Emerging Transgender Issues and
the Law: Medical and Legal
Update
CAPT Lisa Cartwright
Chair, BUMED Transgender Working Group
Lisa.cartwright@usuhs.edu
202-560-3759
Megan M. Weis
Special Counsel to the General Counsel
Army Office of the General Counsel
Emerging Transgender Issues and the
Law: Medical Management
for Gender Transition for Transgender
Individuals
Overview
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Definitions
Gender Dysphoria
Standards of Care
Gender Transition
Timeline
Definitions
• Gender Identity
– A person’s intrinsic sense of being male, female,
or alternative gender
Definitions
• Natal Gender
– Gender assigned at birth
Definitions
• Transgender1
– Diverse group of individuals who cross or
transcend culturally defined categories of gender
– Gender identity differs to varying degrees from
natal gender
Definitions1
• Female-to-male (FtM)
– Natal female who has changed or is changing
body and/or gender role to a more masculine
body or role
• Male-to-female (MtF)
– Natal male who has changed or is changing body
and/or gender role to a more feminine body or
role
Definitions
• Gender Dysphoria
– Discomfort or distress caused by discrepancy
between Gender Identity and Natal Gender 1
Definitions
• Gender Dysphoria in Adolescents and Adults
(DSM 5) 2
– Marked incongruence between one’s
experienced/expressed gender and assigned
gender, (at least 6 months)
– Associated with clinically significant distress or
impairment in social, occupational, or other
important areas of functioning
Definitions
• Gender Dysphoria in Adolescents and Adults
(DSM 5) 2
– incongruence between one’s experienced/expressed gender and
assigned gender, manifested by at least two of the following:
• incongruence between one’s experienced/expressed gender and
sex characteristics
• desire to be rid of one’s sex characteristics because of
incongruence
• desire for the sex characteristics of the other gender
• desire to be of other gender
• desire to be treated as the other gender
• conviction that one has typical feelings/reactions of other gender
Gender Dysphoria 2
• Often, but not always, accompanied by a desire
to be rid of sex characteristics and/or a desire to
acquire sex characteristics of the other gender
• May adopt the behavior, clothing, and
mannerisms of the experienced gender
• Uncomfortable regarded by others, or
functioning, as assigned gender
• May have a strong desire to be of a different
gender and treated as such without seeking
medical treatment to alter body characteristics.
Definitions
• Gender nonconforming
– Individual whose gender identity, role or
expression differs from cultural norms prescribed
for people of a particular sex1
– Differs from gender dysphoria due to absence of
strong desire to be of another gender2
Gender Dysphoria 3
• Replaces “gender identify disorder”
• Gender nonconformity is not itself a mental
disorder
– Only some gender non-conforming people
experience gender dysphoria at some point in
their lives
• CRITICAL ELEMENT is clinically significant
distress associated with the condition
Definitions
• Disorder of Sexual Development (DSD)
– Congenital conditions where development of
chromosomal, gonadal, or anatomic sex is atypical
– A. k. a. “intersex”
Definition
• Transvestism (cross dressing) 1
– Wearing clothing and adopting a gender role
presentation that, in a given culture, is more
typical of the other sex1
Paraphillic disorders 2
• Voyeuristic disorder
– Spying on others in private activities
• Exhibitionistist disorder
– Exposing genitals
• Frotteuristic disorder
– Touching or rubbing against non-consenting individual
• Sexual Masochism disorder
– Undergoing humiliation, bondage, or suffering
• Sexual Sadism disorder
– Inflicting humiliation, bondage or suffering
• Pedophillic disorder
– Sexual focus on children
• Fetishistic disorder
– Focus on nongenital body parts
• Transvestic disorder
– Engaging in sexually arousing cross dressing
Definitions
• Transition 1
– Period of time when individuals change from natal
gender to different gender role
– May include
• Learning to live socially in another gender role
• Finding most comfortable gender role and expression
• Feminization or masculinization of the body through
hormones or medical procedures
– VARIABLE and INDIVIDIUALIZED nature and
duration
WPATH (World Professional
Association for Transgender Health)
• International multidisciplinary professional
association to promote evidence-based care,
education, research advocacy, public policy ,
and respect in transsexual and transgender
health. 1
• Articulates Standards of Care (SOC) for
Transgender, Transsexual and GenderNonconforming individuals
WPATH Standards of Care (SOC) 1
• Flexible
• Clinical guidelines which may be modified by
individual health professionals and programs
– Unique patient situation
– Professional’s evolving practice
– Research protocol
– Lack of resources
Transgender Prevalence
• ???
– Mostly derived from clinics where patient meet
criteria for severe gender dysphoria
– Reported prevalence1
• 1:11,900-45,000 MtF
• 1:30,400-200,000 FtM
• True prevalance is likely much higher
Gender Dysphoria
Psychological and Medical Treatment
• Highly individualized
– Change gender expression and role
– Hormone therapy
– Surgery
– Both hormone therapy and surgery
– Neither hormones or surgery
– Psychotherapy
Gender Dysphoria
Social Support and Gender Expression
Changes
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Peer support
Support for family/friends
Voice/communication therapy
Hair removal
Breast binding/padding; genital tucking
Name change and gender change on identity
documents
Psychotherapy
(WPATH SOC)1
• Mental health screening REQUIRED for
hormonal or surgical treatment
• Psychotherapy
– Highly recommended
– NOT required
Hormone Therapy
(WPATH SOC)1
• Medically necessary for many individuals with
Gender Dysphoria
• Recommended prior to some, not all, surgical
treatment
Hormone Therapy Criteria
(WPATH SOC)1
• Referral from one mental health provider
• Persistent, well documented Gender
Dysphoria
• Informed consent capacity
• Age of majority
• Reasonably well controlled medical and
mental health concerns
Hormone Therapy Informed Consent
(WPATH SOC)1
• May result in irreversible physical changes
• Document
– Comprehensive information provided
– Possible benefits
– Risks
– Impact on reproductive capacity
Hormone Therapy Effects
• Occur over course of 2 years
• Variable timeline
• Variable effects
Hormone Therapy Effects
FtM
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Deep voice
Variable clitoral enlargement
Facial/body hair
Cessation menses
Breast atrophy
Decreased body fat %
Reduction in fertility
Hormone Therapy Effects
MtF
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Breast growth
Erectile dysfunction
Decreased testicular size
Increased body fat %
Reduction in fertility
Hormone Therapy Risks1
Risk level
MtF
FtM
Likely increased
Venous thromboembolism
Gallstones
Elevated Liver Enzymes
Hypertriglyceridemia
Polycythemia
Weight gain
Acne
Balding
Sleep apnea
Likely increased in the
presence of risk factors
Cardiovascular disease
Possible increased
Hypertension
Hyperprolactinemia / prolactinoma
Elevated liver enzyme
Hyperlipidemia
Possible increased in
presence of risk factors
Type 2 Diabetes
Destabilization of psychiatric
disorders
Cardiovascular disease
Hypertension
Type 2 Diabetes
Not increased or
inconclusive
Breast Cancer
Bone density loss
Breast cancer
Cervical cancer
Ovarian cancer
Uterine cancer
Hormone Therapy
follow-up
• 2-3 months initially to stabilize on dose
• Every 2-3 months for first year
• Annual consultation with endocrine after first
year
• Potential 1 year non-deployable form
initiatation
Sex Reassignment Surgery
(WPATH SOC)1
MtF
FtM
Breast/chest
Breast augmentation
mastectomy
Genital
Penectomy
Orchiectomy
Vaginoplasty
Clitoroplasty
Vulvoplasty
Hysterectomy/salpingectomy
Oophorectomy
Metoidioplasty
Phalloplasty
Vaginectomy
Srotoplasty
Penile prosthesis
Testicular prosthesis
Non-genital/
non-breast
Facial feminization
Liposuction/Lipofilling
Voice surgery
Thyroid cartilage reduction
Gluteal augmentation
Voice surgery (rare)
Liposuction/lipofilling
Pectoral implants
Sex Reassignment Surgery Criteria
(WPATH SOC)1
• Breast/chest surgery FtM
– Single referral
– Persistent, well-documented gender dysphoria
– Informed consent capacity
– Age of majority
– Well controlled mental and medical health
concerns
– Hormone therapy NOT prerequisite
Sex Reassignment Surgery Criteria
(WPATH SOC)1
• Breast/chest surgery MtF
– Single referral
– Persistent, well-documented gender dysphoria
– Informed consent capacity
– Age of majority
– Well controlled mental and medical health
concerns
– Hormone therapy NOT prerequisite
• RECOMMEND at least 12 months prior to breast
augment
Sex Reassignment Surgery Criteria
(WPATH SOC)1
• Genital (gonadectomy / hysterectomy)
– Two referrals
– Persistent, well-documented gender dysphoria
– Informed consent capacity
– Age of majority
– Well controlled mental/medical health concerns
– 12 continuous months of hormone therapy
Sex Reassignment Surgery Criteria
(WPATH SOC)1
• Genital (FtM metoidioplasty/phalloplasty; MtF
vaginoplasty)
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Two referrals
Persistent, well-documented gender dysphoria
Informed consent capacity
Age of majority
Well controlled mental/medical health concerns
12 continuous months of hormone therapy
12 continuous months living in desired gender role
(“real life experience”)
Real Life Experience
• Present consistently on day-today basis,
across all settings of life in their desired
gender role
• 12 months allows full range of life experiences
throughout the year
Transition Timeline
Summary
• Transgender people may develop Gender
Dysphoria
• Treatment for Gender Dysphoria may require
hormonal or surgical treatment for gender
transition
• Gender transition is highly variable among
individuals
References
1. Standards of Care for the Health of Transsexual, Transgender, and GenderNonconforming People, Version 7. Coleman, E., Bockting, W., Botzer, M., CohenKettenis, P., DeCuypere, G., Feldman, J.,Fraser, L., Green, J., Knudson, G., Meyer, W.
J., Monstrey, S., Adler, R. K., Brown, G. R.,Devor, A. H., Ehrbar, R., Ettner, R., Eyler,
E., Garofalo, R., Karasic, D. H., Lev, A. I.,Mayer, G., Meyer-Bahlburg, H., Hall, B. P.,
Pfaefflin, F., Rachlin, K., Robinson, B., Schechter, L. S., Tangpricha, V., van
Trotsenburg, M., Vitale, A., Winter, S., Whittle, S.,Wylie, K. R., & Zucker, K.
International Journal of Transgenderism, 13:165–232, 2011
2. Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition Edited by
American Psychiatric Association, 2013.
3. American Psychiatric Association (APA) statement , Gender Dysphoria in the
DSM-5. www.psychiatry.org , 2013.
Emerging Transgender Issues and the
Law: Legal Update
Office of the General Counsel
Agenda
1.
2.
3.
4.
Corrections
Civilian
Other Countries
U.S. Military
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Corrections
• 8th Amendment- deliberate indifference to a
prisoner’s serious medical need
- serious or significant physical or emotional injury,
or substantial risk of
- reckless disregard
• Gender Dysphoria as a serious medical need
• Prison security needs
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Corrections-BOP
• BOP Transgender Resource Guide, November
2014
• Prison Rape Elimination Act (PREA)
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Corrections-Military
• Manning
– Has sued for medical care for gender dysphoria
under 8th Amendment.
– Army Court of Criminal Appeals : "Reference to
appellant . . .either be neutral . . . or employ a
feminine pronoun."
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Civilian- Legal Developments
• Title VII of the Civil Rights Act of 1964
• Executive Order 11478 (Amended July 2014)
• Agency Guidance
• DOJ Positions
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Title VII
• Unlawful for employers to discriminate in the
employment of an individual “because of such
individual’s . . . sex.”
• Does not contain an explicit prohibition of
discrimination on the basis of sexual
orientation or gender identity or expression.
• “Sex-sterotyping” theory
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Title VII
• Macy v. Holder (EEOC April 20, 2012)
• EEOC ruled that discrimination on the basis of
gender identity is discrimination based on sex.
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Executive Order 11478
(amended)
• “It is the policy of the Government of the
United States to provide equal opportunity in
Federal employment for all persons, to prohibit
discrimination in employment because of race,
color, religion, sex, national origin, handicap, or
age, sexual orientation, gender identity, or
status as a parent.”
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Agency Guidance
• OPM: Federal government’s policy of
providing a workplace free from discrimination
based on sex includes discrimination based on
gender identity
• OSHA: Restroom access
• HHS: Proposed Rule addressing
nondiscrimination in federal health care
programs
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DOJ Positions
• Attorney General Memorandum- Title VII
– discrimination based on gender identity constitutes
sex discrimination
• Statements of Interest
– Title IX and Equal Protection Clause
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Other Countries
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Veterans
• VA: providing care to transgender patients
• DoD: name change on DD 214s
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U.S. Military
• Working Group established- 28 July 2015
• Start with the presumption that transgender persons can serve
openly without adverse impact on military effectiveness and
readiness.
• No service member shall be involuntarily separated or denied
reenlistment or continuation of active or reserve service on the
basis of their gender identity without the personal approval of
the USD(P&R).
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Questions?
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