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.