Discrimination Against Transgendered People In America

"Reprinted with Permission from ICTLEP, the International Conference on Transgender Law and Employment Policy, PO Drawer 1010, Cooperstown, NY 13326, 607-547-4118, e-mail at ictlephdq@aol.com, America On Line Keyword ICTLEP, web page www.abmall.com/ictlep". "Index" of transgender legal articles from five years of annual conferences available on AOL keyword and web page.

What does 'Transgendered' Mean?

A 'transgendered' person is someone whose gender identity or expression differs from conventional expectations of masculinity or femininity. For most people, there is no conflict or incongruity between their physical sex and their internal psychological identification as male or female. For transgendered people, however, their gender identity is in conflict with their physical sex, and thus their gender expression or physical characteristics may differ from their sex as assigned at birth. Although transgendered people have been part of every culture and society in recorded human history, they have only recently been the focus of medical science. There is a broad consensus among medical researchers that transgenderism is rooted in complex biological factors that are fixed at birth. This research confirms what transgendered people know and experience on a much more personal basis: being transgendered is not a choice nor a "lifestyle," but a difficult, uninvited challenge.

Who are Transgendered People?

Transgendered persons include pre-operative and post-operative transsexuals, transgenderists (persons living full-time in a gender other than their birth sex with no desire to pursue surgery); transvestites (preferred term: crossdressers, those whose gender expression occasionally differs from their birth sex); "mannish" or "passing" women, whose gender expression is masculine and who are often assumed to be lesbians, although this is not necessarily the case; "feminine" men who are often assumed to be homosexual, although they are just as often heterosexual; and intersexed persons, whose sex was arbitrarily assigned after birth and who often manifest physical characteristics, expression or identity that differs from the sex assigned without their consent.

Are Transgendered People Gay?

Most people do not understand that gender identity and sexual orientation are two different aspects of human sexuality. Gender identity involves a person's internal sense of being male or female, whereas sexual orientation involves those to whom one is attracted. Transgendered people have the same range of sexual orientations as non-transgendered people: most are heterosexual, and a smaller percentage are homosexual or bisexual. Despite this reality, transgendered people are almost universally perceived to be homosexual simply because of their appearance, which is often that of a masculine woman or a feminine man. Because this perception is so pervasive, transgendered persons are particularly subject to targeting by people who are obsessed with gay and lesbian stereotypes, and often cannot escape such targeting by adopting a "straight" appearance.

How are Transgendered People Discriminated Against?

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Denial of an opportunity to make a living is the single most damaging and pervasive form of discrimination against transgendered people. Even more systematically than lesbians, gay men, and bisexual people, transgendered people are routinely targeted for work place discrimination and almost universally unprotected under existing laws. There are few transgendered people who not have experienced loss of employment, denial of employment, or underemployment solely because of their transgendered status. For transsexual people in particular, initiating the process of gender transition frequently means permanent loss of a profession or career. In addition to the impact on individual transgendered people and their families, this discrimination has a tremendous social and financial cost. Because so many transgendered people are excluded from employment, transgendered people are disproportionately driven into poverty and/or unwanted dependence on public assistance. Transgendered people also confront many related forms of

discrimination, including denial of basic civil rights and protections in housing, public accommodations, and health care. Transgendered people are also frequent targets of hate crimes: verbal threats, hate mail, harassing telephone calls, and acts of physical and sexual violence committed by the same persons who target lesbian, gay, and bisexual people.

If They Keep Their Difference Private, How Can They Be Victimized by Discrimination?

Like most gay men, lesbians and bisexual persons who keep their sexual orientations private, the vast majority of transgendered persons also strongly desire to keep their transgendered status private. Like gay men, lesbians and bisexuals, transgendered people are also vulnerable to their sexual minority status being revealed against their will, i.e., being "outed". But unlike many lesbian, gay, and bisexual people, most transgendered people, at least at some point in their lives, possess physical or behavioral characteristics that readily identify them as transgendered.

As a result, transgendered people are much more likely to be visible targets and to fall victim to discrimination.

What are the Different Types of Transgendered People?

The term 'transgendered" describes several distinct but related groups of people. Numerically, the largest subgroup of transgendered persons are thought to be crossdressers who are mostly heterosexual men, although there are also women who crossdress. Apart from their occasional crossdressing, they lead lives that are quite ordinary in all other respects. Most crossdressers are married and many have children, so they have much to lose if their transgendered status is revealed. They also wish to remain in the sex they were born, unlike transsexuals. Transsexual and transgenderist (non-operative transsexual) persons differ from crossdressers in that they come to feel they can no longer continue to live their lives in the gender associated with the physical sex they were assigned at birth.

Why do they feel that way?

The overall psychological term is called gender dysphoria, an intense feeling of pain, anguish, and anxiety from the mis-assignment of sex at birth. All transgendered people suffer from it, but the feeling is more acute for transsexuals and transgenderists. Some transsexual and transgendered people are unable to live in the gender of their assigned sex from a very early age.

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the cost of intense suffering and distress, until sometime in their adulthood, usually in the middle of their lives. In order to seek relief from their gender dysphoria, transsexual and transgenderist persons enter gender transition, where they begin living their lives in genders that are congruent with their self-identity, which are opposite their birth sexes. This means they literally must "out" themselves to their employers, their families, their friends, everyone.

Why is that Necessary?

Since gender is a visible and ubiquitous aspect of anyone's life, gender transition is impossible to hide. For transsexual persons seeking sex-reassignment surgery, this transition also marks the beginning of a medically mandated "real life test." During this minimum one-year period, they must be able to demonstrate their ability to successfully live and work full-time in their congruent gender. This is an absolute prerequisite for sex reassignment surgery (SRS), the only known relief from the intense, physical gender dysphoria of transsexual people. The crucial importance of this period to a transsexual person is impossible to overstate: it is literally life or death. It is also when most transsexual persons are most vulnerable to discrimination, harassment and violence. But even after gender transition and living a gender-congruent life, a transsexual or transgenderist is still vulnerable to discrimination if their past sex status is revealed.

Aren't Transgendered People Already Covered Under Existing Laws?

Under existing case law, the courts have found that transgendered people are not covered under existing statutes protecting persons based on sexual orientation, personal appearance, or sex. Transgendered people were not included in the American's with Disabilities Act of 1991 and also are not covered under existing disability laws in most states. Both state and federal courts have uniformly held that transgendered people are outside the legal definitions and protections of existing anti-discrimination laws.

What does the The Gender Community Propose?

We are seeking an amendment which would add gender identity as a protected category to the Employment Non-Discrimination Act when it is reintroduced in the 105th Congress. Transgendered people are more vulnerable to discrimination and violence on the basis of perceived sexual orientation than any other group. The omission of transgendered people in ENDA will send the dangerous message that transgendered people do not need or deserve protection from this form of discrimination, as well as isolating transgendered people as the unprotected targets of continued discrimination for years to come. Including transgendered people is essential to ENDA's moral integrity.

What Other Jurisdictions Have Such Protection?

The State of Minnesota has a law which forbids discrimination based on sexual orientation, which is defined to include transgendered people. The cities of Santa Cruz, Berkeley and San Francisco, California; Seattle, Washington; Cedar Rapids and Iowa City, Iowa; and Minneapolis-St. Paul, Minnesota, all have municipal ordinances that specifically protect individuals from discrimination based on their gender identity or expression. The Australian province of New South Wales also prohibits discrimination against transgendered people, and the European Court of Justice has found such

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discrimination to be illegal under existing laws.

Would This Legislation Force Employers to Pay for Sex Reassignment Surgery?

No, it would not. Most transgendered people do not want to change their anatomical sex, but for those that do, having a job that will enable them to save money for the procedure is absolutely essential. By including protection for transgendered people in ENDA, this amendment will legally afford them only their basic rights to fair employment. Securing and safeguarding the right to discrimination-free employment would greatly ameliorate the already difficult, complex lives of transgendered persons.

Like other ordinary citizens, transgendered people want to lead normal lives and to be employed. They do not want to live in poverty, on unemployment or general assistance, or to be forced into prostitution in an attempt to survive. They want to live their lives quietly, without fear of discrimination, harassment and violence, just like all other citizens of this country.

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