Author: George

Transgender rights

Transgender rights encompass the fundamental rights of individuals whose gender identity is different from, inconsistent with, or not associated culturally with the sex that the individual was assigned at birth. For example, some individuals that were assigned a certain sex at birth, or have a certain orientation of chromosomes, now choose to identify with a different, well-defined gender orientation later in life (such as an individual assigned at birth to the sex of “male” identifying as a “female”). Other individuals may identify as a gender not well-defined by the culture in which they exist, or a gender that may not be shared by anyone else. Still, other individuals may identify as multiple genders, change the gender or genders they identify with throughout life, or may identify as no gender. Although gender and sexual preferences are sometimes linked, they are distinct topics, meaning that an individual who identifies as a certain gender may not conform to the otherwise historically assigned sexual preferences of that gender. This means, for example, that an individual assigned to the sex of “male” at birth may display a sexual preference for women, despite identifying as a woman.

Historically

 

Historically, transgender or gender non-conforming individuals, were treated as being diagnosable with a mental illness. Frequently, efforts were made by medical health professionals to conform the individual’s behaviors and outward appearance to conform to the sex they were assigned with at birth. Quite frequently, such efforts also corresponded with “therapies” and other “treatments” in misguided attempts to conform the same individual’s sexual preferences with the sexual preferences traditional associated with the sex of their birth. Such efforts continued until relatively recently in the United States (and may still continue in some communities) and are still widely practiced in certain societies and cultures throughout the world. Parents in the United States continue to be able to exercise vast control over their children with regards to the gender and sexual identity, and, as of 2018, it is still legally permissible in the majority of United States jurisdictions for parents to subjugate their transgender or questioning children to undergo sexual or gender conversion therapies.

 

Range of Characteristics

 

Increasingly, gender (and, specifically, gender identity) has become understood to encompass a range of characteristics, many of which are believed to be socially constructed. For example, the so-called “traditional” appearance, preferences, sexual preferences, and role in society of women do not appear to be tied to any physical or genetic basis. Because society has traditionally categorized gender as binary, society has traditionally required all members of society to associate with one gender or another. As a result, those who identify their gender as something “in between” or entirely different from their sex assigned at birth were required to “pick” a gender. Such a paradigm created, and still creates, mental anguish as that individual struggles to understand the social construct into which they were placed. Many healthcare professionals, activists, and politicians believe that an individual’s sex is only a matter of biology, determined by chromosomal orientation and genetics. As such, “gender” and “transgender rights” deals exclusively with societal constructs that any individual may choose to adhere to, create a new, or ignore.

 

Transgender Issues

 

Transgender rights can therefore encompass issues such as a transgender individual’s rights as an employee (for example, to not be terminated at a job due to gender identity), rights with healthcare professionals (for example, to be treated as the gender that individual identifies with, or to have surgery to more closely align one’s body to the gender that individual identifies with), the rights to serve in the military or in other public offices. These rights may also subsume what some might call “basic” human rights in society (such as, but certainly not limited to, the right to use public accommodations that are actually or were historically associated with only those of a certain sex, like a bathroom). Many transgender advocates contend that society at large is still struggling with “basic” human rights questions regarding transgender individuals, such as the right against public discrimination. Illustrative examples of this struggle abound, such as efforts by transgender individuals to obtain insurance coverage for sexual reassignment surgery, widely believed to be necessary by medical professionals (and widely denied as medically necessary by public and private insurance companies, often impermissibly).

 

Transgender Rights Vary with the States

 

Unfortunately, the rights of transgender individuals are fluid, often with the political administration in power at any given time, and also change vastly on a state-by-state and locale-by-locale basis. Whereas some states afford relatively large protections towards transgender individuals, particularly in the realm of public discrimination, other states afford essentially no protections. For example, Oregon, in 2016, became the first state to legally recognize the existence of non-gender binary individuals. This disparity in state laws has most strikingly been on display in the public debates about the use of bathroom by transgender individuals. For example, for a time, North Carolina had a state law which mandated that public restrooms could only be used by individuals who conformed to the sex assigned to them at birth, seen largely as an affront to the rights of transgender individuals throughout the state. Amid vast public criticism, the state repealed and reversed this law in 2017, though North Carolina law continues to have provisions that limit the recognition and protections the state and its municipalities can employ to protect LGBTQ individuals and couples.

 

Federal Law

 

Federally, there are essentially no laws specifically crafted to protect transgender people from discrimination in any realm, nor do most federal and states laws include violence against transgender individuals as a hate crime. Although many have interpreted the Equal Protection Clause of the 14th Amendment of the Constitution as barring discrimination based on an individual’s chosen gender, this has not yet been established at the United States Supreme Court, meaning that extant laws that purport to prevent discrimination based on sexual identity or on sexual preference do not yet apply to gender. Some federal circuits, and individual states, have, however, extended the Equal Protection Clause, or the state’s equivalent protections or anti-discrimination laws, to encompass transgender individuals in the realm of employment or the use of public facilities. Whereas the Obama administration was largely in favor of expanding the scope of federal anti-discrimination laws to encompass transgender individuals, the current administration has often halted, or even reversed some of the progress made.

Transgender rights are an enormously fluid, complex, and variable area of law (one where rights may change even on a municipality-by-municipality basis). If you are encountering an issue in which you believe you have been denied rights you should be afforded by a school, employer, insurance company, or government, it is essential to contact an attorney familiar with such rights. Only such attorneys have the compassion, legal knowledge, and wherewithal to zealously advocate on your behalf. Although efforts to promote the rights of transgender people are still in the infancy, every battle further strengthens the effort to promote full rights for transgender individuals in the private and public realms.

Poverty and Income Gap for LGBTQ Individuals

Although LGBTQ people appear to be distributed equally within socioeconomic classes in the United States, a disproportionate number of LGBTQ individuals are impoverished, even when controlling for factors associated with poverty, like race, religion, ethnicity, and education.

Discrimination at Home

The reasons behind this inequity are multi-factored. First, a disproportionate number of children and young adults who identify as LGBTQ face discrimination at home. Although hopefully decreasing in frequency, LGBTQ youths face the real possibility of homelessness as teenagers when parents, guardians, and other caregivers reject their sexual orientation or gender identity. Because some LGBTQ youths are often secretive about their identities or struggle to understand their sexual desires, they may seek destructive behaviors, including self-harm. Such behaviors may be misinterpreted by families and guardians, again resulting in rejection and mental or physical alienation, particularly among communities that may be uniquely religious or maintain strong, conservative cultural norms regarding sexuality and gender. LGBTQ youths may be disproportionately targeted by bullies online or in person, again creating feelings of alienation, and sometimes causing the manifestation of destructive behavior. Such behaviors can lead to homelessness or can truncate meaningful learning and opportunities for advancement that could pay economic dividends later in life.

Work Discrimination

Second, LGBTQ individuals face disproportionate discrimination at work, both in hiring, salary, promotions, and firings. This ultimately leads to a disproportionate number of LGBTQ individuals to take underpaid jobs, or may result in these individuals being unemployed, or prematurely terminated. There exist few federal or state-level protections for LGBTQ individuals that prevent employment discrimination based on sexual or, particularly, gender orientation. This means that LGBTQ individuals frequently are without recompense (or, worse, are entirely unaware) when they are passed over for a job or promotion, or are fired, solely due to their sexual orientation or gender identity. Even seemingly trivial matters at work, such as not being invited to an important meeting because a superior feels uncomfortable interacting with a transgender individual, can have substantial economic repercussions.

Federal Recognition

Third, until very recently, LGBTQ couples in committed, same-sex relationships, lacked state and federal recognition of their relationships, such as the ability to marry. This, and the continued lack of federal and state recognition of many types of unmarried LGBTQ relationships, mean that elderly LGBTQ individuals frequently lack the economic, societal, and cultural trappings that can assist elderly individuals whose spouse or life partner has died. For example, consider an elderly LGBTQ couple who chose never to get married because such an option was unavailable for the majority of their lives. If the couple chose not to execute a will governing the distribution of each partner’s assets after death (and, in some cases and in some states, even if they had), the surviving partner might receive none of the dying partner’s estate. This differs markedly from the treatment of opposite-sex couples who were married at the time of death, and who often will receive the majority or entirety of a partner’s assets even if the dying partner left no will. Moreover, the surviving partner of a same-sex relationship may receive none of the deceased partner’s other benefits, such as pension, social security, disability, life insurance payments, and similar that a married, opposite-sex couple would receive.

Children Rearing and Senior Housing

Finally, many LGBTQ couples, again, until relatively recently, chose or were legally prevented from raising or having children. This means that elderly LGBTQ couples frequently lack younger children and families who might, in the case of opposite-sex couples or couples otherwise with children, be able to financially support the couple later in life. Discrimination even in the realm of retirement homes or nursing facilities can have substantial impacts on wealth, leading elderly LGBTQ individuals to pay more for (or struggle to find) facilities that will accommodate them.

Race or Impoverished Families

People of color, or people born into impoverished families (or both), face unique economic challenges. These challenges are not only tied to the struggles of LGBTQ individuals, but also to endemic, and, often, systemic racism imposed on such individuals by society and by cultural norms and institutions. Numerous long-term studies in the United States have suggested that poverty can continue generationally as a quasi-inheritable state, meaning that children of impoverished parents are vastly more likely to be impoverished themselves than children of affluence. Impoverished families are often unable to offer counseling and the sort of direct attention many young LGBTQ individuals seek and require when coming to terms regarding their sexual identities and gender.

All of these factors combined paint a dismal picture and help to explain the increased incidence of poverty in LGBTQ communities. Despite this, one of the major issues facing impoverished LGBTQ individuals is the prevailing stereotype, seemingly held by many, of LGBTQ individuals as being uniquely privileged. For example, many envision gay men as living in immaculately decorated apartments in New York City, working in lavish jobs and enjoying a lifestyle devoid of children or other familial obligations. While this might be a lifestyle enjoyed by some, the presentation of gay men in the media has suggested that this lifestyle is vastly more prevalent than it actually is. As a result, conversations regarding poverty become more difficult when the general public, and even family and friends of LGBTQ individuals, envision a lifestyle widely portrayed in the media that is rarely the case. Stereotypes of gay men as being affluent and privileged are doubtlessly an improvement from the widely held stereotypes of gay men as being sexual deviants held by many for much of the 20th century. Regardless, however, these stereotypes impede meaningful dialogue that would recognize the disproportionate appearance of poverty in LGBTQ communities, including among gay men.

Moreover, the public perception of the LGBTQ community as a homogenous group of individuals both belies the obvious truth, and further hinders meaningful societal reform. For example, the struggles faced by a gay man living in San Francisco born to an affluent, progressive family may be different markedly from the struggles of a transgendered individual of Latino heritage born to Spanish speaking immigrants working as day laborers in rural Texas. Too often, policymakers, in attempting to combat societal and economic issues, group such individuals together when crafting policy choices. This often leaves the most at-need, such as the already impoverished and people of color, behind, and most in need of strong advocates to promote their causes.

Poverty and the income gap among LGBTQ individuals is a serious societal problem, requiring both political and cultural changes. As LGBTQ rights continue to progress at all levels of society, this issue is hopefully one policymaker will soon begin to address s

Family Planning and LGBTQ Rights

The rights of LGBTQ individuals regarding family planning are a fluid, difficult area of law. Like most family law issues, LGBTQ family planning rights are determined exclusively on a state-by-state basis, meaning that each state may (and many states do) have vastly different laws regarding the rights of individuals to adopt, and with regards to surrogacy. This patchwork of states laws can create tremendous uncertainty for LGBTQ families looking to adopt or conceive a child, both with regards to the state in which they live, or states in which they are looking to relocate. Luckily, numerous United States Supreme Court decisions, most recently, in Pavan v. Smith from 2017, have begun to standardize laws regarding same-sex adoption and surrogacy in the wake of Obergefell v. Hodges, the 2015 decision legalizing same-sex marriage. Despite these decisions and largely more progressive states laws throughout the country, there remains much work to be done to promote equal rights among same-sex couples with regards to family planning.

LGBTQ Adoptions

Prior to the mid-1970s, essentially all states barred LGBTQ individuals or couples from parenting a child, most specifically via adoptions. Such bars were (and, where present, continue to be) based on a belief that LGBTQ individuals were unfit parents by virtue of their sexual orientation or gender identity. Opponents of LGBTQ adoption or surrogacy point to alleged higher rates of divorce, separation, promiscuity, domestic violence, and/or drug use among LGBTQ couples, although data supporting this viewpoint is largely non-existent, and often contrary to this perspective. Moreover, some religious groups oppose non-opposite sex couples fostering or conceiving a child on the basis of conflict with religious dogma or echoing similar beliefs regarding the sufficiency of same-sex parents to provide a nurturing environment for children. This debate, in some ways, subsumes a larger debate regarding the appropriate policy that should govern adoptions and surrogacy issues. That is, legal scholars and advocates debate whether the welfare of a child should, exclusively, dictate policy regarding adoptions or surrogacy, or whether, and to what extent, the wishes of prospective or actual parents should also have weight. Regardless, many LGBTQ adoptions and surrogacy advocates argue that the welfare of a child is in no way impacted by the sexual orientation or gender identity of the parents.

Many advocates of LGBTQ adoption and surrogacy rights point to the existence of unwanted and orphaned children—both domestically and internationally—in suggesting that there is a paucity of qualified and interested parents. Even were one to accept that LGBTQ parents are somehow inferior to different-sex parents, likely a loving home is superior to that of an orphanage. Further, the experience of the last several decades, in which LGBTQ adoption and surrogacy have become relatively more common, suggests that there are no measurable differences in the happiness, professional success, sexual orientation, or gender identity of children raised by same-sex couples when compared with children raised by opposite-sex parents. Among other things, this strongly suggests that the sexual orientation of parents has little or no impact on the sexual or gender identity of a child. Moreover, many countries (including many states in the United States) permit single individuals to adopt a child, creating the awkward legal scenario of permitting a single individual, who may identify as LGBTQ, to adopt a child, but not permitting that individual to adopt if in a romantic, same-sex relationship.

Pavan v. Smith

In Pavan v. Smith, two same-sex couples argued that Arkansas law regarding surrogacy was unconstitutional. At the time, Arkansas state law mandated that the name of the mother’s male spouse (if the woman was married) appear on a child’s birth certificate, regardless of whether the male spouse had any biological relationship to the child. Arkansas, however, declined to impose this obligation or ability on same-sex couples, meaning that the name of the mother’s same-sex spouse would not be included on state-issued birth certificates for children who were born in Arkansas. Both couples challenging this law had been lawfully married in jurisdictions in which same-sex marriage was permitted at the time of their marriages, and the mothers giving birth had both used male sperm donors to conceive a child.

Obergefell v. Hodges

The Supreme Court ruled in favor of the couples, holding that the Supreme Court’s decision in Obergefell v. Hodges meant that all states must give same-sex couples the “constellation of benefits” that any given state has linked to marriage. Such benefits, the Court found, include the right for a married couple to have both spouses listed on the birth certificate of their child, regardless of their sexual orientation, and regardless of the biological affinity of the parents and child. This ruling applied to all states with similar birth certificate laws, marking another significant inroad for same-sex couples looking to adopt or conceive a child.

Pavan is simple one high profile example among many regarding the uphill battle that LGBTQ couples continue to face when adopting or conceiving a child. Because each state is empowered to create and enforce its own laws regarding same-sex adoption and conception, it is hugely important for same-sex or LGBTQ married or unmarried couples to thoroughly investigate the relevant state laws and legal decisions prior to committing to an adoption or surrogacy.

A skilled attorney knowledgeable in the minutiae of state law can help guide couples through this often difficult and stressful process. Moreover, if you believe that your rights as a parent or prospective parent have been compromised by a state or local government due to your sexual identity or gender identification, it is absolutely essential to contact a skilled attorney to advocate on your behalf and the rights of your child or unborn child. Although estimates widely vary, it is thought that there are at least one hundred thousand same-sex families raising children in the United States. This means that every year the number of children born or adopted by these families increases, especially as acceptance of same-sex adoption and surrogacy spreads among the country. Only through fighting for the rights of LGBTQ individuals to adopt and conceive children can meaningful progress be made towards true equality.