Being transgender, transsexual, & gender identity
Governmental discrimination &
lack of protection for transsexuals
Discrimination of sexual minorities, like homosexuals and transsexuals, can
take many forms: rejection, ridicule, hatred, firing from a job, rejection of
accommodation, expulsion from the family, lack of medical care, harassment, physical violence, organized efforts to restrict their civil and human rights, and
Various federal Employment Non-Discrimination Acts (ENDA)
proposed between the mid-1970's until 2009 to end discrimination against
employees on the basis of their sexual
orientation and gender identity. All previous bills have died without becoming
law. The current bill H.R. 3017: "Employment Non-Discrimination Act of 2009,"
has little chance to succeed.
Map showing states protecting LGBT persons. Prepared by the National Gay and Lesbian Task Force:
16 states and the District of Columbia with anti-discrimination laws based on sexual orientation and gender identity/expression.
5 states banning discrimination based on sexual orientation.
Note the complete lack of laws in the American South, and the near complete absence in the mid-west.
Lack of protection in federal law:
Shannon Minter of the National Center for Lesbian Rights wrote in
There is no federal law that prohibits discrimination against transgender
individuals, and Minnesota and Rhode Island are currently the only
states with such laws. Outside of these states and the approximately 50 cities
and counties that have enacted local non-discrimination statutes, there is
generally no established legal recourse for anti-transgender discrimination in
employment, housing or public accommodations." 1
Gay & Lesbian Advocates & Defenders
(GLAD) reported in mid-2008:
"In New England, only Rhode Island, Maine,
and Vermont provide explicit laws that prohibit discrimination against
transgender people and only Vermont and Connecticut have passed hate crimes laws
that protect trans people. At the federal level, there are no laws explicitly
protecting transgender people in any context." 2
GLAD added the term "gender identity and
expression" to its mission statement in 2001. In mid-2008, they announced the
launch of their Transgender Rights Project, led by attorney Jennifer
Levi. She is a Professor of Law at Western New England College. She
also serves on the Legal Committee of the World Professional Association for
Transgender Health, and is a founding member of the Transgender Law &
Policy Institute and the Massachusetts Transgender Political Coalition.
"Transgender people face the most basic and blatant discrimination every day,
but we still don't have the best legal tools to fight back. With this project,
GLAD can put its legislative, litigation, and educational assets to work in a
focused way. One of the key goals of the project is to establish some clear,
affirmative protections for the community. Courts often refuse to extend sex
discrimination protections to transgender people. And while state-level
disability laws have sometimes been effective, transgender people were
explicitly excluded from the federal Americans with Disabilities Act. And not
all transgender people easily fit within the framework of federal disability
A major step forward in the protection of transgender persons and transsexuals was achieved on 2009-OCT-28 after over a decade of failed attempts. A bill passed by Congress was signed into law to augment the existing hate crimes bill. Every person in the U.S. is now protected from being the victim of a hate crime in eight separate ways, on the basis of their: race, color, religion, national origin, gender, disability, sexual orientation and gender identity.
An important legal case: O'Donnabhain v. Commissioner of
Rhiannon O'Donnabhain, 64, is a male-to-female (MTF) transsexual who was diagnosed with gender identity disorder. (This is now an obsolete term, now referred to as Gender dysphoria). She spent
over $25,000 on successful gender reassignment surgery (GRS) in 2001. She later claimed a
$5,000 deduction on her income tax which the Internal Revenue Service
rejected. They classified GRS as being essentially cosmetic in nature and thus
not eligible under tax law. They claim that GRS mainly changes the body's
appearance, not its functionality. They ruled that Gender Dysphoria is neither a disease or
an illness as defined in the tax code.
Marshall Forstein, associate professor of psychiatry at Harvard Medical School, made a slightly caustic comment directed against the IRS:
"When did the IRS suddenly become physicians? It's absolutely clear that transgender identity is a condition discussed in diagnostic manuals. It seems the IRS is now in the business of practicing medicine without a license." 6
Bennett Klein, a GLAD lawyer representing O'Donnabhain commented:
"If you have bunions on your feet and it makes it hard for you to walk, that's covered, but something as broad-based as gender identity disorder is not?" I think what's clear here is that the IRS is making a political decision on what should have been an obvious medical deduction. You can't set different standards for a person's health; IRS agents should not be in a position of second-guessing health-care professionals." 6
During her trial in 2008-JUL, she explained that she had experienced
Gender Dysphoria from childhood. She said: "It was horrible.
Absolutely horrible. I was thinking suicide was probably the only way out of
this." In 2001, she underwent GRS to have her male genitals removed, a vagina
constructed, and her breasts augmented. She credits the surgery with saving her
life. She believes that the IRS is biased against her case, and cites as proof
the IRS' decision to also deny her a deduction for the therapy that she underwent to
treat the Gender Dysphoria.
She said: "It's a Catch-22. I have to accept the stigma of being labeled as
having a disorder [or] a mental condition in order to get benefits. I haven't
liked this diagnosis from the very beginning. But I've got to play the game."
Her attorney, Karen Loewy, said: "It's really astonishing that the IRS is
taking a position that they get to second-guess the determinations of a
taxpayer's medical care providers. The medical community gets to decide what is
medical care -- not the IRS." 3
On 2010-FEB-02, the U.S. tax cort ruled that Rhiannon was allowed to deduct her GRS medical expenses, including both her sex-reassignment surgery and hormone treatments. The court said that the ruling bythe IRS was:
"... at best a superficial characterization of the circumstances ... [that is] thoroughly rebutted by the medical evidence."
Other legal cases:
Since transsexuals lack protection in law,
many have turned to the courts to seek equal rights:
||Prison inmates have sought GRS and hormone treatments as part of their
||Students from kindergarten to college have been asked to be treated
according to their perceived gender and to be called by their new name and
appropriate pronoun -- "her" or "him."
||Some MTF transsexuals have entered into a loving committed relationship
with men, have applied for marriage licenses, and been refused because the
state viewed them as a same-sex, male-male, couple. They regard themselves as
an opposite-sex couple.
||Some transsexuals have sought permission to use public washrooms reserved
for their perceived gender.
The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.
Shannon Minter, "Legal and public policy issues for transgender elders,"
National Center for Lesbian Rights, 2003, at:
"GLAD launches transgender rights projects," GLAD, 2008-JUN-18, at:
Tovia Smith, "Transgender woman, IRS fight over tax deduction,"
National Public Radio, 2008-OCT-16, at:
Text of H.R. 3017: "Employment Non-Discrimination Act of 2009," GovTrack at:
O'Donnabhain v. Commissioner," Wiipedia, on 2010-NOV-17, at: http://en.wikipedia.org/
Anthony Faiola, "Woman suing IRS over sex-change tax claims," Washington Post, 2007-OCT-01, at: http://www.washingtonpost.com/
State nondiscrimination laws in the U.S., National Gay and Lesbian Task Force, 2012-JAN-201 at: http://www.thetaskforce.org/ This is a PDF file.
Copyright © 2007 to 2011 by Ontario Consultants on Religious Tolerance
Original posting: 2007-JUN-08
Latest update: 2011-APR-22
Author: B.A. Robinson