GPSolo April/May 2007
Representing Transgender Clients
Cole Thaler, Lambda Legal’s transgender rights attorney, is based in Atlanta, Georgia, and can be reached at firstname.lastname@example.org. The author thanks Alphonso David and Christopher Daley for their substantial contributions to the second portion of this article. Portions of this article appeared in the February 2006 issue of the Westchester County, New York, Bar Association Family Law Section’s Domestic Law Review.
When Jimmie Smith’s co-workers began to notice the Salem, Ohio, firefighter’s feminine demeanor and appearance, they unleashed a relentless barrage of insults. The co-workers thought Smith was a feminine man whose lack of masculinity provided a convenient source of jokes. In response to this ongoing harassment, Smith privately approached a supervisor and explained that Smith had been designated male at birth, but had a female gender identity—in common terms, she was a transsexual. Smith explained that her appearance would become increasingly feminine as her transition continued, and that eventually she would live as a woman all the time.
After promising Smith that he would not disclose the private information she had shared, the supervisor convened a meeting of the city executive body to devise a plan to terminate Smith. The plan—called a “witch hunt” by another employee—involved forcing Smith to undergo three separate psychological examinations in the hope that she would either resign or would refuse to comply, justifying her termination on the grounds of misconduct. Smith was also suspended for violating a selectively enforced workplace policy.
In 2001 Smith filed suit in federal district court, claiming that the actions of the Salem Fire Department violated the federal prohibition on sex discrimination codified in Title VII of the Civil Rights Act of 1964. In 2004 the Sixth Circuit denied the Salem Fire Department’s motion to dismiss and adopted a rationale that is increasingly (although not yet unanimously) accepted by state and federal courts: Existing statutory prohibitions on sex discrimination bar discrimination against transgender people.
Transgender Legal Issues
Employment discrimination is just one of many legal minefields faced by transgender people (an umbrella term that includes those who transition from one sex to another, as well as those whose gender expression challenges traditional expectations of masculinity or femininity). But employment discrimination often triggers a spiral of other problems: Transgender employees who are terminated lose access to health insurance and must pay medical bills out of pocket or forgo care altogether. This can lead to depression, anxiety, and other negative health consequences. Transgender people faced with a sudden drop in income may discover that their state’s Medicaid program excludes coverage for transgender care; that their local homeless shelters will place them in housing that is inappropriate for their gender identity; and that the police subject them to increased scrutiny and arrest—sometimes for simply using a restroom. State agencies can make it difficult to change identity documents, such as driver’s licenses, to correctly reflect name and sex (and mismatched documentation makes police scrutiny even more likely). Individuals coming to terms with their transgender identity may find their gender used as ammunition against them in ugly divorces or custody disputes. And incarcerated transgender people are at heightened risk of assault, rape, punitive confinement, and inadequate medical care.
In light of the friction between transgender people and a society that views them with derision, the work of transgender advocates is a vital resource—and courtroom victories are especially meaningful.
Recent court decisions have established that discrimination against transgender employees is indeed sex discrimination, regardless of whether the legislators who passed Title VII had this specific result in mind. In 1983 the Seventh Circuit in Ulane v. Eastern Airlines, Inc. held that a transgender pilot who was fired after transitioning had no recourse under Title VII. However, such logic has been undermined by courts’ growing recognition that the ills contemplated by a statute’s drafters do not and should not serve to limit the application of those laws. In Justice Scalia’s words, “It is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” Scalia’s remark comes from the 1998 Oncale v. Sundowner decision, in which the Court held that Title VII applies equally to cases of same-sex and different-sex harassment. Although he voted with the dissent in Price Waterhouse v. Hopkins, Scalia could have been thinking of that 1989 decision in which the Supreme Court acknowledged that discrimination against employees who fail to meet their employers’ expectations of masculinity or femininity constitutes discrimination on the basis of sex stereotypes.
The sex stereotyping discrimination recognized in Price Waterhouse is the doctrine under which many state and federal courts have recognized protections for transgender employees. As the Sixth Circuit held in Smith v. City of Salem, “Sex stereotyping based on a person’s gender non-conforming behavior is impermissible discrimination, irrespective of the cause of that behavior; a label, such as ‘transsexual,’ is not fatal to a sex discrimination claim where the victim has suffered discrimination because of his or her gender non-conformity.”
At least one federal court has posited another theory of recovery for transgender employees under Title VII. In ruling that the Library of Congress’s withdrawal of a job offer from Diane Schroer, a transgender woman, constituted sex discrimination, a federal judge in the District of Columbia recently held that such action involved no stereotyping but was “literally . . . discrimination because of sex.”
Transgender activists, not content to wait for courts in every circuit to acknowledge that sex discrimination laws include transgender people, have worked to pass laws across the country banning discrimination on the basis of gender identity and gender expression in employment, public accommodation, housing, credit, and other categories. These laws and ordinances dot the nation, from Hawaii to Rhode Island; the most recent statewide protection took effect in New Jersey in January 2007. Such protections—which currently cover about 33 percent of U.S. residents—leave no room for ambiguity about scope or theories of transgender protections.
Although nondiscrimination laws get the most press, they are not the only statutes that are designed to help transgender people. Most states have enacted laws or regulations allowing transgender people to change the sex designation on their birth certificate to match the sex to which they have transitioned. Only one state—Tennessee—has a law providing that “the sex of an individual will not be changed on the original certificate of birth as a result of sex change surgery.” However, a bill to overturn this law was introduced in the Tennessee legislature in 2005, and transgender activists have high hopes for its reintroduction and passage in 2007.
Although the vast majority of states allow transgender people to change the sex designation on their birth certificate, these laws too often require sex reassignment surgery—a hurdle that is medically or financially impossible for many transgender people or sometimes unnecessary for mental well-being. Furthermore, even once such hurdles have been cleared, the state agencies responsible for making changes to official documents occasionally require stern reminders from watchful attorneys about their obligation to do so. For example, a Virginia law requires that transgender people change their sex “by medical procedure” before the state will change the sex designation on their birth certificate. In 2002, however, the Virginia Office of Vital Records refused to change the “F” to an “M” on the birth certificate of a man who had received extensive medical treatment, including multiple surgeries, to change his sex to male (and who obtained a Virginia court order stating that he was legally male). The Office of Vital Records insisted that the man needed to undergo a phalloplasty—a complex surgical procedure costing nearly $100,000 and often not covered by insurance—before it would change the birth certificate. It was not until Lambda Legal threatened to sue on the man’s behalf that the agency agreed to issue a corrected birth certificate.
Even more shockingly, judges sometimes refuse to grant name changes to transgender people without medical evidence that the person has undergone sex reassignment surgery. In In re Guido, for example, the New York Civil Court in 2003 reversed an order denying a transgender woman’s name change. Noting that masculine and feminine names are “a matter of social tradition” and that gendered associations of some names have changed over time, the court wrote that “there is no reason—and no legal basis—for the courts to appoint themselves the guardians of orthodoxy in such matters.” As the Guido court observed, judicial demands that transgender petitioners supply physician affidavits are completely unsupported in law—virtually every state permits name changes for any reason other than fraud or deception. But, too often, judges hold transgender people to unreasonable evidentiary standards. Once again, it is typically only through the vigilance of transgender advocates that such decisions are reversed.
Unsurprisingly, the most fraught sites for judicial affirmation of gender identity are sex-segregated institutions such as prisons, foster care group homes, and the most famous gender-segregated institution of all: marriage. When Christie Lee Littleton filed a medical malpractice action against the doctor who treated her deceased husband, a Texas court of appeals dismissed her claim—not because it found no malpractice, but because it determined that Christie Lee, who had been designated male at birth, could not be considered a woman under Texas law and thus had never been validly married. Discounting extensive medical evidence that Christie Lee was psychologically and anatomically female, the Texas court revealed its bias in the first paragraph of the opinion by framing the issue as whether gender is “immutably fixed by our Creator at birth.” According to the Littleton majority, the difference between men and women is “one of the more pleasant mysteries”; transition from one sex to another “cannot be willed into being.” Courts in Kansas and Florida have adopted Littleton’s holding, while a New Jersey court has upheld the validity of a marriage between a transgender woman and a man.
Gender categorization disputes are also common when a transgender person is in state custody, such as a prison, juvenile justice facility, or foster care group home. The stubborn refusal of officials in such settings to recognize transgender people’s gender identity affects not only placement decisions—with transgender women typically held in men’s prisons—but also leads to restrictions on gender expression, such as the refusal by staff at the New York Office of Children and Family Services to allow transgender youth Jennifer Rodriguez to cross her legs at the knee or have a feminine hairstyle.
Unwillingness to respect the identity and needs of transgender people sometimes leads prison officials to deny adequate medical treatment for the disabling gender dysphoria that many transgender people experience. A growing body of Eighth Amendment jurisprudence—including Kosilek v. Maloney (a 2002 Massachusetts federal court decision) and De’Lonta v. Angelone (a 2003 Fourth Circuit decision)—affirms that transgender people have a serious health condition (often diagnosed as Gender Identity Disorder) requiring evaluation and treatment. The scope of that care, however, is often left to the discretion of prison doctors, whose treatment decisions are frequently colored by inexperience with transgender health and by their own prejudices. Nor are nonincarcerated transgender people guaranteed insurance coverage for their health care needs: Private insurance companies often exclude coverage for sex reassignment surgery. However, increasing research about the medical necessity of such treatment for transgender people, and emerging evidence that insurance coverage is not nearly as expensive as insurers feared, is turning that tide.
Considerations for Attorneys
Attorneys’ obligations to provide their clients with effective representation, zealous advocacy, and basic respect apply equally to their transgender clients, a population whose need for representation—as is evident above—is often acute. To be sure, legal disputes over employment, relationship dissolution, housing, and other aspects of day-to-day life are not particular to any one gender identity any more than they are to any sexual orientation or ethnicity. However, the challenges faced by transgender clients are sometimes unique. Attorneys who are sympathetic to the issues and interested in working in a cutting-edge field should consider making their services available to the transgender community, particularly with pro bono hours or at a reduced rate.
Even if your practice rarely allows for donated services, taking the time to seek transgender clients is of critical importance to an underserved community. Many national organizations, including Lambda Legal, maintain databases of transgender-friendly attorneys to whom we direct callers and often turn for litigation assistance. Transgender magazines, newsletters, and websites often list attorneys’ contact information. Gay and lesbian bar associations maintain referral databases that the transgender community often draws upon. And ads in publications targeting gay and lesbian people are another good method to reach the transgender community.
When your first transgender client calls your office or walks in the door, what should you do? In general, be open and receptive to your client’s self-identification. It is common to make an assumption about a person’s gender identity based on appearances. In some instances, the assumption will accurately reflect the person’s gender identity, and in other instances it will not. A person’s expression or identity may be non-stereotypical or defy expectations. Therefore, resist making assumptions about a person’s gender identity and instead ask your client how he or she would prefer to be addressed.
In the course of your representation of a transgender client, it might or might not be important for the documents you draft to reflect your client’s transgender status. Attorneys representing transgender clients should be careful to use the correct name and pronoun in all pleadings, correspondence, and other documents. It is correct to use the name and pronoun that correspond to your client’s gender identity—for example, use female pronouns for people who have transitioned from male to female. If your client’s name and/or gender identity change during the course of your representation, documents may need to reflect or acknowledge that change. If older pleadings refer to your client with a former name, consider using the term “now known as,” or “n/k/a,” on the caption in future pleadings. In all situations, confer with your client prior to disclosing his or her transgender status on documents and in court. To the extent that it is relevant and would assist the judge to understand that your client is transitioning, provide such explanations in a manner consistent with your client’s wishes. For example, your client might prefer that any transgender-related courtroom discussion take place at sidebar rather than in open court or might wish to proceed without revealing his or her transitioning.
Respectful representation of transgender clients surpasses the legal matters themselves. Your practice’s intake forms should permit space for new clients to list a preferred name. Your office’s restrooms should be accessible based on gender identity, not genital anatomy. If possible, gender-neutral bathrooms should be made available, although transgender clients should not be forced to use non-gendered facilities. Train staff to be respectful of your transgender clients. If your office has a nondiscrimination policy, consider following best workplace practices by amending it to include gender identity and expression.
Finally, remember that you’re not practicing in a vacuum. Lawyers who are familiar with transgender legal issues are available to provide information, advice, and support. As you share your skills with this vulnerable and underserved population, Lambda Legal encourages you to take advantage of our knowledge base by reaching out to our experienced staff attorneys. For more information, see our website, www.lambdalegal.org.