Transgender Laws in the United States

U.S. History has been marked by continual efforts to expand the inclusiveness of civil rights. While we have made strides in gender equality and gay rights, we have a long ways to go. Presently, transgender rights are at the forefront, with celebrities like Caitlyn Jenner and Laverne Cox who have brought transgender issues to the collective consciousness like never before.

Even though we are beginning to recognize the transgender community, we are far from recognizing broad legal rights for those who identify as transgender.

The United States is behind three European countries that not only recognize transgender issues as the next civil rights movement, but also provide comprehensive legal rights for those who identify as transgender. Denmark, Malta, and now Ireland allow transgender people over the age of 18 to change their legal gender without medical or state intervention. Changing one’s legal gender is a huge progress for the majority of European countries, many of whom require transgender individuals to undergo surgery and sterilization, or be diagnosed with a mental disorder, and get divorced if married, to have their desired gender recognized legally.

Who Is Transgender?

A transgender person is a person whose internal sense of him or herself is different than the gender assigned at birth. It is different than one’s sexual orientation, or who a person is attracted to. In that regard, sexual orientation relates to whether a person is gay, lesbian, heterosexual, or bisexual. Just because a person is transgender does not also mean that he or she is gay or lesbian. 

Approximately seven-hundred thousand people identify as transgender in the United States. A recent study showed that a staggering 41% of transgender people in the United States have attempted to commit suicide, compared with 4.6% of the general public.

How Does the United States’ Transgender Laws Compare?

Eighteen states and the District of Columbia have protections for transgender people, but their protections vary. For instance, Colorado, Illinois, and Minnesota ban discrimination based on sexual orientation, and defines “sexual orientation” to include gender identity. A number of states protect transgender students from discrimination or harassment in public schools. Nevada bans discrimination in employment, housing, and public accommodations such as retail stores, restaurants, and hospitals.

Additionally, there are federal laws which protect transgender people against housing and employment discrimination. In 2012, the U.S. Equal Employment Opportunity Commission ruled that discriminating against someone because that person is transgender is a Title VII violation. Similarly, the U.S. Department of Housing and Urban Development finds discrimination against transgender tenants or home buyers illegal sex discrimination under the Fair Housing Act.

While there are laws which protect transgender people from discrimination, there is no current law similar to Denmark, Malta and Ireland’s that allow transgender people to change their legal identification without intervention. Although one can easily change his or her name in any state, it is much more difficult to change the name on one’s birth certificate, which requires a court order. Changing the gender marker on one’s birth certificate is even more difficult. In the majority of states, it requires proof of surgical treatment to change one’s sex. Some states, including California, Oregon, New York, and Washington, allow one to change the gender marker on their birth certificate with proof of appropriate clinical treatment, even if no surgical treatment is sought.

Even if one changes their gender marker on their birth certificate, it does not mean that one’s sex is legally changed. There are some cases involving marriages in the United States before same-sex marriage was legalized where the court ignored the corrected birth certificate and decided the marriage was invalid. Now that same-sex marriage is legal, the gender marker on one’s birth certificate for these cases is immaterial.

The United States does not allow transgender people the same opportunity to change their legal identity without medical intervention. Ireland’s bill that afforded the transgender community this legal right was passed months after Ireland legalized same-sex marriage by popular vote. It stands to reason that because same-sex marriage is now legal in the United States, we may soon be following suit to expand transgender rights.

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