U.S. Human Rights  

humanrights_equality_us

The traditional view of gender as being binary - either male or female - is increasingly becoming outdated. While in many countries men and women are regarded as equal before the law, the same cannot necessarily be said for people who are transgender. Transgender is a broad term for people who do not identify or conform to the physical gender they were born with. The last decade has seen some advances for transgender people, but their legal rights are still very much in their infancy.

Rights are interrelated. A single act or event can produce multiple violations. A law that criminalizes same-sex sexual activity not only runs counter to the rights to privacy and non-discrimination contained in the International Covenant on Civil and Political Rights, it also drives vulnerable populations underground and prevents them from accessing treatment, thus undermining their right to health guaranteed in the International Covenant on Economic, Social and Rights. Arrest and detention of same-sex couples solely on grounds of their sexual orientation or private consensual sexual activity, is not only in breach of the non-discrimination guarantee, it also breaches the guarantee on freedom from arbitrary detention.

Restrictions on freedom of expression and peaceful assembly impact not only LGBT individuals and groups, but also the essential work of human rights defenders.

To best understand transgender in the United States and their position in society is to understand the laws as it applies and those issues addressed that affect transgender individual’s living in the united states. To address questions and supply answers to those issues and laws.

Are there laws that clearly prohibit discrimination against transgender people?

Yes. California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, Washington and the District of Columbia all have such laws. Their protections vary. For example, Nevada's law bans discrimination in employment, housing, and public accommodations; Maine's law covers those categories plus credit and education.

At least 160 cities and counties have passed their own laws prohibiting gender identity discrimination including Atlanta, Boise, Buffalo, Cincinnati, Dallas, Indianapolis, Kansas City, Louisville, Nashville, New Orleans, and Pittsburgh. A list of localities with non-discrimination laws that cover gender identity and/or expression is available at http://www.transgenderlaw.org/ndlaws/index.htm#jurisdictions.

The governors of Indiana, Kansas, Kentucky, Maryland, Michigan, New York, and Pennsylvania have banned discrimination against transgender state workers through executive orders. Unless an executive order is expressly limited in duration or is rescinded, its protections usually stay in effect even after the person issuing the order leaves office. Some cities and counties have also passed protections for their transgender public employees. A list of localities that ban discrimination against their public employees on the basis of gender identity or expression is available at 

http://www.transgenderlaw.org/ndlaws/index.htm#public.

Do laws that prohibit sexual orientation discrimination protect transgender people?

In some cases, yes. If a law banning discrimination based on sexual orientation defines "sexual orientation" to include gender identity (as, for example, the ones in Colorado, Illinois, and Minnesota do), it protects transgender people as well as lesbian, gay, and bisexual people.

Also, most sexual orientation non-discrimination laws prohibit discrimination based on perceived as well as actual sexual orientation. Therefore, in most places with laws against sexual orientation discrimination, if a person discriminates against a transgender person because of his or her belief that the victim is gay (even if that belief is wrong), the transgender person is protected.

Do laws that prohibit sex discrimination protect transgender people?

An increasing number of courts say yes. Although there are some older decisions saying that the federal law banning sex discrimination in employment (Title VII of the 1964 Civil Rights Act) does not prohibit gender identity discrimination, federal courts that have considered the issue more recently (e.g., the Courts of Appeals for the Sixth, Ninth, and Eleventh Circuits, covering Kentucky, Michigan, Ohio, Tennessee; Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington; Alabama, Florida and Georgia) have found some protections in the 1964 Civil Rights Act for transgender people. In addition, a federal district court in Washington, D.C. ruled that employment discrimination against an individual for transitioning from one gender to another is a form of discrimination "because of sex," prohibited by federal law.

Transgender individuals anywhere in the country who feel they have experienced employment discrimination can file complaints with the U.S. Equal Employment Opportunity Commission (EEOC). In a 2012 decision, the EEOC found that "discrimination against a transgender individual because that person is transgender is . . . discrimination ‘based on . . . sex,' and . . . violates Title VII." The EEOC investigates the reports of discrimination it receives, and can arrange mediation, sue an employer, or give the person complaining permission to bring her own lawsuit.

Paralleling the federal trend, some state courts and administrative agencies (such as in California, Connecticut, Hawaii, Massachusetts, New Jersey, New York and Vermont) have said that their state sex discrimination law covers discrimination against transgender people.

Does the U.S. Constitution protect transgender people from discrimination?

Although the U.S. Supreme Court has never considered this question, we think the answer is yes. It is important to remember, however, that constitutional protections only cover discrimination or mistreatment by the government.

The U.S. Constitution's guarantee of equality protects transgender people from being treated differently by the government because of fear or hostility. If, for example, a government supervisor imposes a stricter dress code on a male-to-female transgender worker than on other female workers for no reason other than his or her dislike of transgender people, that violates the constitutional right to equal treatment. However, constitutional equality protections for transgender people as an identifiable group are not yet nearly as robust as those for people of color and women.

Growing recognition by some federal courts that discrimination against transgender people is a form of sex discrimination offers transgender people in those jurisdictions the same level of protection under the Equal Protection Clause as that provided to women. For example, the Eleventh Circuit in 2011 decided in favor of a transgender woman who was terminated because she wanted to start transitioning at work. The court found that "discrimination against a transgender individual because of her gender-nonconformity is sex discrimination, whether it's described as being on the basis of sex or gender."

In our view, the First Amendment, which bars the government from censoring speech or expression, also protects our right to dress in a way that is consistent with our gender identity. The way we dress is an important form of personal expression. There is currently little case law regarding the First Amendment right to express one's gender.

Finally, individuals have important interests in the determination of their gender and the expression of their gender through personal appearance and mannerisms, which are interests that we believe the Due Process Clause recognizes and protects. These constitutional arguments, however, have not yet achieved widespread acceptance by courts.

State constitutions are also a source of protection against discrimination by state and local government.

Are there laws that specifically protect transgender students from harassment or discrimination?

More and more, schools are protecting transgender students from harassment or discrimination. California, Colorado, Hawaii, Illinois, Iowa, Maine, Maryland, Minnesota, New Jersey, New York, North Carolina, Oregon, Vermont, Washington, and the District of Columbia have state laws specifically protecting transgender students in public schools from harassment and/or discrimination. Some of these state laws explicitly apply to education, while other states (including Colorado, Illinois, Maine, New Jersey, Nevada, Vermont, and Washington) classify public schools as public accommodations where gender identity discrimination is prohibited. In Colorado, Illinois, Maine, Nevada, New Jersey, and the District of Columbia, gender identity discrimination laws also cover some or all non-sectarian private schools. A number of local school districts, from Decatur (GA) to Kalamazoo (MI), have adopted similar protections through rules or policies. Several states also have more general laws banning bullying and harassment of any sort but not specifically mentioning gender identity.

Several of the states where gender identity discrimination is prohibited in public schools (including Connecticut, Colorado, and Massachusetts) have issued regulations or guidance clarifying what schools must do to accommodate transgender students, in areas like updating of educational records, access to appropriate restrooms, and bullying prevention. A number of school districts have also created rules or policies to address these issues.  In 2013, California became the first state to pass a law that requires students in public schools to be permitted to access sex-segregated spaces, programs, and activities consistent with their gender identity.

The federal law prohibiting sex discrimination in educational programs receiving federal funds (Title IX of the Education Amendment Acts of 1972) bars sexual harassment of any student. Title IX also prohibits gender-based harassment, which includes harassment based on a student's departure from sex stereotypes. Therefore, Title IX should protect transgender students from harassment and discrimination, but the courts are still grappling with the issue. Title IX applies to all public schools, and to many private schools that receive federal funding.

Are there laws that protect transgender students' right to participate in high school and college sports?

Non-discrimination laws that cover gender identity should provide protection for student athletes who wish to participate in sex-segregated sports consistent with their gender identity.

In sex-segregated circumstances, school districts sometimes establish their own policies to determine which team a transgender athlete will compete on and which locker room he or she will use. A few states have adopted statewide policies or guidelines. For example, Washington allows transgender student-athletes to participate in sports consistent with their gender identity irrespective of the gender listed on their student records, and Connecticut has published similar guidance. Colorado and Illinois both have more complicated statewide policies on determining a student's eligibility for gender-specific school activities, including sports, by evaluating students' school records, their medical history, and the advantages of their participation.

The National Collegiate Athletic Association, which organizes competition in 23 sports at over 1,000 colleges and universities, allows transgender student-athletes to participate in sex-segregated sports consistent with their gender identity as long as they are receiving hormone therapy. Under NCAA rules, a transgender woman must take testosterone suppression medication for at least a year before competing on a female team.

Does the law protect a transgender person's right to use the restroom consistent with his or her gender identity?

There's no clear answer because very few courts have considered this question. The Minnesota Supreme Court has ruled that even a law prohibiting gender identity discrimination does not necessarily protect an individual's desire to use a gender identity-appropriate restroom at work. The Tenth Circuit in 2007 upheld the Utah Transit Authority's decision to fire a transgender bus driver, based on a claim that her employer risked liability for her use of public restrooms along her bus route. In a non-workplace context, a New York appeals court has ruled that it is not sex discrimination for a building owner to prevent transgender people from using gender identity-appropriate restrooms in a building housing several businesses.

Some jurisdictions (e.g., Colorado, Iowa, San Francisco, New York City, and the District of Columbia), however, have indicated that denying transgender people the right to use a gender identity-appropriate restroom violates non-discrimination laws. In addition, Washington's Human Rights Commission states that "transgender employees should be permitted to use the restroom that is consistent with the individual's gender identity." Some jurisdictions (e.g., Iowa, San Francisco, and D.C.) make clear that transgender people cannot be required to prove their gender to gain access to a public bathroom, unless everyone has to show ID to use that bathroom. Other jurisdictions (e.g., Chicago) continue to allow businesses to determine whether a transgender patron is given access to the male or female bathroom based on the gender on his or her ID.

Many businesses, universities and other public places are installing single-stall, unisex restrooms, which alleviate many of the difficulties that transgender people experience when seeking safe restroom access. While this is often a useful step towards addressing the needs of transgender people and others, we believe that transgender individuals should have the right to use restrooms corresponding to their gender identity rather than being restricted to only using gender-neutral ones.