On Transgender Day of Remembrance: Our Laws are Still Failing

Today, November 20, is National Transgender Day of Remembrance, where we honor the stolen lives of transgender people worldwide.  How horrific it is that we still have to count the lives taken by violence based on gender identity or presentation.  But it is deeply important to continue to talk loudly about these tragedies, in an effort to move ourselves forward into a world where all people can feel safe and comfortable in their bodies and communities.

This started off as an angry blog post.  I am learning that there is, of course, a place for anger in these discussions.  But I also believe we are in a unique position here at HWLJ, as future lawyers and scholars, to make a more solution-oriented commentary.  So after I indulged my anger, I reflected on a conversation that I had this past week that made me hopeful.  And instead of sharing my anger, I’ll share that instead.

I met a woman last week at work – I’ll call her Sarah.  She was friendly and inquisitive, and immediately upon my introduction, she asked me what type of law I hope to practice. 

I told her vaguely, as I often do when I first meet people, “gender rights and justice.”

“I don’t know what that means,” she replied.  “Can you tell me what you mean by ‘gender rights’?”     

“I’m interested in gender issues broader than just women’s rights,” I explained.  “Gender is also important for people who identify outside of the binary.”

“I don’t know what that means,” she replied again.  “What do you mean by outside the binary?”

“Well, for example, the rights of people who are transgender may not fall under ‘women’s’ rights.  Like access to healthcare,” I said.  “That’s a big one.”

“How so?” Sarah inquired.

I briefly explained that, for example, many trans men are denied access to healthcare that they need, because if their legal sex marker is “male,” certain services flagged as “women’s” health services (like pap smears or prenatal care) may not be covered by their health insurance or available from their doctors.

Sarah looked at me for a moment.  “You mean to tell me that there are people who have vaginas who can’t get health care related to those parts?”  Her tone was incredulous.

“That’s right.”

“Well that’s just ridiculous!”  She exclaimed.  “Just because a person’s legal identity has been changed to reflect who they are, doesn’t mean that they shouldn’t have access to the healthcare they need!” 

I nodded vigorously.

“That’s an easy issue,” Sarah asserted.  “There’s absolutely no way that people could not support that.  You won’t have to work on that for long.”

I smiled.  “This is why I love working in San Francisco,” I responded.

And it’s true.  Sarah went from zero to 120 in a brief few moments.  She couldn’t believe that anyone would challenge the idea that a person should receive healthcare that they want or need for the body that they have.  I reminded her that, unfortunately, it is not such an easy discussion nationwide. 

Employment discrimination based on gender identity was not prohibited under the federal antidiscrimination law, Title VII to the Civil Rights Act of 1964, prior to the EEOC’s 2012 holding in Macy v. Holder, and state anti-discrimination laws may or may not have included protections for employment discrimination based on gender identity.  According to the Movement Advancement Project’s (MAP) mapping of LGBTQ-related laws, only 18 states and D.C. have such laws – the same also prohibit housing discrimination based on gender identity, and 17 of them prohibit discrimination in public accommodations.

Only eight states and D.C. have statutes that govern denial of health insurance, according to MAP, which “bar health insurance issuers from denying or limiting coverage based on gender identity and require the removal of transgender exclusions from health plans.”  This means that in the majority of U.S. states, people may be discriminated against in housing, public accommodations, and health insurance if they are transgender or genderqueer.

But how will people know, you might wonder: there are plenty of people who aren’t visually identifiable as transgender!  Laws governing identity documents are even more dismal, and result in a broad lack of privacy.  Only 6 states and D.C. do not require proof of sex reassignment surgery before issuing a new birth certificate.  Sixteen states will only amend a birth certificate, which means that a person’s gender change is codified in their documents.  And three states will not reissue or amend a birth certificate.  Without a correct birth certificate, people are barred from obtaining proper ID cards and driver licenses, bank accounts, school or employment records, and much more.

And perhaps most relevant to the violence that we are condemning today, only fifteen states and D.C. have hate crime laws that include gender identity.  In 35 states, then, a person who attacks or kills another person because the victim is transgender has not committed a hate crime, and will not face increased penalties.

I prefer to expect the best of people, and so I will continue to hope that the majority of Americans, even if uninformed on these matters like Sarah, would respond with similar incredulity that it’s legally ok for trans people to be treated differently, targeted, and discriminated against, solely based on their gender identity and presentation.  But legal protections don’t reflect that.  Our nation’s laws are still missing protections for a large, diverse, but often silenced group of people.  So today, on Transgender Day of Remembrance, I’m calling on the policymakers, the lawyers, and the future lawyers among us: our laws are still failing all of us, and we have a lot more work to do


-Sonya Rahders, EIC Volume 26