Trans Rights: Laws Enabling Gender Identity And Expression

The legal status of transgender people varies across the world, with some countries enacting laws to protect their rights, while others criminalise their gender identity or expression. In the United States, there is no federal law that designates transgender as a protected class, but there are federal, state, and local laws that prohibit discrimination based on gender identity or expression.

In 2020, the Supreme Court ruled that Title VII of the Civil Rights Act of 1964, which prevents discrimination on the basis of sex, also extends employment protections to transgender people. This means that transgender employees are now nationally protected from employment discrimination.

In addition, the Supreme Court's decision in Obergefell v. Hodges established that transgender people have the right to marry regardless of whether their partners are legally considered to be of the same sex or not.

However, there is no federal law that bans discrimination based on sexual orientation or gender identity in public accommodations, and transgender people continue to face discrimination in various areas of life, including employment, housing, healthcare, and sports participation.

To address these issues, several pieces of legislation have been proposed, such as the Equality Act and the Transgender Bill of Rights, which aim to prohibit discrimination on the basis of gender identity in various areas, including employment, housing, education, and healthcare.

Marriage and parenting rights

In the US, the Supreme Court's decision in Obergefell v. Hodges established that equal protection requires all jurisdictions to recognize same-sex marriages, giving transgender people the right to marry regardless of whether their partners are legally considered to be the same sex or opposite sex. This means that a person's sex, whether assigned at birth or recognized following transitioning, cannot be used to determine their eligibility to marry.

However, transgender people who have children or come out as transgender after having children may face legal challenges to their parental rights. An ex-spouse or partner may use the parent's gender identity as a basis to challenge, restrict, or deny child custody or visitation. While the Supreme Court's legalization of same-sex marriages has ameliorated some of these challenges for transgender parents who are married, obstacles remain for those who are unmarried or in domestic partnerships. Judges often lack a good understanding of gender identity issues and inconsistent case law to draw upon for guidance.

To protect their parental rights, transgender people may consider obtaining an adoption or parentage judgment. All states are required by the Full Faith and Credit Clause of the federal Constitution to recognize court orders, such as adoptions and parentage judgments, which means that these orders should be recognized in every state, even if that state's own laws would not permit the same orders.

In other parts of the world, the legal status of transgender people's marriage and parenting rights varies widely. Here are some examples:

• In Botswana, the High Court ruled in 2017 that the refusal of the Registrar of National Registration to change a transgender man's gender marker violated his constitutional rights, including his right to dignity and privacy.
• In India, the Supreme Court declared in 2014 that transgender people constitute a 'third gender' in Indian law, protecting them against discrimination in education, employment, and healthcare.
• In Pakistan, the Supreme Court ruled in 2009 that transgender people, as citizens, are entitled to equal benefit and protection of the law and called upon the government to take steps to protect them from discrimination and harassment.
• In Taiwan, transgender people need to undergo genital surgery to register a gender change on their identity card and birth certificate. This surgery is not covered by the National Health Insurance and requires approval from two psychiatrists.
• In the United Kingdom, several countries, including England, Scotland, and Wales, recognize the right of transgender people to marry in accordance with their post-operative sex.
• In Finland, a law was passed in 2023 that allows individuals to change their legal gender based on self-identification, removing the previous requirement for sterilization.
• In Germany, a self-identification law was passed in 2024, making it easier for individuals to legally change their gender on documents.
• In Greece, the Parliament passed a bill in 2017 that grants transgender people the right to change their legal gender freely, abolishing any conditions or requirements for medical interventions, sex reassignment surgeries, or sterilization procedures.
• In Australia, all jurisdictions now recognize the affirmed sex of an individual, with varying requirements, and passports are issued in the preferred gender without requiring a change to birth certificates or citizenship certificates.

Overall, while there have been advancements in marriage and parenting rights for transgender people globally, the legal landscape varies widely, and many jurisdictions still lack comprehensive protections for these rights.

Healthcare access

Transgender people face significant discrimination in healthcare, with many countries criminalising their gender identity or expression. Healthcare for transgender individuals varies widely across the world, with some countries offering constitutional protection against discrimination based on gender identity.

In the United States, transgender people have historically been discriminated against in the healthcare system, with transgender individuals being discharged from the military if they transitioned. In 2015, the Obama Administration removed this ban, allowing transgender people to serve openly. However, in 2017, the Trump Administration severely degraded the rights of transgender individuals in the military, banning them from military service unless they enlisted under the gender they were assigned at birth.

In 2010, the Obama Administration explicitly banned gender identity-based discrimination on the federal jobs website, and in 2014, President Obama signed an Executive Order adding "gender identity" to the categories protected against discrimination in hiring in the federal civilian workforce.

Despite these progressive steps, several states, including Alabama, Arizona, Missouri, Texas, and Louisiana, have enacted laws that restrict or outright ban gender-affirming care for transgender minors. These bans typically prevent access to puberty blockers, hormone therapy, and in some cases, gender-affirming surgery for individuals under 18.

In 2020, the Supreme Court held that Title VII's employment protections extend to transgender individuals, preventing employers with 15 or more employees from discriminating on the basis of sex.

In 2019, the Pakistani government passed the Transgender Persons (Protection of Rights) Act, which established the legal right of transgender people in Pakistan to identify themselves as such and instituted anti-discrimination laws. These include recognition of transgender identity in legal documents such as passports, identity cards, and driver's licenses, along with prohibiting discrimination in employment, schools, workplaces, public transit, and healthcare.

In 2014, the Supreme Court of India declared transgender to be a 'third gender' in Indian law, and in 2015, Malta passed the 'Gender Identity, Gender Expression, and Sex Characteristics Act', which states that all citizens of Malta have the right to the recognition of their gender identity and the free development of their person according to their gender identity.

In 2016, the Greek Parliament passed the Legal Gender Recognition Bill, which grants transgender people in Greece the right to change their legal gender freely by abolishing any conditions and requirements, such as undergoing medical interventions, sex reassignment surgeries, or sterilisation procedures to have their gender legally recognised on their IDs.

In 2012, the Argentine Congress passed the Ley de Género (Gender Law), which allows individuals over 18 to change the gender marker in their DNI (national ID) based on a written declaration only.

Barriers to Healthcare Access

Transgender people often face barriers to accessing healthcare, with a 2014 report by the Department of Justice finding that 28% of transgender people reported being harassed in medical settings, 19% reported being refused care, 2% reported being physically attacked in a doctor's office, 10% reported being sexually assaulted in one, 9% had been involuntarily committed, and 3% subjected to unwanted medical procedures.

Transgender individuals also face difficulties in obtaining insurance coverage for their medical needs, with public and private insurance companies denying coverage for gender-affirming treatments. However, courts have repeatedly ruled that these treatments may be medically necessary and have recognised gender dysphoria as a legitimate medical condition.

While there have been positive steps towards protecting the rights of transgender individuals, particularly in the United States, there is still a long way to go to ensure that transgender people have equal access to healthcare and are not discriminated against based on their gender identity.

Employment rights

In the United States, the rights of transgender people vary by jurisdiction, and while there has been an expansion of federal, state, and local laws and rulings to protect transgender Americans, many rights remain unprotected.

Transgender employees are nationally protected from employment discrimination following a 2020 ruling by the Supreme Court, which held that Title VII protections against sex discrimination in employment extend to transgender employees.

Right to Equal Treatment and Opportunity

Transgender people have the right to equal treatment and opportunity in employment, regardless of their gender identity or expression. This includes protection from discrimination in hiring, promotion, compensation, and termination. It is illegal to fire, refuse to hire, harass, or otherwise discriminate against an employee because of their gender identity, gender transition, sex assigned at birth, or transgender status.

Right to Safe and Equal Access to Facilities

Transgender employees have the right to safe and equal access to restrooms and other facilities consistent with their gender identity. Employers cannot deny access to facilities that match an employee's gender identity or require medical or legal documentation as a condition of restroom access. Employers also cannot limit employees to using a specific restroom separate from other employees.

Right to Privacy and Self-Expression

Transgender employees have the right to privacy regarding their transgender status or gender identity. Employers cannot forbid employees from disclosing their transgender status or fire them for coming out. Employers also cannot arbitrarily disclose an employee's transgender status without their consent. Additionally, transgender employees have the right to self-expression, including the use of their preferred names and pronouns. Repeated and intentional misuse of an employee's preferred name and pronouns can constitute harassment.

Right to Protection from Harassment and Hostile Work Environment

Transgender employees have the right to a safe and respectful work environment, free from harassment and hostile conduct based on their gender identity. This includes protection from derogatory comments, jokes, or invasive personal questions. Employers are responsible for taking steps to stop harassment and preventing its recurrence.

Right to File Complaints and Seek Redress

Transgender employees have the right to file complaints and seek redress if they believe their rights have been violated. They can try to resolve issues internally within the company or file a charge of sex discrimination with the U.S. Equal Employment Opportunity Commission (EEOC) or a state or local civil rights agency. It is unlawful for an employer to retaliate against an employee for filing a complaint or participating in an investigation.

It is important to note that these rights may vary depending on the specific laws and policies in different states and localities. While there has been progress in protecting the rights of transgender employees, there is still work to be done to ensure equal treatment and opportunity for all.

Housing rights

Despite these protections, transgender people in the US still face housing discrimination and insecurity. According to a 2015 survey, an estimated 30% of transgender people have experienced homelessness at some point in their lives, and this number increased by 88% between 2016 and 2019. One in five transgender individuals in the US has been discriminated against when seeking a home, and one in ten has been evicted due to their gender identity. Transgender people also face challenges when it comes to legal documentation, as some states require proof of gender-affirming surgery to change their gender marker on birth certificates and other identification documents.

In other parts of the world, the legal status of transgender people and their housing rights vary significantly. Some countries, such as India, Pakistan, and Argentina, have passed laws that protect the rights of transgender individuals and allow them to change their legal gender and name on official documents. On the other hand, some countries criminalize gender identity or expression, and transgender individuals may face discrimination and violence. Overall, the fight for transgender housing rights remains an ongoing battle, with organizations like the ACLU working to ensure that transgender people know their rights and are treated fairly in housing matters.

Education rights

In the United States, the rights of transgender people vary by jurisdiction, and there has been a recent increase in the number of anti-transgender bills introduced each year, particularly in Republican-led states. Despite this, there has also been an expansion of federal, state, and local laws and rulings to protect transgender Americans.

Federal Law

The U.S. Department of Education's Office for Civil Rights (OCR) enforces civil rights laws to protect students from unlawful discrimination and harassment based on race, colour, national origin, sex, disability, and age. This includes students who are transgender. Federal law requires schools to ensure that transgender students have equal access to all aspects of a school's programs and activities.

The OCR investigates allegations of discrimination based on sexual orientation or gender identity. Students can file a complaint with the OCR if they believe they have faced discrimination at school for these reasons.

The OCR's Toolkit: Creating Inclusive and Nondiscriminatory School Environments for LGBTQI+ Students includes information on supporting LGBTQI+ youth and families in schools, as well as student-led groups to support LGBTQI+ students and allies.

The OCR's 2024 Final Rule Amending the Title IX Regulations advances the promise of ensuring that no person experiences sex discrimination, including sex-based harassment or sexual violence, in federally funded education. The Final Rule also promotes accountability by requiring schools to take prompt and effective action when notified of conduct that may constitute sex discrimination.

State and Local Laws

Some states and cities have laws that ban discrimination based on gender identity or expression in public accommodations, such as restaurants, theatres, and other businesses.

In some places, such as Colorado, Iowa, Oregon, and Washington, and cities like San Francisco and New York City, transgender people are specifically granted the right to use gender identity-appropriate restrooms in public spaces.

In other places, like Chicago, businesses can decide whether a transgender patron may access men's or women's restrooms based on the gender on their ID. Some cities, like Austin, Texas, New York City, Philadelphia, and West Hollywood, require that single-stall public restrooms be labelled as all-gender.

Court Rulings

Federal courts have held that Title IX requires public schools to respond to harassment based on appearance or behaviour that doesn't conform to gender stereotypes, such as boys wearing makeup or girls wearing pants.

While the law in this area is evolving, a growing number of courts have found that Title IX and the Constitution protect transgender students' right to access sex-separated programs and facilities consistent with their gender identity.

Recommendations

If you believe your rights have been violated, it is important to document everything. Take notes and keep copies of any emails with school administrators, relevant school forms, etc.

If anyone at school is harassing or threatening you, it is crucial to report every incident to a principal or counsellor. Usually, schools must be put on notice before they can be held legally responsible for protecting you.

If you have reported harassment or any other kind of discrimination to your school officials, and they have done little or nothing to stop it, you can contact your local ACLU affiliate or the national ACLU LGBTQ & HIV Project for help weighing your options.

Frequently asked questions