Transgender Rights: A Historical Battle For Equality

The legal and regulatory history of transgender rights in the United States began in the 1960s, with the first legal cases concerning LGBT issues being raised. These initial cases often revolved around the ability to change names or sex on legal documents and sought protection against various forms of discrimination—such as in employment, civil rights violations, and equal protection under the law.

In 1966, the first case to consider transsexualism in the US was heard, Mtr. of Anonymous v. Weiner, which concerned a transsexual person who had undergone sex reassignment surgery and wanted a change of name and sex on their birth certificate. The New York City Health Department refused to grant the request, and the court ruled that the New York City and New Jersey Health Code only permitted a change of sex on the birth certificate if an error was made recording it at birth.

In the following years, there were scattered positive developments, such as Minneapolis becoming the first US city to pass trans-inclusive civil rights protection legislation in 1975, and Renée Richards, a transsexual woman, being granted entry to the US Open (tennis) in 1977 after a ruling in her favor.

However, transgender people continued to face discrimination and violence, with notable cases including the rape and murder of Brandon Teena in Nebraska in 1993, and the death of Tyra Hunter, a transgender woman, in 1995 after being denied medical care by ER staff due to her gender identity.

In recent decades, there has been an expansion of federal, state, and local laws and rulings to protect transgender Americans. Notably, in 2020, the Supreme Court held that Title VII's employment protections extend to transgender individuals. However, many rights remain unprotected, and some rights are being eroded, with a steady increase in the number of anti-transgender bills introduced each year, especially in Republican-led states.

Transgender people's rights to use restrooms that match their gender identity

Transgender peoples' rights to use restrooms that match their gender identity

The rights of transgender people in the United States have expanded in recent decades, with an increase in federal, state, and local laws and rulings to protect transgender Americans; however, many rights remain unprotected, and some are being eroded.

History

The legal and regulatory history of transgender rights in the US begins in the 1960s, with legal cases concerning LGBT issues first being raised. These initial cases often revolved around the ability to change names or sex on legal documents and sought protection against various forms of discrimination.

In 1966, the first case to consider transsexualism in the US was heard, concerning a transsexual person from New York City who had undergone sex reassignment surgery and wanted a change of name and sex on their birth certificate. The New York City Health Department refused to grant the request, and the court ruled that the New York City and New Jersey Health Code only permitted a change of sex on the birth certificate if an error was made recording it at birth.

In 1971, Paula Grossman, a junior high music teacher in Bernardsville, New Jersey, was fired from her position of 14 years after openly transitioning and announcing her identity as a woman. She appealed to the U.S. Supreme Court, which in 1976 refused to hear the case.

Current laws

In recent years, there has been a national movement by conservative/right-wing politicians and organizations to target transgender rights, with a steady increase in the number of anti-transgender bills introduced each year, especially in Republican-led states.

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

The right to use restrooms that match one's gender identity has been recognized in the workplace and is actively being asserted in public accommodations. In Iowa, for example, discrimination in public accommodations on the basis of sexual orientation and gender identity has been prohibited by law since 2007 through the Iowa Civil Rights Act.

In 2024, the U.S. House of Representatives is considering the "Parental Rights Over The Education and Care of Their Kids Act" (PROTECT Kids Act), which would require "parental consent" for students up to Grade 8 to change their "gender markers, pronouns, or preferred name on any school form" or "sex-based accommodations, including locker rooms or bathrooms." Schools that ignore the requirement for parental consent would lose federal funding.

Court rulings

In Doe v. Regional School Unit, the Maine Supreme Court held that a transgender girl had a right to use the women's restroom at school because her psychological well-being and educational success depended on her transition. The school, in denying her access, had "treated [her] differently from other students solely because of her status as a transgender girl," and this was deemed a form of discrimination.

In Mathis v. Fountain-Fort Carson School District 8, Colorado's Division of Civil Rights found that denying a transgender girl access to the women's restroom at school was discrimination. They reasoned that "by not permitting the [student] to use the restroom with which she identifies, as non-transgender students are permitted to do, the [school] treated the [student] less favorably than other students seeking the same service."

Furthermore, the court rejected the school's defense that the discriminatory policy was implemented to protect the transgender student from harassment, observing that transgender students are safest when a school does not single them out as different. Based on this finding, it is no longer acceptable to institute different kinds of restroom rules for transgender and cisgender people.

In Cruzan v. Special School District #1, decided in 2002, a Minnesota federal appeals court ruled that it is not the job of the transgender person to accommodate the concerns of cisgender people who express discomfort with sharing a facility. Employers need to offer an alternative to the complaining employee in these situations, such as an individual restroom.

Challenges

Despite these legal protections, transgender people continue to face challenges and discrimination when attempting to use restrooms that match their gender identity.

Transgender people are often asked for legal identification when entering or using a gendered restroom, and recent legislation has moved in contradictory directions. On the one hand, non-discrimination laws have included restrooms as public accommodations, indicating a right to use gendered facilities that conform with a person's gender identity. On the other hand, some efforts have been made to insist that individuals use restrooms that match their biological sex, regardless of their gender identity or expression.

"Bathroom bills," which restrict the use of bathrooms by transgender people, have been passed in several states, including Alabama, Arkansas, Florida, Idaho, Iowa, Kansas, Kentucky, Mississippi, North Dakota, Oklahoma, Tennessee, and Utah. These bills force transgender people to use facilities that match their biological sex, rather than their gender identity.

Transgender people also face scrutiny and harassment from other restroom users, store owners, mall security, and employers when attempting to use restrooms that match their gender identity. This can lead to transgender people avoiding using public restrooms altogether, which can be unhealthy and compromise their privacy and health.

The rights of transgender people to use restrooms that match their gender identity remain a contentious issue in the United States, with legal protections and challenges varying across different states and jurisdictions. While some states have passed comprehensive non-discrimination laws that include restrooms, others have implemented restrictive "bathroom bills" that force transgender people to use facilities that do not align with their gender identity.

Advocacy and litigation continue to play a crucial role in advancing the rights of transgender people to use restrooms that match their gender identity, with organizations like Lambda Legal challenging discriminatory laws and policies.

Transgender people's rights to change their legal gender

The rights of transgender people vary considerably across the world. In the United States, there has been a recent expansion of federal, state, and local laws to protect transgender Americans. However, many rights remain unprotected, and some are being eroded by conservative politicians and organisations.

History

The legal and regulatory history of transgender rights in the US begins in the 1960s, with the first legal cases concerning LGBT issues being raised. These early cases often revolved around the ability to change names or sex on legal documents and sought protection against various forms of discrimination. Over time, these issues expanded to include a broader range of concerns, such as healthcare, marital rights, and military service conditions.

Current Situation

In the US, transgender people have the right to change their legal gender on official documents, such as birth certificates and driver's licenses, in most states. However, some states require proof of gender-affirming surgery or prohibit updating these fields altogether. Additionally, some states legally recognise non-binary citizens and offer a non-binary "X" marker on identification documents.

The process of changing one's legal gender can vary across states and may include requirements such as medical diagnoses, surgical procedures, or court orders. These requirements have been criticised as invasive and costly, infringing on individuals' rights to physical integrity and procreative freedom.

Future Prospects

While there have been advances in legal gender recognition for transgender people in the US, there is still work to be done to ensure equal rights and protection from discrimination. The ongoing national movement by conservative politicians and organisations to target transgender rights has resulted in a steady increase in anti-transgender bills being introduced each year, particularly in Republican-led states.

The fight for transgender rights, including the right to change one's legal gender, remains an ongoing battle in the US. While there have been important victories and increasing public support for transgender individuals, there are also forces seeking to restrict and roll back these hard-won rights. It is crucial that efforts to protect and expand transgender rights continue to ensure that all individuals are treated equally under the law.

Transgender people's rights to marry

The rights of transgender people in the United States vary considerably by jurisdiction. In recent decades, there has been an expansion of federal, state, and local laws and rulings to protect transgender Americans; however, many rights remain unprotected, and some rights are being eroded.

Transgender Marriage Rights

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 same-sex or opposite-sex. The ruling also meant that a person's sex, whether assigned at birth or recognized following transitioning, cannot be used to determine their eligibility to marry.

Prior to this ruling, the right of transgender people to marry was often subject to legal challenge—as was the status of their marriages after transitioning, particularly in cases where an individual's birth sex was interpreted to mean a same-sex marriage had taken place.

In 1959, Christine Jorgensen, a trans woman, was denied a marriage license by a clerk in New York City, on the basis that her birth certificate listed her as male; Jorgensen did not pursue the matter in court. Later that year, Charlotte McLeod, another trans woman who underwent gender-affirming surgery, married her husband Ralph H. Heidel in Miami. She did not mention her birth sex, however, or the fact she was still legally male.

In 1976, the New Jersey case M.T. v. J.T. held that trans people who had undergone gender-affirming surgery could marry as the legal sex matching their gender identity, the first ruling of its kind. Here, the court expressly considered the English Corbett v. Corbett decision but rejected its reasoning.

In the 1999 case Littleton v. Prange, Christie Lee Littleton, a post-operative female transsexual, argued to the Texas 4th Court of Appeals that her marriage to her deceased male husband was legally binding and she was entitled to his estate. The court decided that Littleton's gender corresponded to her chromosomes, which were XY (male). The court subsequently invalidated her revision to her birth certificate, as well as her Kentucky marriage license, ruling:

> "We hold, as a matter of law, that Christie Littleton is a male. As a male, Christie cannot be married to another male. Her marriage to Jonathon was invalid, and she cannot bring a cause of action as his surviving spouse."

Littleton appealed to the Supreme Court but it denied certiorari in 2000.

In the 2001 case In re Estate of Gardiner, the Kansas Appellate Court applied a different standard, concluding that:

> "A trial court must consider and decide whether an individual was male or female at the time the individual's marriage license was issued and the individual was married, not simply what the individual's chromosomes were or were not at the moment of birth. The court may use chromosome makeup as one factor, but not the exclusive factor, in arriving at a decision."

Gardiner ultimately lost her case in the Kansas Supreme Court, which declared her marriage invalid.

In 2002, transgender man Michael Kantaras made national news when he won primary custody of his children upon divorce; however, that case was reversed on appeal in 2004 by the Florida Supreme Court, upholding the claim that the marriage was null and void because Kantaras was still a woman and same-sex marriages were illegal in Florida. The couple settled the case with joint custody in 2005.

In 2005, the case re Jose Mauricio LOVO-Lara considered marriage under federal law, as it pertains to immigration. The Board of Immigration Appeals ruled that for purposes of an immigration visa:

> "A marriage between a postoperative transsexual and a person of the opposite sex may be the basis for benefits under ..., where the State in which the marriage occurred recognizes the change in sex of the postoperative transsexual and considers the marriage a valid heterosexual marriage."

Current Challenges

While the Supreme Court's ruling on marriage equality was a major victory for transgender people and their families, they continue to face many challenges, including barriers to recognition of parent-child relationships and other types of family relationships.

Some courts will continue to challenge certain parent-child relationships. Not all state or local officials provide a marriage license that reflects a person's gender identity. Many states only have marriage licenses and certificates with "bride" and "groom" language, which may not be relevant for all couples. Some officials may insist that a person's name and gender be registered according to what is listed on identity documents, even when the information is no longer accurate.

Lambda Legal strongly recommends that all non-biological parents secure an adoption or court judgment of parentage to protect their parental rights. Additionally, documenting intentions for a child through a will and other legal documents is especially important when a parent is transgender.

While transgender people now have the right to marry in the United States, they continue to face challenges and discrimination in many other areas of life, including employment, housing, public accommodations, education, and family law.

Transgender people's rights to access gender-affirming healthcare

The rights of transgender people in the United States vary considerably by jurisdiction. While there has been an expansion of federal, state, and local laws and rulings to protect transgender Americans in recent decades, many rights remain unprotected, and some rights are being eroded. Since 2020, there has been a national movement by conservative/right-wing politicians and organizations to target transgender rights.

The right to access gender-affirming healthcare is a highly contested issue in the United States. Gender-affirming care, sometimes referred to as transition-related care, is life-saving healthcare for transgender people of all ages. It includes a range of services such as mental health care, medical care, and social services.

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. Legal challenges against these bans are ongoing in multiple states.

At the federal level, the Obama administration took several steps to protect transgender individuals' access to gender-affirming healthcare. In 2014, the U.S. Office of Personnel Management announced an end to the ban on transition-related healthcare in Federal Employee Health Benefits plans (FEHB). In 2015, it was announced that insurance companies participating in the Federal Employees Health Benefits Program must include transition-related coverage. Also in 2016, new regulations were published stating that any healthcare provider or insurance company that receives federal funds must give transgender people equal treatment.

However, these gains have been threatened by subsequent administrations. In 2017, the Trump administration overturned the Obama administration's guidance on transgender bathroom and locker room policies in schools. More recently, in 2024, Florida banned changing the gender marker on driver's licenses and imposed civil and criminal penalties for "misrepresenting" one's gender.

Despite these challenges, some states have taken steps to protect transgender individuals' access to gender-affirming healthcare. For example, in 2012, the Department of Health and Human Services (HHS) announced that the Patient Protection and Affordable Care Act's ban on sex-based discrimination extends to claims of discrimination based on gender identity. In 2013, the Social Security Administration (SSA) removed its requirement that transgender people provide proof of gender reassignment surgery to amend their gender on a Social Security card.

The issue of transgender rights to gender-affirming healthcare remains highly contested, with conservative politicians and organizations continuing to target these rights.

Transgender people's rights to serve in the military

Transgender peoples' rights to serve in the military

Transgender people have served in the United States military throughout its history. However, until recently, they were banned from serving openly. From 1949 to 2016, transgender individuals were formally banned from serving and enlisting in the U.S. military. This ban was based on policies that broadly categorized gender non-conformity as incompatible with military service.

In the late 1990s, transgender military advocacy began to gain visibility through individual activists and grassroots organizations. During the 2000s, groups like the Transgender American Veterans Association and the Palm Center advanced the cause with research and advocacy efforts. Since November 2013, transgender individuals have been openly serving in the U.S. military, with Sage Fox becoming the first openly transgender individual to serve.

In 2015, United States Secretary of Defense Ash Carter announced the process of lifting the ban on transgender service members in the U.S. military. From 2016 to 2018, transgender individuals were allowed to serve in their identified or assigned gender upon achieving a medically and administratively recognized state of alignment with their gender identity. This could include gender-affirming surgery if medically necessary. However, they were not permitted to enlist during this time.

In 2018, transgender individuals were allowed to enlist in the U.S. military under the condition of being stable for 18 months in their identified or assigned gender. However, this progress was short-lived. From 2019 to 2021, transgender individuals were banned from serving or enlisting unless they obtained a waiver.

In 2021, President Biden signed an executive order reversing the ban on transgender individuals serving in the military. This order allowed transgender individuals to serve openly and receive the necessary medical care and treatment. However, this progress is once again under threat. President-elect Donald Trump has announced plans to reinstate a ban on transgender individuals serving and enlisting in the U.S. military, which he plans to enact in 2025. This proposed ban is broader in scope than the previous one and is expected to result in the discharge of thousands of transgender service members.

The rights of transgender people to serve in the military have been a contentious issue in the United States, with policies changing frequently depending on the administration in power. While some argue that transgender individuals should be allowed to serve openly, others cite concerns about military readiness, cohesion, and budgetary considerations. The debate around this issue is ongoing, and the future of transgender service members remains uncertain.

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