Vital Signs Gender Reassignment

Proposals to streamline the process of changing gender have been unveiled by the government, as part of an attempt to boost equality for the LGBT community.

Pride in London crowds celebrate 50 years since decriminalisation of homosexuality

It will also become easier for gay men to give blood under the plans, unveiled by the women and equalities minister, Justine Greening. Her department will undertake a nationwide survey of the LGBT community, which will be used to inform future plans to boost equality.

The measures are announced before the 50th anniversary of the partial decriminalisation of homosexuality under the Sexual Offences Act 1967.

An attempt to speed up and de-medicalise the process for changing gender will be the main element of a consultation on the laws that underpin gender transition, enshrined in the Gender Recognition Act.

Current rules mean that a diagnosis of gender dysphoria is required to begin the process, while individuals have to provide evidence that they have been in transition for at least two years before they can apply to legally change their gender.

Meanwhile, the period after which men can donate blood after having sex with a man will be reduced from a year to three months. The reduction was decided after independent medical advice. It followed improvements to tests for various blood infections such as as HIV, hepatitis B, hepatitis C or syphilis.

A national survey will aim to consult 1.5 million LGBT people in Britain, which will then be used to inform future measures for boosting equality.

A consultation on the Gender Recognition Act will be published in the autumn. It will look at removing the need for a medical diagnosis of gender dysphoria before being able to apply for gender recognition. The current need to be assessed and diagnosed by clinicians is sometimes seen as intrusive.

Ruth Hunt, chief executive of Stonewall, welcomed the proposals. “We’re pleased the government recognises there is still more to be done to ensure all lesbian, gay, bi and trans people are accepted without exception,” she said. “The consultation on reforming the Gender Recognition Act is hugely encouraging.

“The 2004 act was ground-breaking in giving trans people a way to have their gender legally recognised, but the process is in dire need of reform. We need a simple process which isn’t medicalised, intrusive or demeaning. We would urge the government to ensure that all trans communities are consulted and to act quickly on their concerns.

“Change to the blood donation rules are also welcome. However, while this is an important move, it’s vital that this is a stepping stone to a system that doesn’t automatically exclude most gay and bi men.”

Greening said: “This government is committed to building an inclusive society that works for everyone, no matter what their gender or sexuality and today we’re taking the next step forward.

“We will build on the significant progress we have made over the past 50 years, tackling some of the historic prejudices that still persist in our laws and giving LGBT people a real say on the issues affecting them.”

Transgender rights in the United States vary considerably by jurisdiction.

Birth certificates are typically issued by the Vital Records Office of the state (or equivalent territory, or capital district) where the birth occurred, and thus the listing of biological sex as male, female or otherwise on the birth certificate (and whether or not this can be changed later) is regulated by state (or equivalent) law. However, federal law regulates sex as listed on a Consular Report of Birth Abroad, and other federal documents that list sex or name, such as the U.S. passport. Laws concerning name changes in U.S. jurisdictions are also a complex mix of federal and state rules. States vary in the extent to which they recognize transgender people's gender identities, often depending on the steps the person has taken in their transition (including psychological therapy, hormone therapy), with some states making sex reassignment surgery a pre-requisite of recognition.

The federal government does not have laws[when?] specifically protecting transgender people from discrimination in employment, housing, healthcare, and adoption, but some lawsuits argue that the Equal Protection Clause of the federal constitution or federal laws prohibiting discrimination based on gender should be interpreted to include transgender people and discrimination based on gender identity.[citation needed] U.S. President Barack Obama issued an executive order prohibiting discrimination against transgender people in employment by the federal government and its contractors.[1] In 2016, the Departments of Education and Justice issued a letter to schools receiving federal funding that interpreted Title IX protection to apply to gender identity and transgender students, advising schools to use a student's preferred name and pronouns and to allow use of bathrooms and locker rooms of the student's gender identity.[2] Recognition and protection against discrimination is provided by some state and local jurisdictions to varying degrees.

The Supreme Court decision in Obergefell v. Hodges established that equal protection requires all jurisdictions to recognize same-sex marriages, giving transgender people the right to marry regardless of whether their partners are legally considered to be same-sex or opposite-sex. The Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act added gender identity to the federal definition of a hate crime, but only some states and territories include gender identity in their hate crime laws.

Non-binary or genderqueer people may seek legal recognition of a gender identity other than that indicated by their birth sex; in 2016, Oregon became the first state to legally recognize non-binary people.[3] When a person's gender is not officially recognized, they may seek associated changes, such as to their legal name, including on their birth certificate.

Marriage[edit]

In Obergefell v. Hodges, the Supreme Court of the United States ruled that people have a right to marry without regard to gender. While this is commonly understood as a ruling allowing same-sex marriage, it also meant that a person's sex, whether assigned at birth or recognized following transitioning, can not be used to determine their eligibility to marry. Prior to this ruling, the right of transgender people to marry was often subject to legal challenge — as was the status of their marriages after transitioning, particularly in cases where an individual's birth sex was interpreted to mean a same-sex marriage had taken place.[4]

Cases[edit]

In 1959, Christine Jorgensen, a trans woman, was denied a marriage license by a clerk in New York City, on the basis that her birth certificate listed her as male;[5][6] Jorgensen did not pursue the matter in court. Later that same year, Charlotte McLeod, another trans female who underwent gender reassignment surgery, married her husband Ralph H. Heidel in Miami. She did not mention her birth gender, however, or the fact she was still legally a male.[citation needed] The first case in the United States which found that post-operative trans people could marry in their post-operative sex was the New Jersey case M.T. v J.T., (1976). Here the court expressly considered the English Corbett v. Corbett decision, but rejected its reasoning.

In Littleton v. Prange, (1999),[7] Christie Lee Littleton, a post-operative trans woman, argued to the Texas 4th Court of Appeals that her marriage to her genetically male husband (deceased) was legally binding and hence she was entitled to his estate. The court decided that plaintiff's gender is equal to her chromosomes, which were XY (male). The court subsequently invalidated her revision to her birth certificate, as well as her Kentucky marriage license, ruling "We hold, as a matter of law, that Christie Littleton is a male. As a male, Christie cannot be married to another male. Her marriage to Jonathon was invalid, and she cannot bring a cause of action as his surviving spouse." She appealed to the Supreme Court of the United States but it denied certiorari in 2000.[4]

The Kansas Appellate Court ruling in In re Estate of Gardiner (2001)[8] considered and rejected Littleton, preferring M.T. v. J.T. instead. In this case, the Kansas Appellate Court concluded that "[A] trial court must consider and decide whether an individual was male or female at the time the individual's marriage license was issued and the individual was married, not simply what the individual's chromosomes were or were not at the moment of birth. The court may use chromosome makeup as one factor, but not the exclusive factor, in arriving at a decision. Aside from chromosomes, we adopt the criteria set forth by Professor Greenberg. On remand, the trial court is directed to consider factors in addition to chromosome makeup, including: gonadal sex, internal morphologic sex, external morphologic sex, hormonal sex, phenotypic sex, assigned sex and gender of rearing, and sexual identity." In 2002, the Kansas Supreme Court reversed the Appellate court decision in part, following Littleton.[citation needed][9]

The custody case of Michael Kantaras made national news.[10] Kantaras met another woman and filed for divorce in 1998, requesting primary custody of the children. Though he won that case in 2002, it was reversed on appeal in 2004 by the Florida Second District Court of Appeal,[11] upholding Forsythe's claim that the marriage was null and void because her ex-husband was still a woman and same-sex marriages were illegal in Florida.[12] Review was denied by the Florida Supreme Court.[13]

In re Jose Mauricio LOVO-Lara (2005),[14] the Board of Immigration Appeals ruled that for purposes of an immigration visa, "A marriage between a postoperative transsexual and a person of the opposite sex may be the basis for benefits under ..., where the State in which the marriage occurred recognizes the change in sex of the postoperative transsexual and considers the marriage a valid heterosexual marriage."[14]

In Fields v. Smith (2006), three transgender women filed a lawsuit against this state of Wisconsin for passing a law banning hormone treatment or sex reassignment surgery for inmates. The courts of appeal struck down the law issuing that transgender people have a right to medical access in prison.[citation needed][15]

Parental rights[edit]

There is little consistency across courts in the treatment of transgender parent in child custody and visitation cases. In some cases, a parent's transgender status is not weighed in a court decision; in others, rulings are made on the basis of a transgender person being presumed to be an inherently unfit parent.

Courts are generally allowed to base custody or visitation rulings only on factors that directly affect the best interests of the child. According to this principle, if a transgender parent's gender identity cannot be shown to hurt the child, contact should not be limited, and other custody and visitation orders should not be changed for this reason. Many courts have upheld this principle and have treated transgender custody cases like any other child custody determination—by focusing on standard factors such as parental skills. In Mayfield v. Mayfield, for instance, the court upheld a transgender parent's shared parenting plan because there was no evidence in the record that the parent would not be a "fit, loving and capable parent."[16]

Other times, courts claiming to consider a child's interests have ruled against the transgender parent, leading to the parent losing access to their children on the basis of their gender identity. For example, in Cisek v. Cisek, the court terminated a transgender parent's visitation rights, holding that there was a risk of both mental and "social harm" to the children. The court asked whether the parent's sex change was "simply an indulgence of some fantasy". An Ohio court imposed an indefinite moratorium on visitation based on the court's belief that it would be emotionally confusing for the children to see "their father as a woman".[17]

Reproductive rights[edit]

Transgender people who haven't undergone sex reassignment surgery are still able to procreate. However, many states mandate sex reassignment surgery in order for a trans person's gender identity to be legally recognized. This has been criticized as forcible sterilization.[18] Some transgender people wish to retain their ability to procreate. Others do not require hysterectomy, phalloplasty, metoidioplasty, penectomy, orchiectomy, or vaginoplasty to treat their gender dysphoria. In these cases, the sexual reassignment surgery is considered medically unnecessary. Furthermore, sexual reassignment surgery is generally the final medical procedure in a complete sex change, and is a procedure which many trans people find financially prohibitive.[19]

Others advocate for a right to access assisted reproduction technology services and the preservation of reproductive tissue prior to sex reassignment surgery, which renders them infertile. This would include cryopreservation of semen in a sperm bank in the case of trans women and oocytes or ovum for trans men. For such individuals, access to surrogacy and in-vitro fertilization services is necessary to have children.[20]

Identity documents[edit]

Identity documents are a major area of legal concern for transgender people. Different procedures and requirements for legal name changes and gender marker changes on birth certificates, drivers licenses, social security identification and passports exist and can be inconsistent. Many states require sex reassignment surgery to change their name and gender marker. Also, documents which do not match each other can present difficulties in conducting personal affairs - particularly those which require multiple, matching forms of identification. Furthermore, having documents which do not match a person's gender presentation has been reported to lead to harassment and discrimination.[21][22]

Name change[edit]

Transgender people often seek legal recognition for a name change during a gender transition. Laws regarding name changes vary state-by-state. In some states, transgender people can change their name, provided that the change does not perpetrate fraud or enable criminal intent. In other states, the process requires a court order or statute and can be more difficult. An applicant may be required to post legal notices in newspapers to announce the name change - rules that have been criticized on grounds of privacy rights and potentially endangering transgender people to targeted hate crimes.[23] Some courts require medical or psychiatric documentation to justify a name change, despite having no similar requirement for individuals changing names for reasons other than gender transitioning.[24]

Birth certificates[edit]

U.S. states make their own laws about birth certificates, and state courts have varied in their application of such laws to transgender people.[25][26] A majority of states permit the name and sex to be changed on a birth certificate, either through amending the existing birth certificate or by issuing a new one. Many states, however, require medical proof of sex reassignment surgery in order to warrant a gender marker change. As of April 2015, Idaho, Kansas, Ohio, and Tennessee refuse to change the sex on a birth certificate.[27] Texas, by opinion of the local clerk's office, will make necessary changes to a birth certificate, including amendment of sex if a court order is presented. As of July 2014, New York State passed legislation easing changing recorded gender, and as of December 2014 New York City followed, completely eliminating the need for gender reassignment surgery when filing for birth gender change in New York.[citation needed][28] In November 2016, Nevada changed the requirements for a person to change their gender on their birth certificates, eliminating the surgery requirement and requiring only an affidavit from the person making the change and an affidavit who can attest that the information is accurate. [29]

Cases[edit]

The first case to consider legal gender change in the U.S. was Mtr. of Anonymous v. Weiner (1966), in which a post-operative transgender woman wished to change of her name and sex on her birth certificate in New York City. The New York City Health Department denied the request. She took the case to court, but the court ruled that the New York City Health Code didn't permit the request, which only permitted a change of sex on the birth certificate if an error was made recording it at birth.[30][31]

The decision of the court in Weiner was again affirmed in Mtr. of Hartin v. Dir. of Bur. of Recs. (1973) and Anonymous v. Mellon (1977). Despite this, there can be noted as time progressed an increasing support expressed in judgments by New York courts for permitting changes in birth certificates, even though they still held to do so would require legislative action. It should be noted that classification of characteristic sex is a public health matter in New York; and New York City has its own health department which operates separately and autonomously from the New York State health department.[citation needed]

An important case in Connecticut was Darnell v. Lloyd (1975),[32] where the court found that substantial state interest must be demonstrated to justify refusing to grant a change in sex recorded on a birth certificate.[citation needed][33]

In K. v. Health Division (1977),[34] the Oregon Supreme Court rejected an application for a change of name or sex on the birth certificate of a post-operative transgender man, on the grounds that there was no legislative authority for such a change to be made.[citation needed]

Drivers' licenses[edit]

All U.S. states allow the gender marker to be changed on a driver's license,[35] although the requirements for doing so vary by state. Often, the requirements for changing one's driver's license are less stringent than those for changing the marker on the birth certificate. For example, the state of Massachusetts requires SRS for a birth certificate change,[36] but only a form including a sworn statement from a physician that the applicant is in fact the new gender to correct the sex designation on a driver's license.[37] The state of Virginia has policies similar to those of Massachusetts, requiring SRS for a birth certificate change, but not for a driver's license change.[38][39]

Sometimes, the states' requirements and laws conflict with and are dependent on each other; for example, a transgender woman who was born in Ohio but living in Kentucky will be unable to have the gender marker changed on her Kentucky driver's license. This is due to the fact that Kentucky requires an amended birth certificate reflecting person's accurate gender, but the state of Ohio does not change gender markers on birth certificates.[40]

Cases[edit]

In May 2015, six Michigan transgender people filed Love v. Johnson in the United States District Court for the Eastern District of Michigan, challenging the state's policy requiring the information on a person's driver's license match the information on their birth certificate.[41][42] This policy requires transgender people to change the information on their birth certificates in order to change their driver's licenses, which is not possible in Idaho and Ohio, where three of the plaintiffs were born, and requires a court order in South Carolina, where a fourth was born. The remaining two residents were born in Michigan, and would be required to undergo surgery to change their birth certificates.[41] The plaintiffs in the case are represented by the American Civil Liberties Union.[41][42]

In November 2015, Judge Nancy Edmunds denied the State of Michigan's motion to dismiss the case.[41]

Passports[edit]

The State Department determines what identifying biographical information is placed on passports. On June 10, 2010, the policy on gender changes was amended to allow permanent gender marker changes to be made with the statement of a physician that "the applicant has had appropriate clinical treatment for gender transition to the new gender."[43] The previous policy required a statement from a surgeon that gender reassignment surgery was completed.[44]

Third gender option[edit]

Main article: Legal recognition of non-binary gender

As of 2017, the federal government does not recognize a third gender option on passports or other national identity documents. The option remains available only in Australia, New Zealand, India, Nepal, Pakistan, Bangladesh, Germany, Malta, and Canada.[45][46][47][48][49] Third genders have traditionally been acknowledged in a number of Native American cultures as "two spirit" people, in traditional Hawaiian culture as the māhū, and as the fa'afafine in American Samoa.[50][51][52][53] Similarly, immigrants from traditional cultures that acknowledge a third gender would benefit from such a reform, including the muxe gender in southern Mexico and the hijra of south Asian cultures.[54][55][56]

On June 10, 2016, an Oregon circuit court ruled that a resident, Jamie Shupe, could legally change their gender to non-binary. The Transgender Law Center believes this to be "the first ruling of its kind in the U.S."[3]

On September 26, 2016, intersexCalifornia resident Sara Kelly Keenan became the second person in the United States to legally change her gender to 'non-binary'. Keenan, who uses she/her pronouns cited Shupe's case as inspiration for her petition.[57] Keenan later obtained a birth certificate with an intersex sex marker. In press reporting of this decision, it became apparent that Ohio had issued an 'hermaphrodite' sex marker in 2012.[58]

On January 26, 2017, a bill was introduced in the California State Senate that would create a third, nonbinary gender marker on California birth certificates, drivers' licenses, and identity cards. The bill, SB 179, would also remove the requirements for a physician's statement and mandatory court hearing for gender change petitions.[59] This bill was signed into law on October 15, 2017; the non-binary option will become available on January 1, 2019.[60]

On June 15, 2017, Oregon became the first state in the U.S. to announce it will allow a non-binary "X" gender marker on state IDs and driver's licenses, beginning July 1. No doctor's note will be required for the change.[61] The following week, Washington D.C. announced that a non-binary "X" gender marker for district-issued ID cards and driver's licenses would become available later in June, with no medical certification required.[62] The D.C. policy change went into effect on June 27, making the district the first place in the U.S. to offer gender-neutral driver's licenses and ID cards.[63] Also in June, legislation was introduced in New York to offer an "X" gender marker for residents' ID cards.[62]

Discrimination[edit]

Laws[edit]

Although the Fourteenth Amendment to the United States Constitution provides equal protection under the law for all, there is no federal law designating transgender as a protected class, or specifically requiring equal treatment for transgender people. Some versions of the Employment Non-Discrimination Act introduced in the U.S. Congress have included protections against discrimination for transgender people, but as of 2015 no version of ENDA has passed. Whether or not to include such language has been a controversial part of the debate over the bill. In 2016 and again in 2017, Rep. Pete Olson [R-TX] introduced legislation to strictly interpret gender identity according to biology, which would end federal civil rights protection of gender identity.

On October 4, 2017, Attorney General Jeff Sessions released a Department of Justice memo stating that Title VII of the 1964 Civil Rights Act prohibits discrimination based on sex, which he stated "is ordinarily defined to mean biologically male or female," but the law "does not prohibit discrimination based on gender identity per se."[64]

There are 21 states and over 225 jurisdictions (as of 9 July 2016[update][65]) including the District of Columbia which feature legislation that prohibit discrimination based on gender identity in either employment, housing, and/or public accommodations. This legislation is similar to protections against sex and racial discrimination.[citation needed]

With the exception of some states and cities, it is legal at the federal level for parents to subjugate transgender children to undergo conversion therapy.

StateDate effectiveEmploymentHousingPublic accommodations
Minnesota1993[66]
Rhode IslandDec 6, 1995 (public accommodation)
July 17, 2001 (employment and housing)[67]
New MexicoJuly 1, 2003 (employment and housing)
2004 (public accommodation)
California[68]2004 (employment and housing)
Oct 9, 2011 (public accommodations)
District of Columbia2005 (employment and housing)
March 8, 2006 (public accommodations)
MaineDecember 28, 2005
Illinois2005 (employment and housing)
2006 (public accommodations)
HawaiiJuly 11, 2005 (housing and public accommodations)
May 5, 2011 (employment)
Washington2006
New Jersey2006
Vermont2007
Oregon2007
Iowa2007
Colorado[69]2007 (employment and housing)
2008 (public accommodations)
Nevada2011
Connecticut[70]October 1, 2011
Massachusetts[71]2012 (employment and housing)
2016 (public accommodations)[71]
Delaware2013
Maryland2014
Utah2015
New York[72]January 20, 2016

On January 30, 2012, HUD Secretary Shaun Donovan announced new regulations that would require all housing providers that receive HUD funding to prevent housing discrimination based on sexual orientation or gender identity.[73] These regulations went into effect on March 5, 2012.[74]

Cases[edit]

In 2000, a court ruling in Connecticut determined that conventional sex discrimination laws protected transgender persons. However, in 2011, to clarify and codify this ruling, a separate law was passed defining legal anti-discrimination protections on the basis of gender identity.[75]

On October 16, 1976, a Supreme Court rejected plaintiff's appeal in sex discrimination case involving termination from teaching job after sex-change operation from a New Jersey school system.[76]

Carroll v. Talman Fed. Savs. & Loan Association, 604 F.2d 1028, 1032 (7th Cir.) 1979, held that dress codes are permissible. "So long as [dress codes] and some justification in commonly accepted social norms and are reasonably related to the employer's business needs, such regulations are not necessarily violations of Title VII even though the standards prescribed differ somewhat for men and women."[77]

In Ulane v. Eastern Airlines Inc. 742 F.2d 1081 (7th Cir. 1984) Karen Ulane, a pilot who was assigned male at birth, underwent sex reassignment surgery to attain typically female characteristics. The Seventh Circuit denied Title VII sex discrimination protection by narrowly interpreting "sex" discrimination as discrimination "against women" [and denying Ulane's womanhood].[78]

The case of Price Waterhouse v. Hopkins 490 U.S. 228 (1989), expanded the protection of Title VII by prohibiting gender discrimination, which includes sex stereotyping. In that case, a woman who was discriminated against by her employer for being too "masculine" was granted Title VII relief.[79]

Oncale v. Sundowner Offshore Services, Inc. 523 U.S. 75 (1998), found that same-sex sexual harassment is actionable under Title VII.[80]

A gender stereotype is an assumption about how a person should dress which could encompass a significant range of transgender behavior. This potentially significant change in the law was not tested until Smith v. City of Salem 378 F.3d 566, 568 (6th Cir. 2004). Smith, a trans woman, had been employed as a lieutenant in the fire department without incident for seven years. After doctors diagnosed Smith with Gender Identity Disorder ("GID"), she began to experience harassment and retaliation following complaint. She filed Title VII claims of sex discrimination and retaliation, equal protection and due process claims under 42 U.S.C. § 1983, and state law claims of invasion of privacy and civil conspiracy. On appeal, the Price Waterhouse precedent was applied at p574: "[i]t follows that employers who discriminate against men because they do wear dresses and makeup, or otherwise act femininely, are also engaging in sex discrimination, because the discrimination would not occur but for the victim's sex."[81] Chow (2005 at p214) comments that the Sixth Circuit's holding and reasoning represents a significant victory for transgender people. By reiterating that discrimination based on both sex and gender expression is forbidden under Title VII, the court steers transgender jurisprudence in a more expansive direction. But dress codes, which frequently have separate rules based solely on gender, continue. Carroll v. Talman Fed. Savs. & Loan Association, 604 F.2d 1028, 1032 (7th Cir.) 1979, has not been overruled.

Harrah's implemented a policy named "Personal Best", in which it dictated a general dress code for its male and female employees. Females were required to wear makeup, and there were similar rules for males. One female employee, Darlene Jesperson, objected and sued under Title VII. In

Legal requirements each state has for altering the sex on one's birth certificate.

  State does not require SRS to alter sex on birth certificate

  Altering sex on birth certificate requires SRS12

  State does not alter sex on birth certificates for trans people

---- 1Some Texas officials have refused to amend the sex on birth certificates to reflect a sex change after the ruling Littleton v. Prange; however, a judge can order an amendment.
2From May 2013 to March 2017 Missouri allowed, through court order via CASE 13AR-CV00240, a quiet workaround of Mo. Ann. Stat. § 193.215(9). The workaround from the original petitioning case has been reversed by mandate of the several courts and Missouri now requires sexual reassignment surgery to change gender.
The procedure each state uses to alter the sex on one's birth certificate.

  New birth certificate is issued with correct sex designation

  Old birth certificate is amended to correct sex designation

  State does not alter sex on birth certificates for transgender people

Current U.S. LGBT employment discrimination laws.

  Sexual orientation and gender identity: all employment

  Sexual orientation: all employment, gender identity only in state employment

  Sexual orientation: all employment

  Sexual orientation and gender identity: state employment only

  Sexual orientation: state employment only

  No state-level protection for LGBT employees

States that prohibit housing discrimination based on sexual orientation or gender identity. HUD regulations require all housing providers that receive HUD funding not to discriminate against an individual's sexual orientation or gender identity.

  Prohibits housing discrimination based on sexual orientation and gender identity

  Prohibits housing discrimination based on sexual orientation only

  Does not factor sexual orientation or gender identity/unclear

Map of U.S. cities and counties that have bans on sexual orientation and gender identity change efforts with minors.

  Ban on conversion therapy for minors on the basis of sexual orientation and gender identity

  No ban on conversion therapy for minors on the basis of sexual orientation

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