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Transgenderism, transsexualism, & gender identity

Governmental discrimination &
lack of protection for transsexuals

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Discrimination:

Discrimination of sexual minorities, like homosexuals and transsexuals, can take many forms: rejection, ridicule, hatred, firing from a job, rejection of accommodation, expulsion from the family, lack of medical care, harassment, physical violence, organized efforts to restrict their civil and human rights, and even murder.

Various federal Employment Non-Discrimination Acts (ENDA) have been proposed between the mid-1970's until 2009 to end discrimination against employees on the basis of their sexual orientation and gender identity. All previous bills have died without becoming law. The current bill H.R. 3017: "Employment Non-Discrimination Act of 2009," has little chance to succeed.

Map showing states protecting LGBT persons. Prepared by the National Gay and Lesbian Task Force:

U.S. map 7

blue square 16 states and the District of Columbia with anti-discrimination laws based on sexual orientation and gender identity/expression.

rose colored square 5 states banning discrimination based on sexual orientation.

Note the complete lack of laws in the American South, and the near complete absence in the mid-west.

hoirizontal rule

Lack of protection in federal law:

Shannon Minter of the National Center for Lesbian Rights wrote in 2003:

There is no federal law that prohibits discrimination against transgender individuals, and Minnesota and Rhode Island are currently the only
states with such laws. Outside of these states and the approximately 50 cities and counties that have enacted local non-discrimination statutes, there is generally no established legal recourse for anti-transgender discrimination in employment, housing or public accommodations." 1

Gay & Lesbian Advocates & Defenders (GLAD) reported in mid-2008:

"In New England, only Rhode Island, Maine, and Vermont provide explicit laws that prohibit discrimination against transgender people and only Vermont and Connecticut have passed hate crimes laws that protect trans people. At the federal level, there are no laws explicitly protecting transgender people in any context." 2

GLAD added the term "gender identity and expression" to its mission statement in 2001. In mid-2008, they announced the launch of their Transgender Rights Project, led by attorney Jennifer Levi. She is a Professor of Law at Western New England College. She also serves on the Legal Committee of the World Professional Association for Transgender Health, and is a founding member of the Transgender Law & Policy Institute and the Massachusetts Transgender Political Coalition. She said:

"Transgender people face the most basic and blatant discrimination every day, but we still don't have the best legal tools to fight back. With this project, GLAD can put its legislative, litigation, and educational assets to work in a focused way. One of the key goals of the project is to establish some clear, affirmative protections for the community. Courts often refuse to extend sex discrimination protections to transgender people. And while state-level disability laws have sometimes been effective, transgender people were explicitly excluded from the federal Americans with Disabilities Act. And not all transgender people easily fit within the framework of federal disability law." 2

A major step forward in the protection of transgender persons and transsexuals was achieved on 2009-OCT-28 after over a decade of failed attempts. A bill passed by Congress was signed into law to augment the existing hate crimes bill. Every person in the U.S. is now protected from being the victim of a hate crime in eight separate ways, on the basis of their: race, color, religion, national origin, gender, disability, sexual orientation and gender identity.

An important legal case: O'Donnabhain v. Commissioner of the IRS:

Rhiannon O'Donnabhain, 64, is a male-to-female (MTF) transsexual who was diagnosed with gender identity disorder. She spent over $25,000 on successful gender reassignment surgery (GRS) in 2001. She later claimed a $5,000 deduction on her income tax which the Internal Revenue Service rejected. They classified GRS as being essentially cosmetic in nature and thus not eligible under tax law. They claim that GRS mainly changes the body's appearance, not its functionality. They ruled that GID is neither a disease or an illness as defined in the tax code.  

Marshall Forstein, associate professor of psychiatry at Harvard Medical School, made a slightly caustic comment directed against the IRS:

"When did the IRS suddenly become physicians? It's absolutely clear that transgender identity is a condition discussed in diagnostic manuals. It seems the IRS is now in the business of practicing medicine without a license." 6

Bennett Klein, a GLAD lawyer representing O'Donnabhain commented:

"If you have bunions on your feet and it makes it hard for you to walk, that's covered, but something as broad-based as gender identity disorder is not?" I think what's clear here is that the IRS is making a political decision on what should have been an obvious medical deduction. You can't set different standards for a person's health; IRS agents should not be in a position of second-guessing health-care professionals." 6

During her trial in 2008-JUL, she explained that she had experienced Gender Identity Disorder (GID) from childhood. She said: "It was horrible. Absolutely horrible. I was thinking suicide was probably the only way out of this." In 2001, she underwent GRS to have her male genitals removed, a vagina constructed, and her breasts augmented. She credits the surgery with saving her life. She believes that the IRS is biased against her case, and cites as proof the IRS' decision to also deny her a deduction for the therapy that she underwent to treat the GID.

She said: "It's a Catch-22. I have to accept the stigma of being labeled as having a disorder [or] a mental condition in order to get benefits. I haven't liked this diagnosis from the very beginning. But I've got to play the game."

Her attorney, Karen Loewy, said: "It's really astonishing that the IRS is taking a position that they get to second-guess the determinations of a taxpayer's medical care providers. The medical community gets to decide what is medical care -- not the IRS." 3

On 2010-FEB-02, the U.S. tax cort ruled that Rhiannon was allowed to deduct her GRS medical expenses, including both her sex-reassignment surgery and hormone treatments. The court said that the ruling bythe IRS was:

"... at best a superficial characterization of the circumstances ... [that is] thoroughly rebutted by the medical evidence."

Other legal cases:

Since transsexuals lack protection in law, many have turned to the courts to seek equal rights:

bullet Prison inmates have sought GRS and hormone treatments as part of their medical care.

bulletStudents from kindergarten to college have been asked to be treated according to their perceived gender and to be called by their new name and appropriate pronoun -- "her" or "him."

bulletSome MTF transsexuals have entered into a loving committed relationship with men, have applied for marriage licenses, and been refused because the state viewed them as a same-sex, male-male, couple. They regard themselves as an opposite-sex couple.

bulletSome transsexuals have sought permission to use public washrooms reserved for their perceived gender.

References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Shannon Minter, "Legal and public policy issues for transgender elders," National Center for Lesbian Rights, 2003, at: http://www.nclrights.org/ 
  2. "GLAD launches transgender rights projects," GLAD, 2008-JUN-18, at: http://www.glad.org/
  3. Tovia Smith, "Transgender woman, IRS fight over tax deduction,"  National Public Radio, 2008-OCT-16, at: http://www.npr.org/
  4. Text of H.R. 3017: "Employment Non-Discrimination Act of 2009," GovTrack at: http://www.govtrack.us/
  5. O'Donnabhain v. Commissioner," Wiipedia, on 2010-NOV-17, at: http://en.wikipedia.org/
  6. Anthony Faiola, "Woman suing IRS over sex-change tax claims," Washington Post, 2007-OCT-01, at: http://www.washingtonpost.com/
  7. State nondiscrimination laws in the U.S., National Gay and Lesbian Task Force, 2012-JAN-201 at: http://www.thetaskforce.org/ This is a PDF file.

Copyright © 2007 to 2011 by Ontario Consultants on Religious Tolerance
Original posting: 2007-JUN-08
Latest update: 2011-APR-22
Author: B.A. Robinson

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