In 2017 Danica Roem wrote her self into the US history books when she became the first openly transgender state lawmaker. It represented a big moment for the community, but it was one of the few positives in what became a very negative year.
President Trump threatened to repeal Obamacare, which many transgender people rely on, and even though he was ultimately unsuccessful, he also tried to have transgender people banned from the military. According to the Human Rights Campaign, more transgender people were murdered in 2017 than in any other year, with many cases displaying a clear anti-transgender bias regarding the way the victim was treated by their friends, family, community, and by even law enforcement (3 of those 27, Scout Schultz, Kiwi Herring and Sean Hake, were all killed by police). This is serious personal injury aimed at someone who was doing what was right by them. It’s everything this country is supposed to be against, yet we see it time after time.
So where does that leave the transgender community in 2018 and beyond? Does the law of the land protect someone who makes the transition and are they better off in some states than they are in others?
Anti Transgender Discrimination Laws
There are state laws and local laws that openly ban the discrimination of transgender people in education, employment and in public places. In states that do not have such anti-discrimination laws in place, it may still be illegal based on sex discrimination laws (as is the case in New Jersey and New York) or sexual orientation discrimination laws (as with Colorado and Minnesota). In California, discrimination of this type may also fall under their disability discrimination laws, as an amendment was made in 2000 to allow claims from people with gender dysphoria, which is the state of feeling like one’s actual sex is different from their biological one.
Of course, nothing is ever that straightforward, and the transgender community is still openly discriminated against without reprimand. There are issues concerning transgender bathroom access, with many of these issues handled on a case-by-case basis. Some states, including New York and Iowa, have made it clear that denying transgender individuals the right to use a gender-appropriate restroom violates nondiscrimination laws while many major cities, including Austin and Philadelphia, have created gender-neutral single-stall bathrooms to allow transgender people a safe alternative. You could argue that this is less of a fix and more of an avoidance, but their intentions were good. However, there are many more grey areas concerning this issue.
Name and Sex Laws
A transgender person is allowed to change their name to reflect their new gender in most states. They can take advantage of something known as a “common law name change”. This law states that a person’s name is a reflection of how society identifies them and how they identify themselves. In other words, if that’s what people call you and that’s what you want your name to be, then that is your name.
The issue with this law is that it does not create an actual, official paper trail and therefore does not protect the individual against future claims of fraud. If a transgender person wants to be officially recognized by a new name they should file a petition in court. A judge will then review the case and judge accordingly. Providing the applicant is not looking to change their name to avoid debts there are few reasons to refuse such an application.
Some states also require the applicant to post notice of their name change in a local newspaper. This practice is somewhat archaic, but while it may feel belittling to a transgendered person, it is a requirement created to stop debtors from using a name change to avoid their financial responsibilities.
A court-ordered name change is required before you can change the name (or sex) on a birth certificate or passport, but a “common law name change” can be used to alter the name on a driver’s license and state ID. All states have a system in place to facilitate this process.
A transition should not invalidate a marriage or affect the rights of parents, but there are exceptions. While many transgender people can maintain a close bond with their children after they have transitioned, others have their transitions used against them in custody battles. There are very few laws that protect a transgender person’s right where child custody battles are concerned, which means the judgment falls on a case-by-case basis.
If a couple wishes to remain married, then they may do so. Only when a couple chooses to annul a marriage or divorce will that legal bond change. However, a transgendered person may have their transition used against them by their spouse if the marriage occurred before the state approving a same-sex marriage law.
In 1848 in Columbus, Ohio, a law was passed that made it illegal for a person to go out in public “in a dress not belonging to his or her sex”. In the years that followed similar laws were created in dozens of cities across the United States. In 1954, Denver changed their law, which had made cross-dressing a jailable offense, so that it only applied to men in women’s clothing.
However, cross-dressing cases were readily dismissed, and by the 1980s most laws were overturned. Today, very few cross-dressing laws remain, and of the ones that do, it is highly unlikely that any cases would make it through the courts.
Transgender Laws in Prison
A transgendered person undergoing a strip-search in jail may have the right to request someone of the gender they identify with, but it depends on the state/local law, and such requests cannot be made prior to arrest. That leads us to one of the most significant issues concerning imprisoned transgender people: Will they be placed in a facility that matches their birth sex or their chosen sex?
Unfortunately, this is an area in which transgender laws are somewhat behind the times. The vast majority of facilities will house prisoners based on their birth sex, with some exceptions for those who have undergone genital surgery. The Prison Rape Elimination Act is forcing some changes for safety and wellbeing reasons. Before these changes, it was common for transgender individuals to be removed from general prison population and to be forced into protective custody, where the constant isolation was a severe detriment to their mental health.
Staff training and changes in the way transgendered prisoners are handled is helping with this problem, but it’s a drop in the ocean and at the time of writing this is still an area of transgender law which requires a lot of work.