What Does It Mean to Be Real?
Transgender Identity and the Law

By Cole Thaler

Mark was worried. The 39-year-old New Jersey resident drove through a notorious speed trap on his way to work each day. While he hadn’t gotten stopped for speeding yet, he’d caught himself driving over the speed limit a few times without meaning to. Mark had the financial means to pay a speeding ticket, but he was concerned about what would happen after he handed his driver’s license to the police officer. When Mark was born, he had female anatomy. His parents named him Marilyn. In adulthood, Mark transitioned to male, but his driver’s license still listed his sex as female.

In 2007 Mark went to the New Jersey Motor Vehicle Commission and asked about changing the sex designation on his license. The woman behind the counter told him that he needed to present proof of a “surgical sex change.” But Mark was healthy and content with his gender without surgical treatment, and his physician confirmed that Mark’s gender transition was complete without surgery. Even if he needed it, gender reassignment surgery is typically not covered by insurance. Paying a $100 speeding ticket was one thing—but Mark couldn’t afford to pay thousands of dollars out of pocket for surgery.

Mark was stuck: He couldn’t satisfy the Motor Vehicle Commission’s policy requirement, but he lived as a man full-time. If he handed the police officer a driver’s license with an “F” on it, he was vulnerable to accusations of fraud, and he was concerned about the potential for harassment or even bias-driven violence.

Laws and policies regarding gender changes have traditionally posed difficult hurdles for transgender people. Many such policies were written decades ago, when the predominant understanding of gender reassignment was that every transgender person underwent a single “sex change operation”—genital surgery—and no transition could be complete without it. But this (mis)understanding has changed over the past 20 years as medical knowledge has advanced and as transgender people have become outspoken advocates for themselves. Transgender health experts now recognize that gender transition is an individualized process that can involve a variety of steps—sometimes involving surgery, but often not. In short, gender transition is anything but cookie-cutter. That updated understanding of gender transition is beginning to inform policy makers’ decisions.

That’s why, in 2009, the New Jersey Motor Vehicle Commission revised its policy for changing the sex designation on a driver’s license. The new policy simply requires a statement from a health care provider that the license holder’s gender identity is male or female “and can reasonably be expected to continue as such for the foreseeable future.” After the new policy took effect, Mark was able to change the sex designation on his driver’s license to “M” and is no longer worried about showing his license if he gets pulled over.

At this time, it is still typical in most of the country for administrative agencies and other entities to require a transgender person to have surgery before the new gender is recognized. But changes in policies, such as the one New Jersey adopted (itself coming on the heels of a similar move by the Massachusetts Registry of Motor Vehicles), are more common than they used to be. This shift is consistent with a broader trend toward respecting transgender people’s identity. Increasingly, anatomy is not the final word.

Evidence of this shift can be found in a variety of contexts. For example, in June 2009 the National Prison Rape Elimination Commission (NPREC) released standards for combating prison sexual violence. The standards recognize that transgender prisoners are particularly vulnerable to abuse. Currently, most prisons house transgender inmates according to their genitals—in other words, transgender women with penises are housed with male inmates, regardless of their identity, transition status, and other risk factors. The NPREC’s standards deem this approach unworkable and urge agencies “to give careful thought and consideration to the placement of each transgender inmate and not to automatically place transgender individuals in male or female housing based on their birth gender or current genital status” (for more, see www.nprec.us).

Evolving understanding of transgender lives and identities is playing out in the employment law context as well. Since 2001, 12 states and dozens of cities and counties have enacted laws banning employment discrimination on the basis of gender identity. In 2009 a federal employment non-discrimination act that would prohibit gender identity and sexual orientation discrimination in the workplace was introduced in both houses of Congress. Even in the absence of explicit gender identity provisions, a number of courts have held that federal and state sex discrimination laws that prohibit sex stereotyping also protect transgender workers.

But workplaces are not always gender neutral. For example, courts permit employers to establish different dress and grooming codes for men and women provided that the code doesn’t impose an unequal burden on one sex or the other. In other words, a policy that requires women to wear miniskirts, halter tops, and high heels but permits men to wear slacks of their choice would not pass muster. On the other hand, in 2006 the Ninth Circuit upheld Harrah Casino’s grooming code requiring female employees to wear a particular makeup regimen each day. The court noted the lack of evidence that Harrah’s policy “would objectively inhibit a woman’s ability to do the job” ( Jespersen v. Harrah’s Operating Co., 444 F.3d 1104, 1112 (9th Cir. 2006)).

But where do transgender employees fit? In 2009 an Indiana federal court held that a convenience store had the right to fire Amber Creed, a transgender woman, because her hair was slightly longer than the length permitted by the dress code for male employees ( Creed v. Family Express, 2009 WL 35237 (N.D. Ind. 2009)). That decision is unlikely to be the last word on how dress codes apply to transgender employees.

Like dress codes, restrooms also segregate by sex. People opposed to gender identity protections in the workplace and beyond have raised questions about rest­room access. If transgender people are permitted to use the rest­room consistent with their identity, they ask, how will we stop the male predator who falsely claims to be a woman in order to enter the women’s restroom?

Of course, signs on restroom doors are not talismans that deter criminals who are bent on causing harm—that’s what our criminal laws are for. And in the 100-plus jurisdictions that have enacted gender identity protections, there has been no outbreak of restroom violence committed by faux transgender people. But these arguments about rest­room access highlight a fundamental cultural anxiety: If anatomy is not the factor that determines gender, how will we know who is truly a man or a woman? In short: How will we know who is “real”?

Concerns about “realness” have a palpable effect on legal approaches to transgender issues. In 2009 a transgender man in New York filed a name-change petition, seeking to change his first name from Leah to Olin. Although Olin complied with all legal requirements and swore that he did not seek the name change for fraudulent purposes, Judge Manuel Mendez ordered him to bring in a letter from a doctor or psychologist confirming the need for the name change. Olin later learned that Judge Mendez routinely required transgender name change petitioners—and only transgender name change petitioners—to supply medical evidence. In May 2009 Olin appealed Judge Mendez’s denial, arguing that the additional evidentiary burden was unauthorized by statute and raised constitutional concerns. In October 2009 the Appellate Term of the New York Supreme Court ruled in Olin’s favor, holding that “[t]here is no sound basis in law or policy to engraft upon the statutory provisions an additional requirement that a transgender petitioner present medical substantiation for the desired name change.” Judge Mendez has been reassigned.

Lawyers sometimes use fears about transgender people’s “realness” and authenticity in strategic ways. In 2002 Gwen Araujo, a 17-year-old transgender woman, was beaten and killed in Newark, California. Her killers asserted a “trans panic” defense at trial—in other words, they claimed that they were so perturbed to learn that Gwen was “really a man” that their criminal culpability for her death was lessened. In 2005 the jury rejected the “trans panic” defense and convicted two of the defendants of second-degree murder.

Legal manifestations of this anxiety about “realness” can be traced back to the anti-cross-dressing laws that once were common in the United States. Lawmakers first enacted these laws in the mid-nineteenth century, and they were routinely enforced across the country. For example, a Columbus, Ohio, ordinance prohibited people from appearing in public “in a dress not belonging to his or her sex.” Early challengers of these ordinances argued that they violated transgender people’s constitutional rights to free expression and privacy, but courts brushed off such concerns. It wasn’t until changing styles of the 1960s and 1970s—the rise of unisex clothing—put non-transgender people at risk of violating the laws that courts began to overturn them on vagueness grounds. “[T]he propriety of criminalizing cross-dressing in view of contemporary clothing and hair styles common to both sexes is debatable,” an Ohio court wrote in 1974 ( City of Cincinnati v. Adams, 330 N.E.2d 463 (Ohio. Mun. Ct. 1974)).

Although cultural anxieties about ascertaining gender persist, legal principles of dignity and respect for the expression of identity increasingly overshadow them. The Supreme Court overturned sodomy laws owing in part to their harmful effect on the dignity of gays and lesbians in 2003’s Lawrence v. Texas decision. Similarly, lower courts increasingly recognize that restrictions on the expression of a person’s gender identity amount to an impermissible “heckler’s veto” that tramples an essential aspect of personhood. This legal evolution is informed by the modern understanding that gender identity is the most salient factor in determining gender (as illustrated by New Jersey’s new driver’s license policy and others like it).

Judicial respect for transgender identity is evident in a June 2009 ruling by the Northern District of Georgia. An attorney who worked for the Georgia legislature fired Vandy Beth Glenn (formerly Glenn Morrison), an editor, after she disclosed that she had a female gender identity and planned to come to work as a woman. The attorney told Vandy Beth that she would be seen as “immoral” and would make co-workers uncomfortable. Lambda Legal filed suit on her behalf, claiming that her termination violated the U.S. Constitution’s equal protection clause. In denying the defendants’ motion to dismiss, the court noted that they “do not claim that Glenn’s transition would have rendered her unable to do her job. . . . Anticipated reactions of others are not a sufficient basis for discrimination” ( Glenn v. Brumby et al., 335 Fed. Appx. 335, 106 Fair Empl.Prac.Cas. (BNA) 1355 (N.D.Ga. 2009)).

Challenges persist, but there is a clear movement toward the recognition, in law and policy, that gender identity is a fundamental personal characteristic that must be recognized and respected. We’ve come a long way since courts only overturned anti-cross-dressing laws because of their effect on non-transgender people. Transgender lives are no longer just a footnote in the law books, their identities no longer uniformly bound to surgical requirements. As principles of dignity and equality move into the forefront of legal thinking, transgender people are not an afterthought anymore.

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