Wednesday, April 2, 2014

Transgender Law Update

Attorney Elaine Fitch and I attended an excellent seminar last month on representing transgender people. The DC Bar hosted the event with support from Alison Gill of the Trans Legal Advocates of Washington (TransLAW).

I was struck by the statistics from the National Trans Discrimination Survey. Transgender people are four times more likely to live in poverty, and 41% of transgender people have attempted suicide.  78% experienced harassment, mistreatment or discrimination in employment. 


Also, there are international standards for accommodating transgender people. The standards address policies for bathroom use, dress codes (why are they every gender specific?), and school district policies.

How many of us have two or more single-occupancy bathrooms, and designate them as male or female?  Why?

The federal Office of Personnel Management (OPM) has a guidance for federal agencies. This guidance can be a helpful model for other employers.


The District of Columbia Office of Human Rights (OHR) has good regulations against transgender discrimination. See DC Municipal Regulations 4-800 to 4-899. For example, gender designations on single occupancy bathrooms are now illegal in DC. 802.2 "All entities covered under the Act with single-occupancy restroom facilities shall use gender-neutral signage for those facilities (for example, by replacing signs that indicate "Men" and "Women" with signs that say "Restroom")."

Seventeen (17) states, DC and 175 localities have laws prohibiting gender identity discrimination. Federal courts and agencies are now recognizing causes of action for sex discrimination on behalf of transgender people.  See Smith v. City of Salem (6th Cir. 2004) (first Circuit Court decision holding transgender plaintiffs could bring Title VII claims); Schroer v. Billington (D.D.C. 2008) (district court decision holding transgender discrimination is "literally" sex discrimination, in a case against the Library of Congress); Glenn v. Brumby (11th Cir. 2011)(gender stereotyping can apply to transgender people).

Two years ago, the EEOC issued a unanimous decision in Macy v. Department of Justice, EEOC Appeal No. 0120120821 (April 20, 2012). EEOC declared that anti-transgender discrimination is by definition sex discrimination.

Transgender people also face obstacles in getting birth certificates and other documents corrected, especially in states that require evidence of surgery.  Most transgender people do not get surgery.  Many cannot afford it. Some do not need it. Medical insurance often tries to deny coverage for surgery, even though such denials may be unlawful, and are always discriminatory. (HHS takes complaints.) DC's DISB enforces an ordinance against such discrimination. District Official Code § 31-2231.11(c), the District's Unfair Insurance Trade Practices Act.

The Prison Rape Elimination Act requires prisons to provide an option for separate showing.  How burdensome is getting a shower curtain? Lisa Mottet of the National Center for Transgender Equality said the Department of Justice's Bureau of Prisons actually has a better rule than the Department of Homeland Security on this point.

Amy Nelson of the Whitman-Walker Health Legal Services announced that 700 out of their 7000 patients are transgender. There is clearly a market for legal services to transgender people. The law is moving in their favor. Lisa Mottet said that transgender cases usually do not have difficultly in showing causation. "Trans discrimination is usually very clear."

The long arc of the Civil Rights Movement strives to assure that each job is filled with the best person, without discrimination. We join that Movement by making clear that we serve transgender people.


By Richard Renner

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