Transgender Rights: The Next Frontier?

From this, only a few days ago (June 2, 2015):

Dr. Paul R. McHugh, the former psychiatrist-in-chief for Johns Hopkins Hospital and its current Distinguished Service Professor of Psychiatry, said that transgenderism is a “mental disorder” that merits treatment, that sex change is “biologically impossible,” and that people who promote sexual reassignment surgery are collaborating with and promoting a mental disorder.

To this, just two days ago…:

Friday’s Supreme Court decision was a huge victory for the rights of gay, lesbian, and bisexual folks and those that love them. But it may also be a big win for the rights of transgender individuals and their loved ones.

Demands for transgender rights are often premised on recognition of the fact that the sex assigned to many people at birth does not comport with the gender experienced, lived, and expressed by those individuals later in life. As such, people should have a right to define and express their gender and should not be made social prisoners by the sex assigned to them.

…depicts in only three paragraphs the huge chasm that exists between those views that pathologize, and those that hinge on Kennedy’s majority opinion:

“The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.” (Emphasis added.)

What rights do transgenders seek? Simply put:

The ACLU champions transgender people’s right to be themselves. We’re fighting against discrimination in employment, housing, and public places (including restrooms) by seeking to add clear transgender protections to the law and bringing cases under the laws that already exist.

Here’s a piece on “Bathroom Bills”:

Various localities, states, and the federal government are being urged to expand the protected categories under existing civil rights laws to bar “discrimination” in employment, housing, and/or public accommodations on the basis of “gender identity.” “Gender identity” is typically described as “a gender-related identity, appearance, expression, or behavior of an individual regardless of the individual’s assigned sex at birth.” These bills would provide special protections for “transgender” individuals–an umbrella category that includes transsexuals (people who have had “sex-change” surgery), transvestites (cross-dressers), “drag queens” and “drag kings” (people who cross-dress for entertainment purposes only). Among the implications of these bills is that the use of sex-specific facilities, such as men’s and women’s public restrooms, locker rooms, and showers, could no longer be limited on the basis of a person’s actual biological sex. As a result, these bills have been dubbed “Bathroom Bills.”

But in reality:

The law on transgender issues is something of a Wild West — very few states make clear that the government will recognize a person’s post-transition gender, for example, and some states have explicitly passed laws refusing to acknowledge a trans resident’s gender, even after sex reassignment surgeries. The Supreme Court has declined to wade into case after case affecting transgender people — including job discrimination cases. But this could all change soon.

Suggested in the Scott Skinner-Thompson article are the following (adapted from the article):

  • Transgender individuals have a constitutional right to change their gender marker on their birth certificate, synchronizing their government identification with their true gender identity.
  • Government work places and public schools are required to make restrooms available to transgender individuals consistent with the individuals’ gender expression, strengthening the protections already provided by Title VII and Title IX of the Civil Rights Act.
  • Prisons and jails house the disproportionate number of incarcerated transgender people in facilities consistent with their gender identity and safety needs.
  • Government benefit programs, including state-sponsored health care programs, cannot forbid access to certain medical procedures because the procedure is not one traditionally made available to individuals assigned a certain sex at birth.

In an article I wrote yesterday about same-sex marriage and immigration delineating some of the rights that now will be open to same-sex individuals as opposite-sex individuals in immigration-related proceedings, transgenders seeking asylum in the U.S. already are being afforded relief. Strengthening transgender laws further will likely have a beneficial impact.

What is asylum?

To qualify for asylum, an applicant must show past persecution or fear of future persecution based on one of the five enumerated grounds:

  • Race
  • Religion
  • Nationality
  • Membership in a particular social group
  • Political opinion

From an article I wrote, LGBT Discrimination in Immigration Cases:

Large numbers of individuals apply for refugee status(9) and asylum status(10) in the U.S. because they fear that they will suffer persecution…

Applicants must have experienced persecution in their country or have a well-founded fear of persecution in the future to qualify.  A growing number of these claims have been reported.(11) Fear of persecution includes serious physical and sexual violence and consistently denied access to services ordinarily available to non-LGBT individuals at work, educational settings, legal settings, and matters pertaining to health and welfare.(12) LGBT individuals may also experience psychological harm.(13)

Many jurisdictions now recognize that “persecution does not cease to be persecution because those persecuted can eliminate the harm by taking avoiding action.”(14) There is no duty, therefore, to hide one’s sexual orientation.

LGBT claims are rooted most frequently in the “membership in a particular social group” category noted above. There are many jurisdictions that recognize that homosexuals may constitute a particular social group; this also may extend to bisexuals and transgender individuals, albeit less commonly.(15)

Federal circuit courts In the U.S. have ruled consistently that individuals persecuted because of their sexual orientation or gender identity are protected under the Refugee Act.(16)

For many reasons, quantitative data are lacking in the U.S. The agency, Heartland Alliance, estimated that there were 4,750 ORR-eligible (Office of Refugee Resettlement) LGBT persons in 2010.(17)

Winning asylum poses a tough slippery slope.  The success rate of LGBT asylum claims has been improving; notwithstanding, LGBT applicants continue to experience homophobic or discriminatory beliefs in the adjudication of their cases.

  1. People outside of the United States must apply for refugee status
  2. People who have already made it to the United States border or the interior can apply for asylum status
  3. UNHCR (the UN Refugee Agency) Guidance Note on Refugee Claims Relating to Sexual Orientation and Gender Identity, UNHCR Protection Policy and Legal Advice Section, Division of International Protection Services, Geneva, 21 November 2008
  4. Id. at 7
  5. Id. at 9
  6. Id. at 12
  7. Id. at 15
  8. Rainbow Welcome Initiative: An Assessment and Recommendations Report on LGBT Refugee Resettlement in the United States, Prepared for the Office of Refugee Resettlement, U.S. Department of Health and Human Services, Heartland Alliance, 01/2012,
  9. Id. at 11

I call your attention to a very well-written article that appeared in Time magazine a year ago, The Transgender Tipping Point, for an excellent overview:

The transgender revolution still has a long way to go. Trans people are significantly more likely to be impoverished, unemployed and suicidal than other Americans. They represent a sliver of the population–an estimated 0.5%–which can make it harder for them to gain acceptance. In a recent survey conducted by the Public Religion Research Institute, 65% of Americans said they have a close friend or family member who is homosexual, while 9% said they have one who is transgender. And as the trans movement has gained momentum, opponents have been drawn in to fight, many of them social conservatives who cut their teeth and fattened their mailing lists opposing same-sex marriage. But perhaps the biggest obstacle is that trans people live in a world largely built on a fixed and binary definition of gender. In many places, they are unwelcome in the men’s bathroom and the women’s. The effect is a constant reminder that they don’t belong.

A special debt is owed to high profile transgenders who have fought for trans rights. The latest celebrity to help pave the way is Caitlyn Jenner who has joined the ranks of other transgender activists:

Coming out as transgender required extra bravery for Caitlyn Jenner because she’s so famous, but as she mentioned in the interview, the bravery of many transgender activists who’ve come before her helped to pave the way for her journey.


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