Justice since October 1986. In this capacity, she is responsible for the direction and management of the Division's litigation program in the United States Courts of Appeals and, under supervision of the Solicitor General, in the Supreme Court. Prior to her appointment as Appellate Chief, Ms. Flynn served in the Division as counsel to the Assistant Attorney General and as an appellate attorney. Before that, she spent several years engaged in the private practice of law. She is a 1979 graduate of Yale Law School and a 1976 summa cum laude graduate of the University of Rochester.She is incredibly insightful about civil rights litigation, and told her personal story about transitioning on the job there several years ago during the previous administration. She is a community treasure.

We also had a panel "Beyond Bullying: Trans Youth and Education?, with panelists Joseph Wardenski (U.S. DOJ, Civil Rights Division) Sharon McGowan (U.S. DOJ, Civil Rights Division, Appellate Section), Elizabeth Gill (ACLU of Northern California) and Asaf Orr (California attorney who represents parents and kids in educational matters). There was a great discussion about how to use legal means to educate school officials to accommodate and include trans kids safely.

Our afternoon panel was held jointly with the Family Law Institute, on the subject of Trans Marriage and Parenting. Our panelists were Jennifer Levi (GLAD), Shannon Minter (NCLR), and Denise Brogan-Kator (Family Equality Council). We discussed some of the intricacies of pre-transition and post-transition marriages, and divorce, annulment and custody issues. This was followed by a discussion with local activists Ruby Corado and Jason Terry of the D.C. Trans Coalition. We heard about some of the good work the Coalition is doing, and how we, as attorneys, can help the trans community more effectively.

Afterwards, we adjourned to the bar upstairs, and got a chance to catch up. I can't wait for the next one, and I hope you'll consider joining us.

Here is my list of the Fifty Top Trans Law Developments since our last Trans Law Institute. If I've missed anything, feel free to chime in at the comment section below.

MA state non-discrimination law passed

Macy v. Holder ruling by the EEOC that sex discrimination includes gender identity and expression

HUD housing rule prohibiting discrimination based on gender identity finalized

Deportation of same sex partners (and those who might otherwise be considered such) halted

The Social Security Administration's "no match" policy of alerting employers when an employee's gender doesn't match SSA records ended as to private employers

The Eleventh Circuit federal Court of Appeals held in Glenn v. Brumby that discrimination based on gender identity violates the Equal Protection clause of the U.S. Constitution, and suggested that it also violates the federal sex discrimination statute.

A number of cases found that discrimination based on sexual orientation violates the Equal Protection clause of the U.S. Constitution, most notably in the same-sex marriage cases, and this bodes well for similar decisions about gender identity.

California passed the Gender Nondiscrimination Act and the Vital Statistics Modernization Act (allowing change in birth certificates)

The Transgender Legal Defense and Education Fund helped a New York woman, Beth Scott, to receive insurance coverage for her mammograms

Jennifer Braly, a student at the University of Arkansas at Forth Smith, was able to gain appropriate bathroom access after U.S. Department of Justice involvement

The federal court in Minnesota held in Radtke v. Driver's Union that a trans woman married to a man was entitled to partner benefits

The American Psychiatric Association published a statement calling for legal rights of trans people

WPATH came out with its 7th edition of the Standards of Care

Alberta reinstated healthcare funding for sex reassignment surgery

LAPD put new trans guidelines in place

NYPD put new trans guidelines in place

The Justice Department issued new rules to prevent sexual assault of LGBT inmates

The High Court of Australia in AB v. Western Australia ruled that a man, for the purposes of the Gender Reassignment Act, is someone who appears to be a man, regardless of genitalia

The FAA updated its medical requirements, allowing trans pilots to fly with less hassling

A memo came out from the federal government stating that federal health-care programs and those funded with federal dollars are barred from discriminating against transgender people

Lambda Legal successfully won asylum in the case of Lopez Berera v. Holder, upholding an asylum claim for a Mexican transwoman facing danger in Mexico because of her gender identity

Doe v. Jindal, a Louisiana federal case seeking overrule the use of "crimes against nature" against trans people, was permitted to go forward on 14th Am claims. The use of the "crimes against nature" statute requires sex offender status and long prison terms.

A consent decree was entered into between the New Orleans Police Department (NOPD) and the Department of Justice (DOJ), mandating LGBT-specific policy and trainings, and that sexual orientation or gender cannot be used as probable cause for stop or arrest, transgender people are referred to by preferred name and pronoun, transgender people will not be subjected to overly invasive searches due to gender identity or to solely to determine anatomy or genitalia, same-gender searches to be done in accordance with gender identity.

Argentina passed a law allowing identity cards to honor gender identity

US Customs and Immigration Service came out with a memo re adjudication of immigration benefits for transgender people, no longer requiring evidence of SRS in all cases (though state law might)

In Soneeya v Spencer, the federal district court for Massachusetts held that a prison's gender identity disorder policy was invalid insofar as it determined, without exception, that certain accepted treatments for GID were never medically necessary for inmates in GID custody. The court held that the plaintiff had to receive treatment for her GID in accordance with community standards for adequate care.

In Clinton v. De La Cruz, a federal district court in California found that a prison had a duty of prison to make housing arrangements upon release for a trans prisoner who was a victim of prison rape, and needed assistance, and failure to do so gave rise to an 8th Amendment claim.

In Norwood v. Tobiasz, a federal district court in Wisconsin followed last year's Seventh Circuit ruling in Fields v. Smith, which had held that denial of treatment for gender identity disorder was unconstitutional. The court found that the plaintiff was entitled to be evaluated, and that, if she were diagnosed with the disorder, she would be entitled to treatment.

In Alexander v. Weiner, in the federal district court for Massachusetts, the court followed last year's First Circuit ruling in Batista v. Clarke, which held that denial or delay of treatment for an inmate with gender identity disorder constituted an 8th Amendment violation. The court ordered the prison to provide prescribed medical treatment for the inmate.

Kaeo-Tomaselli v. Pi'ikoi Recovery House For Women, D. Hawaii, involved an inmate denied entry into a halfway house allegedly because she was identified as a "sex change." Her claims included constitutional equal protection, the federal Fair Housing Act and slander. The court held that her equal protection and fair housing act claims stated proper claims under Price-Waterhouse and Schwenk.

The Veterans Administration issued two pharmaceutical protocols with respect to cross sex hormones for trans veterans

The labor union SEIU passed a resolution that locals will bargain for trans health care

Caster Semenya, whose gender had previously been questioned after chromosome tests, ran in the Olympics and got silver in the 880s

In Alaska, an ACLU case on the state drivers license policy resulted in permitting change of gender without surgery

Delaware, RI, VA and Maine changed their drivers license policies in favor of trans people

The CA Dept of Insurance proposed regulations that may flesh out insurance nondiscrimination law to say that exclusions for trans related care are impermissible in certain circumstances.

And on this one, there's a diversity of opinion in the trans community: Brown University prohibited ROTC on campus because it is not trans inclusive. Some say that organizations that are not trans-inclusive should not be on campuses. Others note that ROTC, which now allows gay students to participate, will create a path to trans service because those students will be more favorable to trans service inclusion when they reach leadership roles.


Here are some not so good results:

Cece McDonald was forced to plead guilty to manslaughter after she was assaulted by a crowd of people, the man who was running after her shouting epithets and grabbing at her was killed, and court made several rulings about evidence in favor of the prosecution.

No ENDA Executive Order

Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC held that the federal anti-discrimination statutes are trumped by religious doctrines, but only when involving employees considered "ministerial employees," such as a schoolteacher.

"Gender identity" was stripped from a proposed Jacksonville, Florida anti-discrimination ordinance

Victoria Carmen White's accused murderer was acquitted

NY DOH rejected the advice of an expert panel that advised NY Gov Cuomo that Medicaid should cover trans health care

A Swedish court cleared a man of attempted rape because his intended victim was trans

In Guzman-Martinez v. Corrections Corporation of America, a federal court in Arizona held that the officers and the city were not liable in a case involving a suspected undocumented transwoman, who was detained and then subjected to constant verbal abuse, multiple pat-downs by male officers for amusement purposes, and an officer was convicted of illegal sexual contact with her. They were found to have "qualified immunity" because there is "no clear consensus" that trans women should be provided housing separate from males, even though the court cited research that such housing is known to be dangerous

In Sears v. Newcomer, a Louisiana federal court denied medical treatment for gender identity disorder for a trans inmate who requested appropriate treatment, because the request was too "vague"

In Eastman v. Swanson, in the federal district court of Montana, the court held that verbal sexual harassment and threats of violence against a trans prisoner are not cognizable. The original opinion denied all claims, but a later substituted opinion found that parading the inmate around in underwear, after which suicide was attempted, stated a claim.

Jamison v. Davue, E.D. Cal, transwoman inmate brought claim for verbal sexual harassment based on trans status, inter alia. The court said "Plaintiff is cautioned, however, that transgender individuals do not constitute a "suspect" class, so allegations that defendants discriminated against him based on his transgender status are subject to a mere rational basis review.

Young v. University of Texas Correctional Health Care, E.D. Texas, the court upheld the state prison policy for provision of hormone replacement therapy for transgender prisoners. Under the policy, inmates must have a confirmed release date within 180 days, and have a letter from a surgeon stating that they will receive sex reassignment surgery immediately upon release. The court found that the claim was barred as res judicata, since the plaintiff had filed suit and lost on this claim in 2009. In that case, her claim was denied both because time-barred, since she had first requested hormone therapy upon incarceration in 2007 (was she too diligent?), and because denial of hormone replacement therapy for transsexual inmates is not a constitutional violation (unlike courts in the 1st and 7th federal circuits).

DeLonta v. Johnson, W.D. Va., in which the Court denied an Eighth Amendment claim based on failure to evaluate her for sex reassignment surgery. It also denied an equal protection claim based on housing of transsexual women in male prison facilities.

Bradley Manning's lawyers suggested in a court hearing that gender identity disorder could be a defense to the charges, though many observers wondered whether such a defense made sense and expressed concern about damage to the trans community as result of such an idea.


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