Transgender Rights

From Obama to Trump

Susan Gluck Mezey

• Publisher: Routledge
• Year: 2019
• eBook ISBN: 9781351120845
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

This book examines the transgender community's struggle for equality over the last decade, comparing the Obama and Trump administrations' stance on transgender rights policies. Transgender rights claims have assumed an important place on the nation's policymaking agenda as society has increasingly become aware that transgender individuals are subject to discrimination because they do not conform to the norms of the gender identity they were assigned at birth. With Congress virtually absent from the policymaking process, the executive branch and the federal courts have been chiefly responsible for determining the parameters of transgender rights policies.

The study contrasts the Obama administration's efforts to expand equal rights for the transgender community, especially in employment, education, and military service, with the Trump administration's determination to rescind the Obama-era initiatives. In their efforts to do so, Trump administration officials have urged the courts to reverse decisions extending the benefit of civil rights laws and constitutional guarantees to the transgender community, arguing that gender identity is outside the scope of these protections. Although most federal courts have been inclined to accept the Obama administration's perspective on transgender rights, ultimately, this will be a matter for the U.S. Supreme Court to decide.

The book is appropriate for students, scholars, and interested general readers.

1 The Transgender Experience

As late as 2016, scholars argued that “policymakers, researchers, advocates, and service providers need more and better data related to the experiences and needs of the LGBT population” (Baker and Hughes 2016, 1). Over the last decade, transgender rights policymaking assumed a greater role on the nation’s political agenda as Americans became more cognizant of the legal, social, and economic constraints on thse lives of transgender people—a group broadly defined as individuals whose gender identity is inconsistent with the gender they were assigned at birth. Notwithstanding the growing awareness of transgender rights claims, there remains a scarcity of information on issues affecting the gender nonconforming or transgender population, including more precise definitions of the terms used in discussing members of this community.¹

Gender nonconformity broadly applies to those “whose gender expression or gender identity differs from gender norms associated with their assigned birth sex” (American Psychological Association 2015b, 862). More precisely, “transgender is an umbrella term for persons whose gender identity, gender expression or behavior does not conform to that typically associated with the sex to which they were assigned at birth. Gender identity refers to a person’s internal sense of being male, female or something else; gender expression refers to the way a person communicates gender identity to others through behavior, clothing, hairstyles, voice or body characteristics” (American Psychological Association 2018).

Gender nonconformity has existed as far back as ancient times in both eastern and western cultures (American Psychological Association 2015a). While the term “transgender” did not come into popular use until the latter part of the 20th century, there were reports of gender nonconforming individuals in the United States as far back as the Civil War era.²

Recognizing Gender Nonconformity

For a variety of reasons, hundreds of women dressed as men and served in the Armed Forces during the Civil War, with most returning to live as women after the war. Albert Cashier, born in Ireland as Jennie Hodgers, began living as a man before the war and enlisted in the Union Army in 1862; when the war ended, he continued to live as a man. A documentary about his life, The Transgender Man Who Fought in the Civil War: The Amazing Life and Tragic End of Albert Cashier, aired in 2016 (The Daily Beast, September 24, 2017; The Guardian, August 22, 2017; see Washington Post, July 26, 2017; Los Angeles Times, July 30, 2017).

Almost one hundred years later, in 1952, Christine Jorgenson’s sex reassignment surgery in Denmark helped raise the nation’s collective awareness of the real-life existence of transgender people. That year, Christine Jorgensen, born George Jorgensen, Jr., on May 30, 1926, became the first American known to undergo sex reassignment surgery.³ “While not the first transgender person to undergo sex reassignment surgery, nor the first American transgender, Christine was undoubtedly the first person to become widely known for having sex reassignment surgery” (Mashable 2015).⁴ She achieved celebrity status when she appeared on the front page of the New York Daily News on December 1, 1952, with a headline reading “Ex-GI Becomes Blond Beauty” (Mashable, April 24, 2015; see Drescher, Cohen-Kettenis, and Winter 2012).

Another forty years passed before the American Psychiatric Association introduced the diagnosis of gender identity disorder in the 1994 Diagnostic and Statistical Manual of Mental Disorders (DSM); the 1994 DSM-3 was viewed as a breakthrough for the transgender community. In 1968, transgender identity had been categorized as a sexual deviation, and in 1980, it had been classified as a psychosexual disorder (see Drescher, Cohen-Kettenis, and Winter 2012).

More recently, in an effort to remove the stigma associated with gender identity disorder, the 2013 DSM-5 renamed the condition gender dysphoria. As defined by the American Psychiatric Association, “gender dysphoria involves a conflict between a person’s physical or assigned gender and the gender with which he/she/they identify. People with gender dysphoria may be very uncomfortable with the gender they were assigned [at birth] … or uncomfortable with the expected roles of their assigned gender” (American Psychiatric Association 2018). The 2013 revision had “recognized that a mismatch between one’s birth gender and identity was not necessarily pathological” (Russo 2017; see the American Psychological Association 2015a; American Psychiatric Association 2013).⁵

A controversy had arisen over the advisability of retaining medical/psychiatric terms in the DSM-5, reflecting an ongoing debate among scholars, practitioners, and advocates to arrive at “a balance between concerns related to the stigmatization of mental disorders and the need for diagnostic categories that facilitate access to healthcare” (Drescher, Cohen-Kettenis, and Winter 2012, 575). Some transgender rights advocates believe that classifying gender nonconformity as a disorder stigmatizes the transgender population. In their view, relying on a medical model labels transgender identity as an illness and transmits negative images about transgender individuals (see Peek 2004; Barry and Levi 2017). Others disagree, contending that abandoning the medical health framework will limit access to treatment (Bendlin 2013; Lee 2008). They concede it would be beneficial to erase the image of transgender identity as a disorder, yet argue it would be self-defeating to eradicate the medical terminology that facilitates access to medical care—and insurance coverage—for medically necessary hormone therapy or surgery (Russo 2017; Drescher, Cohen-Kettenis, and Winter 2012).

A workgroup, assigned to resolve the question of whether it was preferable to remove the reference to a disorder in the DSM and thereby lessen the stigma associated with transgender status, decided that eliminating “the diagnosis could be quite problematic because in order to access services, you need a diagnosis.” One member explained the group was “caught between access to care and the stigma associated with a psychiatric diagnosis, [but in the end, decided that] stigma is not reason enough to remove a mental disorder diagnosis if one needs one.” The group compromised by retaining the condition within the DSM and attempting to minimize the stigma by substituting gender dysphoria for gender identity disorder (Drescher 2017).

In 1966, Dr. Harry Benjamin’s book, entitled The Transsexual Phenomenon, helped introduce the terms “transgender” and “transsexual” to the public. Benjamin’s interest in the topic began in 1948 when he treated a transitioning anatomical boy with hormone therapy. He later referred the child to physicians who were knowledgeable about performing the type of surgery Jorgensen had undergone. An endocrinologist, Benjamin eventually treated hundreds of others who sought to transition to their preferred gender identity (Transgender Universe 2015).

In honor of Benjamin’s work, the Harry Benjamin International Gender Dysphoria Association was formed in 1979, later renamed the World Professional Association for Transgender Health (WPATH), to “establish the standards of care for transgender treatment that are followed today” (Transgender Universe 2015). Today, the WPATH standard, offering “clinical guidelines for health care of transsexual, transgender and gender non-conforming persons in order to maximize health and well-being by revealing gender dysphoria,” is internationally recognized as the gold standard in transgender care (Rezabek 2014).⁶

In 2008, more than a decade after WPATH was established, the American Medical Association (AMA) made an important contribution to advancing the health care needs of the transgender community by approving two resolutions to recognize the legitimacy and effectiveness of transition therapy, including surgery, for persons with gender identity disorder (the DSM-3 definition in use in 2008) and support public and private insurance coverage for such treatment (American Medical Association House of Delegates 2008; see American Psychiatric Association 2013).⁷ In accepting the resolutions, the AMA delegates cleared a path to cover medical costs for transgender individuals, either through Medicaid, Medicare, or private insurers (Bilerico Project 2008).

Another advance in the acceptance of gender nonconformity occurred more recently, on January 1, 2017, when the Danish Parliament voted to make Denmark the first country to “destigmatize transgender individuals [by] separating them from any association with words such as ‘problem,’ ‘disorder,’ or ‘dysphoria’ ” (Russo 2017).

In an effort to propel the World Health Organization (WHO) into action, Denmark had announced in 2016 that it would do so unilaterally if the WHO did not remove transgender as a mental illness in its next publication of the International Statistical Classification of Diseases and Related Health Problems (ICD). When the WHO had not removed the language by January 2017, the Danish Parliament acted on its own (Russo 2017).

The controversy over the terminology continued, with some still contending the decision to remove the medical diagnosis would harm transgender people who sought access to surgery or hormone therapy, with others believing it would benefit transgender persons by eliminating its psychiatric component. The ICD-11, released in June 2018, coined the phrase “gender incongruence” to remove it from the category of mental disorders, placing it in a section called “Conditions Related to Mental Health.” There were still objections to keeping it within the volume, but the prevailing view was that this is a reasonable compromise to lessen the stigma of transgender identity as a mental disorder, while retaining a “diagnosis code” to allow transgender people access to psychological or medical care within their country’s health care system (see Russo 2017; Drescher 2017).

Transgender Identity in the United States

As transgender people became more visible, they began to achieve modest success in their struggle for equality in the United States. In 1975, Minneapolis provided a model for the rest of the nation by banning discrimination based on “having or projecting a self-image not associated with one’s biological maleness or one’s biological femaleness” in its human rights ordinance. A year earlier, it had included sexual orientation as a protected class within the ordinance (The Column 2014; see Currah and Minter 2000).

The New York Supreme Court’s (the state’s trial court) decision in Richards v. U.S. Tennis Association (1977) was the first legal ruling to take an expansive view of transgender rights.⁸ The plaintiff, Renee Richards—born Richard Raskind—had transitioned to a female with hormone therapy, followed by surgery in 1975, at which time she changed her name. As a result, she declared, “for all intents and purposes, I became a female, psychologically, socially and physically.”

As Raskind, the Queens, New York ophthalmologist was a top-ranked tennis player. In 1976, Richards sought to compete in a professional tournament as a woman. When the U.S. Tennis Association (USTA) learned she had been born an anatomical male, it adopted a policy of administering genetic screening tests to women athletes. Richards initially refused to take the test, then agreed to do so. The results were inconclusive. After she declined to re-take it, the USTA barred her from playing in the prestigious U.S. Open Tennis Tournament that year. She filed suit, charging the organization with violating the state human rights law as well as the Fourteenth Amendment of the U.S. Constitution.

In an opinion that showed a rare understanding for the times of the plaintiff’s transgender status, Judge Alfred Ascione said the medical evidence and expert testimony persuaded him that with the surgery and hormone treatments, Richards was now female and should be allowed in the tournament as a woman. He concluded, “when an individual such as plaintiff, a successful physician, a husband and father, finds it necessary for his own mental sanity to undergo a sex reassignment, the unfounded fears and misconceptions of defendants must give way to the overwhelming medical evidence that this person is now female” (Richards v. U.S. Tennis Association 1977, 721; see New York Times, February 1, 2017; Tignor 2017).⁹

In 2002, the transgender community achieved greater visibility with the launch of the TLC, a legal reform group dedicated to furthering transgender legal rights. Headquartered in San Francisco, it is dedicated to “keep[ing] transgender and gender conforming people alive, thriving, and fighting for liberation” (Transgender Law Center n.d.). Since then, the first transgender march took place in San Francisco; transgender people were elected to public office and appointed at all levels of government; a number of states and municipalities facilitated access to revised identity documents to reflect gender identity; sports figures identified themselves as transgender; DOJ and DOE, as well as the Equal Employment Opportunity Commission (EEOC), applied federal civil rights laws to discrimination based on gender identity; a number of state and local governments included gender identity within their antidiscrimination laws and added gender identity to their hate crime statutes; a transgender television star was nominated for an Emmy award; a television series with a transgender family member won a Golden Globe award; and the Girl Scouts announced they welcomed all children who identify as girls, no matter what their anatomical status was at birth.

Perhaps the most notable events occurred in 2014 and 2015, when the country became fixated on two transgender women—Chelsea Manning and Caitlyn Jenner—who captured society’s interest in much the same way Jorgensen had over fifty years earlier.

In 2014, after Private First Class Bradley Manning began to serve a thirty-five-year sentence at Fort Leavenworth, Kansas (a men’s prison), for leaking classified military documents, she announced she was a transgender woman and sued for recognition of her new status by prison authorities. The government agreed to some of her demands, among other things, permitting her to change her name to Chelsea Elizabeth Manning (Christian Science Monitor, February 14, 2015; The Guardian, March 5, 2015; BuzzFeed News, September 13, 2016; see Hill 2015). Believed to be a traitor by many for releasing secret government documents, Manning was not generally viewed as a sympathetic figure.¹⁰

In 2015, the popular athlete Bruce Jenner, a television personality and 1976 Olympic gold medalist, appeared on national television and announced that he had transitioned to a woman (Variety, April 24, 2015).¹¹ Her subsequent appearance as Caitlyn Marie Jenner on the cover of Vanity Fair caught the nation’s attention and provoked interest in her as a woman (see Bissinger 2015). ¹² At the end of the year, she was on the shor...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Contents
• Preface
• Acknowledgments
• Introduction
• 1 The Transgender Experience
• 2 Transgender Rights in the Workplace
• 3 Transgender Rights in School
• 4 Transgender Rights in Public Facilities
• 5 Transgender Rights in the Armed Services
• Conclusion
• References
• Index of Cases
• Index