Running Head: GENDER IDENTITY
1
The Legal Protection of Gender Identities
Davis A. Smith
First Colonial High School
Legal Studies Academy
2
GENDER IDENTITY
ABSTRACT
This paper covers the issues surrounding transgender and non-binary individuals in
America and the social and legal problems they face. The author applies current
legislation and recent cases to the issues and states that, under U.S. law, members of this
group should be protected from discrimination and hate crimes. By applying laws that
protect against gender discrimination, the paper creates a strong argument for the legal
protection of gender identity.
3
GENDER IDENTITY
The Legal Protection of Gender Identities
In order to provide a clear understanding of what this paper is discussing, it will
start with a brief explanation of commonly used terms that may not be common
knowledge. Gender Identity is the concept that a persons’ gender is not based on genitals,
but their own personal connection to a gender that they believe they identify as.
Cisgender (cis) is a term for any person who identifies as the gender they were assigned
at birth. For example, a person who was born with male-sexed genitals who identifies as
a man would be cisgender. An estimated 99.7% of the United States population identifies
as cisgender (Gates, 2011), but this does not constitute being cis as “normal.” A
transgender (trans) individual is a person who does not identify as the gender they were
assigned at birth. Non-binary (NB or enby) is an umbrella term for any person who
identifies as a gender that is outside of the gender binary. The gender binary is the belief
that the only two genders are male and female. In reality, gender is a spectrum and not a
binary. A persons’ preferred pronouns (ex. he/him, she/her/, they/them, etc.) do not
necessarily identify gender, but are important to respect and use properly in conversation
and legal documents. Transphobia is a term for the hatred or dislike in any way of
transgender and non-binary people.
In order to ensure the safety and rights of this marginalized group, either
legislation should be passed specifically with the purpose of protecting these people, or
laws currently in place that prevent discrimination based on gender should be applied to
cases that effect transgender and non-binary individuals. The rights of transgender and
non-binary individuals are being violated under U.S. law through military, workplace,
and school discrimination, lack of recognition of gender identities, and through further
4
GENDER IDENTITY
discrimination in situations that require expensive transition surgeries to have gender
identity recognized.
A Community Marginalized
Ever since the first documented hate crime against a transgender individual in
1988, the numbers have grown exponentially. According to the National Coalition of
Anti-Violence Programs, in 2012 there were 25 reported anti-LGBT+ homicides and an
average of 53% of anti-LGBT+ homicide victims are transgender women. Such numbers
are shocking, especially with an already small percent of our population identifying as
LGBT+. The National Coalition of Anti-Violence Programs also released a statistic
saying that a transgender individual living in the United States has a 1 in 12 chance of
being murdered in their lifetime. Compare that to a cisgender person’s 1 in 6,100 chance
of being victim of homicide in their lifetime (United Nations) and it can be seen that this
group of people is being specifically targeted for hate crimes.
The first documented murder against a transgender person was the case of Venus
Xtravagenza. Venus was a transgender woman who lived in New York City and was a
sex worker to save money to be able to become a model and eventually planned to
complete her sex reassessment surgery. She was found dead under the bed in a hotel
room in 1988 at age 23. The cause of death was determined to be strangling, and it was
estimated that her body remained undiscovered four days post homicide. After a brief
investigation, no one was charged with the murder of Venus Xtravagenza. (Sandell,
1994). This story became a plot line in the 1994 movie Paris is Burning.
In the murder of Gwen Araujo in October of 1992, a transgender woman was
attacked and strangled by four men, two of which she had been sexually involved with
GENDER IDENTITY
5
previously. While at a party, Araujo was forcibly revealed to have male sexed organs,
something her previous sexual partners had not known. They quickly became violent and
knocked her unconscious and strangled her to death with a rope. In the trials that
followed, the trans panic defense was used without avail and all four attackers were
charged with either manslaughter or murder of the first degree. No one was charged
additionally with hate crimes (GLAAD, 2012).
In the Brandon Teena Case, a 23 year-old transgender man was raped and
murdered by two of his peers. On December 24th, 1993, 21 year-old Brandon Teena was
raped in front of his girlfriend by two of his friends who were angry at the fact that he
was transgender and dating someone one of the rapists dated. The perpetrators were Tom
Nissen and John Lotter. Brandon managed to escape after the incident and went to his
girlfriend’s house. Though she saw the incident and did nothing to stop it, Lana Tisdel
encouraged him to go to the hospital to get a rape kit to have evidence of the attack. After
going to the hospital, Brandon was interrogated by a police officer that asked several
inappropriate questions about Brandon’s gender and self. Brandon did not feel safe or
respected and left the scene. On December 30th, 1993, Nissen, Lotter, and Tisdel found
Brandon at his friend Lambert’s house. The two men then shot Brandon in the head and
stabbed him in the stomach to make sure he was dead. They asked Lambert if anyone else
was in the house, and after she told them about Phillip DeVine who was sleeping in the
other room. The two shot and killed the others in the house so that there wouldn’t be any
witnesses to the event and left Lambert’s eight-month old infant in his crib. The two men
were convicted of one count of first-degree murder and two counts of second-degree
murder. They were both given the death sentence, and are currently still awaiting their
GENDER IDENTITY
6
fate (Ramsland, 2014). During the articles and reports of the death of Brandon, he was
constantly referred to as “a cisgender lesbian woman” and “she,” showing that even in
cases of tragedy, the media likes to ignore the fact that he was murdered because he was
transgender. This was not a random crime of passion. It was premeditated and based on
the fact that Brandon was not cisgender. The death of Brandon Teena later became the
plot of the award winning film Boys Don’t Cry.
In the 2003 case of Nireah Johnson, a man named Paul Moore met her at a gas
station and decided to pursue her, believing her to be a cisgender woman. After
discovering in the bathroom at a later time that she was in fact transgender, Moore and
his friend Curtis Ward restrained Johnson and her friend who was with her at the time
with wire and drove them in to the woods in Johnson’s friend’s car. There, they were shot
in the head and the bodies burned inside the car. Moore and Ward were convicted of
murder, confinement, and arson with a 10-year sentence (GSA Network, 2014).
The murder of transgender people is not something that should be played off or
glorified in movies. It should be looked at as an attack that happened because of a
prejudice toward this group of people. The “Gay Panic Defense,” or sometimes
“Transgender Panic Defense,” is one example of the United States ignoring the need for
legislation to protect transgender people. This legal defense states that someone was so
shocked at the discovery that someone was either gay or transgender, that as a result they
were temporarily insane and should not be held responsible for their actions, which in all
cases thus far has been murder. The Gay Panic Defense has only been banned in
California in 2014 under Assembly Bill No. 2501 (LGBT Bar Association, 2014). This is
GENDER IDENTITY
7
an argument that is rooted in out nation’s Transphobia, and there needs to be federal law
that bans this defense from being used in all states.
Recent Legislation signed in to effect by President Obama titled The Matthew
Shepard and James Byrd, Jr. Hate Crimes Prevention Act has taken certain steps in the
right direction to ensure the protection of transgender individuals from hate crimes. This
law added to the 1969 United States Federal Hate-Crime Law to include protection of
crimes involving motivation based on victims’ gender, gender identity, sexual
orientation, and disability. 1969 law was originally meant to include the protection of
these groups, but was excluded during the process to avoid potential controversy of
radical Christian groups who were currently rallying against the need for protection of
sexualities. The law also provides funding for the investigation of hate crimes and grants
permission to the FBI to investigate further if local law enforcement drops a hate crime
case (Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, 2009). The law
was brought back to public attention when 21 year-old gay man was tortured and killed
by people who opposed his sexuality. The tragedy received minimal media coverage
because of the controversy of it not being considered a hate crime, even though the
motivations were stated to be because of his sexuality.
The cases discussed in this section are just a few of the incidents like this that
happen all the time and go unreported or unnoticed. Legislation needs to be passed to
protect this group of people that are being specifically targeted with crimes that can be as
violent as rape and murder.
8
GENDER IDENTITY
Exclusion From Equality
Transgender people are also being excluded from things such as school
involvement in sports, use of preferred bathrooms, name preference, and are being
discriminated against in hiring processes and military service. People are arguing that it is
for the “safety of the majority” that these things remain segregated. Our nation’s history
of segregation and discrimination is still something that happens now with transgender
people.
Discrimination In Military Service
The Department of Defense has banned all service in the military for transgender
individuals, claiming that it is to create a safe environment for those serving our country.
This is not the first time the military has discriminated against the LGBT+ community.
Don’t Ask Don’t Tell (DADT) was a policy that was active from 1993 to 2011 that
forbade anyone from asking or telling their sexuality (Human Rights Campaign, 2011).
The erasure of sexuality is no better then the blatant discrimination of expressing it.
We determined not only that there is no compelling medical reason for the ban,
but also that the ban itself is an expensive, damaging and unfair barrier to health
care access for the approximately 15,450 transgender personnel who serve
currently in the active, Guard and reserve components. Medical regulations
requiring the discharge of transgender personnel are inconsistent with how the
military regulates all other medical and psychological conditions, and
transgender-related conditions appear to be the only gender-related conditions that
require discharge irrespective of fitness for duty (Transgender American Veterans
Association, 2013).
GENDER IDENTITY
9
Transgender individuals are often discharged on “mental health regulations,” but
even after complete transition these people are not allowed to serve in the military.
Discrimination of any sort on the subject of who is and who isn’t able to defend this
country shows that personal prejudices are held at a higher importance than safety and
equality. There needs to be legislation or policies put in place to change this. Transgender
individuals should be able to serve in the military under their gender identity, not
physical sex.
Educational Equality
In recent years there have been many cases in which discrimination is seen in both
public and private schools against transgender people. There are certain accommodations
that can be made to make school a safe environment for these students that would not be
unreasonable for all states to enforce. These include use of preferred names and
pronouns, allowing students to use bathrooms and locker rooms based on gender identity
instead of sex by birth, and admitting transgender students to try out for school sports
based on their gender identity.
Legislation that permits all of this exists in California as of recent. The School
Success and Opportunities Act of 2013 granted students the right to use preferred
bathrooms, locker rooms, and try out for preferred gender sports teams (CBSA, 2014).
This law was met with extreme controversy at the time of its passing. People claimed that
it was creating an unsafe environment for their cisgender children by having to be
exposed to transgender students in these situations. Transgender students should not be
seen as threats to their peers. They just want to be treated equally and be able to use
services that make them most comfortable. If situations arise that prove that this law
GENDER IDENTITY
10
creates an unsafe place for any child, then it will be addressed as an issue. The potential
for a bad situation should not keep a law from being passed like this in every state, or
even federally.
Title IX of the Education Amendment Acts of 1972 was passed in result of the
feminist movement of the mid 20th century. This federal law generally enforced equality
and bans discrimination based on gender or sex. Though originally intended for women,
it has been argued that these laws are also applicable to situations of gender identity.
Under this law, “No person in the United States shall, on the basis of sex, be excluded
from participation in, be denied the benefits of, or be subjected to discrimination under
any education program or activity receiving Federal financial assistance…” The law then
goes on to list certain exclusions and exceptions to this law. The exceptions are programs
and organizations that are exempt from taxation and thus not applicable to this law (Title
IX of the Education Amendment Acts, 1972). The law even defines what shall be
considered an educational system as “any public or private preschool, elementary, or
secondary school, or any institution of vocational, professional, or higher education,
except that in the case of an educational institution composed of more than one school,
college, or department which are administratively separate units, such term means each
such school, college or department.” The definitions of activity, and what can and cannot
legally discriminate based on gender are as follows:
For the purposes of this title, the term "program or activity" and "program" mean
all of the operations of -(l)(A) a department, agency, special purpose district, or other instrumentality of a
State or of a local government; or
GENDER IDENTITY
11
(B) the entity of such State or local government that distributed such assistance
and each such department or agency (and each other State or local government
entity) to which the assistance is extended, in the case of assistance to a State or
local government;
(2)(A) a college, university, or other postsecondary institution, or a public system
of higher education; or
(B) a local educational agency (as defined in section2854(a)(10) of this title,
system of vocational education, or other school system;
(3)(A) an entire corporation, partnership, or other private organization, or an
entire sole proprietorship -(i) if assistance is extended to such corporation, partnership, private organization,
or sole proprietorship as a whole; or
(ii) which is principally engaged in the business of providing education, health
care, housing, social services, or parks and recreation; or
(B) the entire plant or other comparable, geographically separate facility to which
Federal financial assistance is extended, in the case of any other corporation,
partnership, private organization, or sole proprietorship; or
(4) any other entity which is established by two or more of the entities described
in paragraph (l), (2) or (3);
Any part of which is extended Federal financial assistance, except that such term
does not include any operation of an entity which is controlled by a religious
organization if the application of section 1681 if this title to such operation would
GENDER IDENTITY
12
not be consistent with the religious tenets of such organization (Title IX of the
Education Amendment Acts, 1972).
Under this law, gender identities should not be discriminated against in a school
environment. The 14th Amendment of the United States Constitution states that “No state
shall make or enforce any law which shall abridge the privileges or immunities of citizens
of the United States; nor shall any state deprive any person of life, liberty, or property,
without due process of law; nor deny to any person within its jurisdiction the equal
protection of the laws” (14th Amendment). Transgender citizens fall under this category
and thus cannot be denied their basic rights to life and equal protection under the law in
all situations.
In the case of George Fox University in 2014, a transgender man attending the
Christian university asked to be placed in housing with other men. The university denied
him this because it broke their policies put in place for safety reasons. When threatened
with outside lawsuits claiming they were in violation of Title IX of the Education
Amendment Acts of 1972, they stated that since the student was still in transition that
they could not offer him access to the male dorms. They did, however, offer him a single
person dorm and he accepted. The University handled the situation as appropriately at
they could, though really they should have offered him a male dorm.
Restroom preference is an issue that transgender students struggle with every day.
Something as simple as being able to use the restroom should not bring up so much
controversy. Policies vary from school to school and in some cases the state has a stance
on the issue, such as California’s School Success and Opportunities Act of 2013 that
allows students to use which ever restroom that they would like in accordance with their
GENDER IDENTITY
13
gender identity. Most schools do not offer such accommodations and either make
transgender students use the restroom for their sex assigned at birth or offer them access
to single stall gender neutral restrooms.
In 2014, Doe v. Clenchy was a case involving a transgender teenage girl being
refused access to the female bathrooms at both elementary and middle school. Her
parents were eventually forced to pull her and her twin brother out of school altogether,
and they sued the school board for failing to accommodate for her education. They won
their case and set a precedent for transgender teens in Maine to be able to use bathrooms
based on gender identity and not sex assigned at birth.
Cases of restroom preference do not always have positive outcomes for the
transgender student. In the case of Coy Mathis in 2013, a six year-old transgender girl
was told that she could use the boys’ bathroom, nurses’ bathroom, or the faculty
bathroom. Her parents saw this as unacceptable treatment of their child who had done
nothing wrong and filled a complaint to the school board. Not only did the school board
fail to provide accommodations for the child, but they also refused to even release a
statement on the issue. Her parents were forced to pull their child from public school and
home school her to provide a safe and comfortable learning environment (Holden, 2013).
In cases of denying transgender students restroom preference, parents or staff usually
complain that it is for the safety of the cisgender students, when in reality it is for the
safety of the transgender students that they use the correct bathrooms. There have been
no cases of violence in restrooms committed by transgender people.
Many transgender and non-binary people will change their name to make them
comfortable with their gender identity. Using someone’s birth name when they have
GENDER IDENTITY
14
asked you to use a different name can be very triggering for some people. The same goes
for use of preferred pronouns. Pronouns don’t necessarily imply gender, but using
incorrect pronouns can also trigger mental illnesses that can be as traumatic as
posttraumatic stress disorder or gender dysphoria. A person’s pronouns can be anything
from he/him/his, they/them/their, and she/her/hers to ce/cir/cirs. It is whatever makes the
individual most comfortable.
Equality in the Workplace
Similar to discrimination at school, workplace discrimination happens in many of
the same situations. Workplace discrimination often occurs in the hiring process, but
there have also been court cases where people are fired from work once they start
transitioning. All forms of discrimination in the work place violate United States Federal
law, yet cases of transgender discrimination are still occurring yearly.
In Glenn v. Brumby in 2009 transgender woman was fired on the spot from her
office when she told her boss that she planned to begin transitioning per doctors’
recommendation. The court ruled that she had been discriminated against and she was
compensated for the time without work (Lambda Legal, 2011).
Title VII Civil Rights Act of 1964 prevents work place discrimination of any
kind. This law came about during the civil rights movement of the 1960’s and was
intended for blacks and women. The law is as follows:
(a) Employer practices
It shall be an unlawful employment practice for an employer (1) to fail or refuse to hire or to discharge any individual, or otherwise to
discriminate against any individual with respect to his compensation, terms,
GENDER IDENTITY
15
conditions, or privileges of employment, because of such individual’s race,
color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in
any way which would deprive or tend to deprive any individual of employment
opportunities or otherwise adversely affect his status as an employee, because of
such individual’s race, color, religion, sex, or national origin (Title VII Civil
Rights Act of 1964).
In this case sex needs to either include the protection of gender identities, or this needs to
be edited to include them.
A Community That Needs Protection
The state of transgender rights continues to be an unacceptable reflection of our
country’s deep-rooted prejudices against anyone who is different. This is shown in the
amount of hate crimes against transgender people, and we are just now starting to take
small steps in the right direction. As this paper is being written there is a bill being
proposed to congress that would ban conversion therapy because it is blatant malpractice
and has led to multiple suicides, including the recent case of Leelah Alcorn. Leelah was a
16-year-old transgender girl who killed herself after constant harassment from her parents
and being forced to go to therapy that treated transgender people as having a curable
mental illness. We need to move forward as a nation and make this country a land of
equality.
16
GENDER IDENTITY
References
Adams, N. (2012, October 03). Gwen Araujo Murdered Ten Years Ago Today. Retrieved
from http://www.glaad.org/blog/gwen-araujo-murdered-ten-years-ago-today
Answers to your Questions About Transgender People, Gender Identity, and Gender
Expression. (n.d.). Retrieved from
http://www.apa.org/topics/lgbt/transgender.aspx
Bender-Baird, K. (2011). Transgender employment experiences: Gendered perceptions
and the law. Albany: State University of New York Press.
Constitution. (n.d.). 4th Amendment.
CSBA. (2013). California School Board Association [Web log post]. Retrieved from
csba.org
Currah, P., Juang, R. M., & Minter, S. (2006). Transgender rights. Minneapolis:
University of Minnesota Press.
Endsjø, D. Ø. (2005). Lesbian, gay, bisexual, and transgender rights and the religious
relativism of human rights. Human Rights Review, 6(2), 102-110.
doi:10.1007/s12142-005-1020-1
Gay and Lesbian Advocators and Defenders. (2014, January 30). Doe v. Clenchy.
Retrieved from http://www.glad.org/work/cases/doe-v.-clenchy
Gay Straight Alliance Network. (n.d.). Transgender Day of Remembrance. Retrieved
from gsanetwork.org
George Fox University. (2013). Transgender student and housing at George Fox
University. Retrieved from http://www.georgefox.edu/transgender/
GENDER IDENTITY
17
Hate Crime Prevention Acts of 2009. (2010, September 21). Retrieved December 19,
2014, from http://www.fbi.gov/aboutus/investigate/civilrights/hate_crimes/shepard-byrd-act-brochure
Holden, W. C. (2013, March 08). District won't enter mediation with transgender girl
banned from bathrooms. Retrieved from http://kdvr.com/2013/03/08/districtwont-enter-mediation-with-transgender-girl-banned-from-bathrooms/
Human Rights Campaign. (n.d.). The Repeal of "Don't Ask, Don't Tell" Retrieved from
http://www.hrc.org/resources/entry/the-repeal-of-dont-ask-dont-tell
Lambda Legal. (2011). Glenn v. Brumby et. al. Retrieved from
http://www.lambdalegal.org/in-court/cases/glenn-v-brumby-et-al
The LGBT Bar. (2014). Gay and Trans Panic Defense - The National LGBTBar
Association. Retrieved December 19, 2014, from http://lgbtbar.org/what-wedo/programs/gay-and-trans-panic-defense/
Meyer, D. (2008). Interpreting and experiencing anti-queer violence: Race, class, and
gender differences among lgbt hate crime victims. Race, Gender & Class,
15(3/4), 262-282. Retrieved October 7, 2014, from ProQuest Family Health.
Meyer, D. (2008). INTERPRETING AND EXPERIENCING ANTI-QUEER
VIOLENCE: RACE, CLASS, AND GENDER DIFFERENCES AMONG
LGBT HATE CRIME VICTIMS. Race, Gender, and Class, 1-27.
National Center for Transgender Equality. (n.d.). Retrieved from http://transequality.org/
Pardo, S. (2011). Queering Transgender: Towards a Sociology of Transgender. Journal
of Sex Research, 48(4), 409-410. doi:10.1080/00224499.2010.487769
GENDER IDENTITY
18
Ramsland, K. (n.d.). The Brandon Teena Story. Retrieved from
http://www.crimelibrary.com/notorious_murders/not_guilty/brandon/4.html
Sandell, J. (1994). Paris Is Burning. Retrieved December 19, 2014, from
http://mith.umd.edu/WomensStudies/ReadingRoom/AcademicPapers/shopping
-for-a-change
Shapiro, L. (2013, November 20). Charges Dropped In Beating Death Of Transgender
Woman, But Family And Advocates Hopeful [Web log post]. Retrieved
January 5, 2015.
TAVA. (2014). Transgender American Veterans Association. Retrieved December 19,
2014, from http://tavausa.org/
Title VII of the Civil Rights Act of 1964. (1964). Retrieved December 19, 2014, from
http://www.eeoc.gov/laws/statutes/titlevii.cfm
Transgender Rights. (n.d.). Retrieved from http://www.transgenderrights.org/