Yesterday was our second annual Transgender Law Institute at the National LGBT Bar Association conference, with 60 registrants. I was a little nervous yesterday morning, as my morning intro wasn't quite prepared. Last minute Sally, that's me. But it all went fine, I think, and although my feet were killing me by the end of the day and I was jet-lagged to the max, was happy as a clam to share a wonderful dinner with the guys at the end of the day.
They're the most amazing bunch, by the way, and so handsome, might I add? I just had to attach a picture. They're all superstars. Left to right, Seth Marnin, at the amazing NYC law firm of Outten and Golden; Shannon Minter, legal director of NCLR, who has represented, among others, Michael Kantaras in his battle to retain custody of his children, successful at trial, but then sandbagged by a conservative Florida Supreme Court; in the back, with the big smile, Dru Levasseur, who's at Lambda Legal and won an award from the bar association this year as one of the Best Lawyers under 40; Dr. Jamison Green, who hardly needs an introduction, being one of our most highly-regarded advocates, but also, it should be noted, to be congratulated as a newly minted Ph.D in Law, now at SFSU's highly-regarded National Sexuality Resource Center; on the right, with the black and white striped shirt, Michael Kantaras, who was recognized with a Pioneering Parent award from the bar association for his courage and dedication to his children in the face of an unjust legal system.
In preparation for yesterday's Institute, I had downloaded all of the year's legal decisions from Lexis, and had reviewed them, but the last thing I wanted to do was to deliver a boring recitation of case law. In addition, there were a number of legal developments that hadn't shown up in the case law, and I wanted to include those too. Although most of the attendees had a pretty good grasp already of many of the developments, and a number of attendees are super-experts in areas of trans law before whom I must bow my head, I suspected that there was too much going on in this area of law for everyone to know everything that happened in the last year.
That, in and of itself, is a milestone, because it shows that trans issues are no longer being completely ignored in the law. I remember when I wrote my first law review article on trans law, back in 2000, that there were few cases, and they all seemed to be named "In re Anonymous." It wasn't hard to keep all of the past case law from the 20th century's in one's head, or on an index card. But now, there were at least fifty developments in the last year.
So rather than a detailed recitation, I decided on listing the highlights. However, mindful of the audience, many of whom were the ones who tried the cases and wrote the statutes and regulations, I made it clear that the presentation was an audience participation discussion, noting that I would probably get a lot of the details wrong. And I sure did, and I missed a bunch of major stuff too. Thank goodness I was talking to people who weren't shy about jumping in, and I was happy to supplement my list.
Here's my list of the 2011 highlights in U.S. trans law, not in order of importance. I have more to say about our day yesterday, but saving that for another post. Do you have anything to add about the year in trans law?
Sexual orientation is declared to be a suspect class in law, entitled to heightened scrutiny by judges regarding constitutionality (and, by extension, gender identity)
Housing regulations by HUD, prohibiting gender identity discrimination in HUD-financed housing
Passport regulations permitting change of sex with a doctor's letter, but not requiring surgery, and also permitting change of sex on COBRAs (Consular Reports of Birth Abroad, which is a birth certificate for US citizens born outside the states)
A Veteran's Administration directive requiring respectful treatment of transgender veterans in health care settings
A survey by HHS health survey that will include questions about transgender and transsexual people
Vermont's law permitting change of sex on birth certificates without surgery, and partial settlement of a court case brought by the ACLU in Illinois with the same result (though the case is not yet over).
The American Association of Motor Vehicle Administrators recommended that all states allow change of sex on drivers licenses
Non-discrimination state laws in CA, CT, NV and HI
The 7th Circuit Fields decision finding unconstitutional the Wisconsin law prohibiting GID treatment for transgender and transsexual inmates
The Massachusetts Battista decision finding the state prison's failure to treat an inmate's GID to violate the Eighth Amendment
The Maine Denny's decision, permitting use of the appropriate restroom by a trans patron under the state's public accommodations non-discrimination law.
The rejection by the Maine legislature of a bill that would have prohibited trans people from making a complaint to the courts about inappropriate bathroom requirements.
Marriage equality in New York
The Pratt decision from the NY federal courts holding sex stereotyping claims legally cognizable under Title IX (the federal education non-discrimination law).
The settlement in the Philadelphia Youth Study Center case, where a young trans person had been unmercifully bullied for over a year
The Amber Yust settlement, where a trans woman who applied for a new drivers license received a horrific letter from the ultra-religious DMV clerk, who suggested she was going to hell
The Ashely Yang settlement, where a trans employee of TSA was subjected to sexual harassment and discrimination, resulting in sensitivity for all TSA employees at that California facility
The Wilson v. Phoenix House settlement, which permitted a lawsuit to go forward where a trans person in a court diversion program was excluded from participation in a supposedly "gay-friendly" women's rehab program and re-incarcerated by vindictive Phoenix House employees
The investiture of two trans judges, Hon. Phyllis Frye of Houston, Texas, and Hon. Victoria Kolakowski of Alameda County, California.
The settlement of the Lana Lawless case, where a trans woman had been denied participation in the LPGA
The Adams lawsuit against the Federal Bureau of Prisons for failing to permit treatment of GID survived a motion to dismiss, and the case is pending.
The settlement with the Tehachapi Unified School District in California, requiring them to respond to bullying, after the death of a student, Seth Walsh.
The federal Office of Personnel Management regulations prohibiting discrimination based on gender identity. Several other agencies are moving to adopt similar regulations.
Student anti-bullying laws in Arkansas, Connecticut, Colorado and Rhode Island
There were some victories that occurred in custody cases involving trans parents that must remain anonymous because the prevailing social and legal climate is such that public disclosure of the victory could result in legal harm.
The high number of murders perpetrated against transgender, transsexual and gender-non-conforming individuals, and the problems with getting police to acknowledge hate-crimes status
The high unemployment and underemployment rate among trans people, due in large part to employment discrimination
The mistrial in the Lawrence King murder case, in which some members of the jury decided that the obviously premeditated murder of a gender-non-conforming 14 year old was less culpable because of his sexual orientation and gender expression.
Several shootings and murders of trans people in the nation's capital, including a shooting by a police office.
The failure to advance the federal Employment Non-Discrimination Act because of dithering by Congress and the Administration
The languishing of state non-discrimination bills in New York State and Massachusetts
The ending of the anti-gay military Don't Ask Don't Tell policy, but nothing done for transgender military service personnel
Anti-trans Social Security Administration policies, not permitting change of sex on Social Security Accounts without proof of surgery, the continued issuance of "no-match" letters outing trans employees, and questioning of all marriages involving trans people
Use of airport body scans in such as way as to out transgender people and potentially subject them to harassment
The Fischer v. Experian case, in which a federal court decided that credit reporting agencies can out trans people by revealing former names and sex markers.
A decision in Maine saying that school administrators cannot be required to allow trans youth to use the appropriate bathroom (although someone mentioned there was a positive outcome of this as well, but for the life of me I can't remember what it is)
The Louis v. Bledsoe decision, in which a federal court decided that placement of trans inmates who express fear of rape in the "Special Management Unit," where the most dangerous inmates reside, is an appropriate placement
The placement of a Philadelphia trans inmate, Jovanie Saldana, into a men's prison after she complained about sexual assault by a corrections officer
The decision by a Texas court that the marriage of Nikki Araguz was void
The Tennessee law prohibiting local non-discrimination ordinances
In Michaels v. Akal Security, the federal District Court in Colorado decided that the refusal to permit appropriate bathroom usage by a trans employee was not discriminatory conduct under Title VII.
NJ Devereaux discrimination lawsuit by a trans man hired to act as a urine monitor.
New York, and Illinois lawsuits regarding change of sex on birth certificates, and one in Alaska re change of sex on drivers licenses
The Tikkun suit in NYC challenging NYPD search techniques used for purposes of assigning gender
The New Orleans Doe v Jindal suit challenging the use against trans people of the "crime against nature" statute as a means of enhancing prostitution charges from a misdemeanor to a felony with jail time and sex offender registration.
Oregon lawsuit on behalf of a trans public employee denied trans health benefits
The Adams lawsuit against the Federal Bureau of Prisons for failing to permit treatment of GID