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The following is the latest revision to the Legal Aspects pamphlet distributed at cost
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J2CP is a non-profit education and information service providing referrals and help to the gender conflicted community and interested professionals. J2CP is operated by Sr. Mary Elizabeth under the auspices of the Sisters of St. Elizabeth of Hungary, a ministry to the dispossessed, including the gender conflicted. Donations to assist this effort, or to cover costs of information packets, are fully tax-deductable if directed to the Sisters of St. Elizabeth and designated for J2CP. The address is the same P.O. Box as for J2CP.
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We as a community can only help ourselves by supporting the free distribution of the facts we need to help ourselves. Your support *will* be appreciated.
--Tara Drennen 26 Nov 1988]
LEGAL ASPECTS OF TRANSSEXUALISM
by Sr. Mary Elizabeth, SSE
(c) 1988 J2CP Information Services, P.O. Box 184, San Juan Capistrano, CA 92693-0184
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Everyone who sets out on the arduous and
uncertain journey toward sex change bumps into legal questions, usually by the bushel. And
to many of these questions there are as yet no clear-cut answers, because the field is
still new and the picture is constantly changing--not just from year to year but from week
to week, as court cases and government decisions continue to build a body of precedent.
The field is also very small, encompassing a minuscule segment of the population, so that
few lawyers ever have reason to familiarize themselves with the complex legal problems
that confront transsexuals. Where, then can you turn for guidance on this route?
There could be no happier answer to that question than the little book you are now holding in your hands, which has been thoroughly revised and updated almost to the moment of publication. Its author, Sr. Mary Elizabeth, is without doubt one of the nation's most knowledgeable experts on the subject. In this legal primer for transsexuals she has clarified and compressed an astonishing amount of helpful information. From A (for Armed Services) to V (for Vocational Rehabilitation), you will find precisely the directions you need for the dozens of situations you may face in your daily living--changing your name, coping with discrimination on the job, handling yourself during a police interrogation when you are cross-dressed, to mention a few.
As director of Confide, it has often been my privilege to work with Sr. Mary Elizabeth on projects concerning transsexuals. And I have been unfailingly impressed by the speed, energy and alloutness of her response to any appeal from a transsexual in distress. Certainly the cause of transsexualism has never had a more effective legal champion. Sr. Mary never hesitates to take on an employer, a jail, a court, a legislature or the federal government itself when she feels there is an injustice to be righted. And her zeal is backed up by an encyclopedic knowledge of case law that commands attention even in the halls of power.
This book is a distillation of that knowledge. It is a book of straight answers. Here you will learn what's legal, what's illegal and what lies in the gray area between. Here you will find an abundance of tips and caveats to help you chart your way through the legal jungle, along with clear directions on how and where to obtain further specifics. It is a book I commend to you at every stage of your journey across the perilous chasm that separates the sexes.
Garrett Oppenheim, Ph.D., Director CONFIDE--Personal Counseling Services, Inc.
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Descriptions from classical mythology, classical history, Renaissance and nineteenth-century history plus cultural anthropology point to the long- standing and widespread pervasiveness of the transsexual phenomenon. These descriptions were generally hidden away in historical or scientific documents, unavailable and of little interest to the general public.
This situation changed in late-1952, however, when transsexual (sex reassignment) surgery burst publicly upon the world. On December 1, 1952, the New York Daily News carried the banner headline, "Ex-GI Becomes Blonde Beauty." For the next few months transsexualism became a household topic as story after story was published. Eventually interest in the subject dwindled and one-time front page stories were lost within the inner pages of the tabloids.
Few articles appeared during the period 1954 to 1976. Those that did seldom rated front-page space. During the summer of 1976, however, the world of professional tennis was disrupted by the controversy surrounding a player who had undergone sex reassignment and subsequently desired to play professional tennis as a woman. The controversy once again sparked the nation's curiosity concerning transsexualism and, during the following months, numerous maga- zine articles, newspaper reports, and television programs dealt with the scientific phenomenon of a "female mind trapped in a male body" or vice versa.
Interest in transsexualism would have dwindled once again, had it not been for a seemingly endless series of newsworthy stories involving transsexuals, such as "Transsexual Wars With The Army" and "Sex Changed Teacher Seeks Job Back." Further, the courts were suddenly alive with transsexual litigation; the common denominator in each being a persistent pattern of severe discrimination.
Systematic medical treatment of transsexualism was initiated in the early- fifties by Harry Benjamin, a prominent New York endocrinologist. The first gender clinics opened during the 1965-67 period at Johns Hopkins Medical Institutions, the University of Minnesota, and UCLA (University of California Los Angeles).
Professionals involved with these clinics realized early in their research that differential diagnosis would be difficult and controversial. Consequently, international symposiums were established to resolve many of the issues surrounding the treatment of transsexualism. International symposiums have since been conducted in London (1969), Denmark (1971), Yugoslavia (1973), Stanford (1975), Norfolk (1977), San Diego (1979), Tahoe (1981), Bordeaux, France (1983), Minneapolis (1985), and Amsterdam (1987).
By 1976 it was clear that transsexualism was no longer seriously questioned as an accepted medical entity. And, in 1979, a professional subspecialty group (The Harry Benjamin International Gender Dysphoria Association) was formed during the Sixth International Interdisciplinary Symposium on Gender Dysphoria, with minimum standards subsequently being established for the treatment and care of gender dysphoria patients.
Today, some 30-plus years since becoming front-page news, gender dysphoria syndrome is described thoroughly in the literature. The literature suggests that: (1) The causes remain unknown; (2) pre-surgical transsexuals as a group are among the most miserable of people, often exhibiting extreme unhappiness which frequently brings them to the verge of suicide or self-mutilation, and (3) a satisfactory outcome to sex reassignment surgery, in terms of improved social and emotional adjustment, is at least 10 times more likely than an unsatisfactory outcome in properly selected patients.
The literature describes the problem of transsexualism as a disturbance of gender identity, where individuals experience a sense of incongruency between their psychological sex and their anatomic sex. Other disturbances described, but frequently confused with transsexualism, include homosexuality and transvestism. They are, however, actually distinct from it. Homosexuals, who are sexually attracted to members of their own sex, and transvestites, who occasionally dress in clothes of the opposite sex, experience conflicts which are only superficially similar to transsexualism. Unlike the transsexual, they do not desire to alter their anatomy. The transsexual, in sharp contrast, feels trapped in a body of the wrong sex and seeks release; either through skilled surgical intervention, or through what ever means--including suicide--available to effectively escape.
The literature indicates a consistent trend towards rejection by both family and friends, harassment and/or discrimination in varying degrees by most of society, and more often than not, a refusal by many in the legal and medical professions to render services; either by reason of questioning the validity of such a diagnosis, or perhaps fear of potential peer and/or community sanctions.
Additionally, it is clear from the literature that the causes of transsexualism are disputed among professionals; most of the controversy focusing on whether the etiology is psychogenic or organic. Money and Ehrhart suggest that a fetal metabolic or hormonal component may predispose a person toward gender confusion. Block and Tessler discuss an endocrine theory which assumes that chromosomal sex and endocrine do not always correspond, and Seyler and associates have demonstrated that the response of female transsexuals to diethylstilbestrol (DES) and luteinizing- releasing hormone (LRH) was intermediate between the female and male patterns, suggestive that a biological component is present.
Virtually countless theories abound, with research failing to wholly support any one position. The result is that most professionals accept the theory that best corresponds with their own personal background, education and clinical experience.
Adding to the controversy is a lack of
standardized criteria to determine the presentation of true transsexualism; the diagnostic
process being one of inference and the ruling out of other disorders. Definitive
diagnostic tools such as standardized physical or psychological tests are simply
On the other hand, there is considerable indication that experienced practitioners are finding methods to accurately differentiate primary from secondary transsexualism and predict outcomes. Extensive patient histories, psychometric testing and psychiatric evaluations program intake, mid- transition (following initiation of hormone therapy and full-time living in the gender-role of reassignment), and just prior to surgery are used to monitor patient progress and adjustment/suitability for sex reassignment surgery. Coupled with this evaluative process is the real-life test, extending from one- to two-years, supplemented by private or group therapy to resolve non-gender related emotional problems, etc. and develop realistic patient expectations prior to surgery. Despite the controversy about transsexualism, the literature on the subject does reflect some recurrent themes. First, each individual's gender identity is well established by early childhood. Second, transsexualism usually manifests before puberty, and once the pattern is established, it is highly resistant, if not impossible, to change. Third, true transsexuals do not respond to psychotherapy, rejecting this mode of treatment because they see their problem as physical and the solution as surgical, not psychiatric. Consequently, therapy aimed at other than sex reassignment has consistently failed, rendering self-castration or suicide a real risk. Fourth, transsexuals suffer from a distinct gender disorder of unknown etiology that is capable of amelioration, if not cure, uniquely through sex reassignment. Fifth, as might be expected, surgical complications are more frequent when individual surgeons or surgical teams are making their initial attempts at vaginal construction. As experience of each group develops, the complications may be largely reduced eliminated. Sixth, sex reassignment, while often treated as cosmetic in the literature, has consistently been deemed non-cosmetic and, in the majority of cases, medically necessary by the courts.
Despite the generally favorable non-cosmetic and medically necessary judicial decisions, the American judicial system has failed to keep pace with medical and scientific advances, particularly in the area of gender dysphoria syndrome and transsexualism. This failure is aptly demonstrated by a diversity of decisions, rendering the transsexual vulnerable to discrimination in a variety of socio-economic contexts, especially in the areas of civil rights and health care. This vulnerability was clearly described in a recent article by Tim Alger, wherein it was stated that "[t]here [are few] provisions for transsexuals under the law. They're kind of left out there, hanging in space. Each time they go into court, depending on the empathy of the judge, it is unknown how they will be treated."
There can be little doubt about the complexity of the socio-legal problems surrounding the transsexual. The newness and limited size of this field makes research difficult. Furthermore, more often than not, the professional may find that once a body of information has been accumulated, it may well fail to provide an answer to the question which motivated the research. On the other hand, few fields of endeavor offer more challenge.
Lawyers, legislators, and judges need to better understand the human condition as it relates to gender dysphoria syndrome, in particular transsexualism. For only through this group of professionals can the advancement of equal rights and equal protection under color of law be attained.
Every member of society, regardless of race, national origin, religious belief, sex, sexual orientation, or sexual status (transsexual, hermaphrodite, etc.) should be entitled to be judged and to live under a government of laws, free of prejudice and the weakness of a government of men or women acting without laws to regulate their treatment.
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The United States military's long standing employment policy of discriminating against transsexual individuals is somewhat ironic insofar as the federal government is generally regarded as being in the fore-front of liberal, nondiscriminatory employment policies. Present military regulations, however, bar appointment, enlistment, and induction of those individuals who have undergone sex reassignment and disclosure of one's desire for sex reassignment can be grounds for immediate dismissal. This discrimination has particularly far reaching effects because a transsexual person denied appointment, enlistment, or induction into, or dismissal from, the military for transsexualism can encounter severe problems in subsequently locating employment in the private sector. It has, in effect, the potential for fixing upon the transsexual "an official defamation of character."
Additionally, it should be noted, that service members becoming romantically involved with transsexual individuals, are subject to potential dismissal. The effect of such a dismissal could, potentially, be no less damaging than a dismissal for transsexualism.
Appointment, Enlistment, and Induction
The specific disqualifying regulation, common to all service branches, which bars appointment, enlistment, and induction of those individuals who have undergone sex reassignment, reads:
Section IX. GENITOURINARYSYSTEM
The causes for rejection for appointment, enlistment, and induction, are--
a. Major abnormalities and defects of the
genitalia such as a change of sex, a history thereof, or complications (adhesions,
disfiguring scars, etc.) residual to surgical correction of these conditions.
The Department of Defense's rationale in implementing this regulation is based upon the determination that "enlistment of transsexuals would not be in the best interest of the individual or the military service. Transsexuals are not considered psychologically or sociologically suited for military service, and they require continuing sophisticated medical care because of the absence of organs and glands normally present in an individual at birth."
Discharge, Dismissal, Separation
There are no specific regulations that require the immediate discharge, dismissal, or separation of a service member seeking sex reassignment. The vagueness of military regulations utilized in separating service personnel, however, permits easy discharge, dismissal, or separation without cause, especially in the case of service personnel suffering from gender dysphoria syndrome--i.e. transsexualism--or sexually or romantically involved with a transsexual. Consequently, completion of the service contract, without disclosure of one's transsexual feelings, or feelings towards a transsexual, may gain the service member an honorable discharge assignment of an "eligible for enlistment" reenlistment code. An "ineligible for enlistment" reenlistment code can be just as damaging to the individual as a less than honorable discharge.
Boards for the Review of Discharges or Dismissals
The Servicemen's Readjustment Act of 1944, Section 301, as amended, now Title 10 United States Code, Section 1553, directs the Secretary of each military department and the United States Coast Guard, when it is not operating as a service of the Navy, to establish boards for the review of discharges and dismissals of military personnel.
These boards, operating under rules and regulations issued by the individual Secretaries, are authorized to review either on their own motion or upon request the type of nature of discharge or dismissal of former members of the service, except a discharge or dismissal by reason of the sentence of a general court martial. The scope of their [the board] review is to determine whether, under reasonable standards of Air Force, Army, Coast Guard, or Navy regulations and discipline, the type and nature of the discharge or dismissal should be changed, corrected, or modified; and if so, to decide what change, correction, or modification should be made.
The boards have no authority to revoke any discharge or dismissal, to reinstate any person in the military service subsequent to discharge or dismissal, or to recall any person to active duty. Neither do they have any authority to waive discharges to permit enlistment in any of the Armed Forces; to cancel enlistment contracts; to change, correct, or modify any document, other than the discharge, from or to physical disability; or to determine eligibility for veteran's benefits.
The boards may record a recommendation for reenlistment. This recommendation, however, is not binding and Secretarial approval of the board's decision will not constitute endorsement of its recommendation for reenlistment unless so stated by the Secretary.
Application for review of a discharge or dismissal must be made on DD Form 293, and must be submitted within 15 years of discharge or dismissal. Current editions of DD Form 293 may be obtained from the Veterans Administration, or by writing the appropriate Board of Review of Discharge or Dismissal.Boards for the Correction of Military or Naval Records
Public Law 601, 79th Congress, Section 131, the Legislative Reorganization Act of 1946, provides that no private bill or resolution and no amendment to any bill or resolution, authorizing or directing the correction of military or naval records shall be received or considered in either the Senate or House of Representatives. Section 207 of this same Act, as amended (now Title 10, United States Code, Section 1552), however, authorized the correction of military and naval records through boards of civilians established by the Secretaries of each service branch.
The boards may correct any record of their respective service when it is necessary to correct an error or remove an injustice. Further, under this Act, the Secretary of the service branch is empowered to act on dishonorable discharges issued as a sentence of a general court martial.
Application for correction of a military or naval record must be submitted on DD Form 149 and must be submitted within three years of discovery of the error or injustice. Current editions of DD Form 149 may be obtained from the Veterans Administration, or by writing the appropriate Board for Correction of Military or Naval Records.
The medical and constitutional validity of AR 40-501, paragraph 2-14s, was first challenged in the Federal court system in 1978. The initial complaint, cited as Clark v. Brown, et. al. was filed in the U.S. District Court for the Central District of California. The plaintiff, a veteran of 17 years (as a male) U.S. Navy, U.S. Naval Reserve and 22 months (as a female) U.S. Army Reserve service, filed suit alleging a violation of her right to due process and equal protection. The suit was dismissed without prejudice and findings.
The plaintiff subsequently filed a series of in pro per administrative appeals with the Navy Discharge Review Board, the Board for Correction of Naval Records, the Merit System Protection Board, and the Army Board for Correction of Military Records. In mid-1981, the Army Board for Correction of Military Records ruled in favor of the plaintiff, finding that an injustice had occurred, that the plaintiff was entitled to credit for military time served and a honorable discharge. The Board refused to reinstate the plaintiff, however.
Following the Board's finding, in favor of the plaintiff, the ACLU Foundation of Southern California, filed a revised complaint with the U. S. Court of Claims. The revised complaint, cited as Clark v. United States, again challenged the medical and constitutional validity of the preceding regulation, as well as the constitutional validity of a Navy assigned RE-4 (Ineligible for Enlistment) reenlistment code. Prior to setting a date for hearing, however, the Army offered to settle and plaintiff accepted in order to get on with her life.
The second case to come before the courts involving appointment, enlistment, or induction, was Doe v. Alexander, Doe brought suit under civil rights statutes seeking damages and injunctive and declaratory relief with respect to the Army's enforcement of AR 40-501, paragraph 2-14s, following rejection of her application for admission as an officer into the Army Reserve in 1976.
The court evaluated Doe's complaint under the Mindes test and found her claim to be non-reviewable, in that: 1) Plaintiff has no constitutional right to a commission in the Army Reserve; 2) Plaintiff's injury was speculative at best; and 3) The courts are peculiarly ill-equipped to develop judicial standards for passing on the validity of judgments concerning medical fitness for the military.
The third and final case involving a transsexual service member is Leyland v. Orr, et al. Leyland, a 15-year veteran of the U. S. Air Force/Air Force Reserve, made the promotion list to Lieutenant Colonel just prior to undergoing sex reassignment surgery. Following an Air Force Review Board hearing, Leyland was discharged from the service.
Leyland filed suit for mandatory, declaratory and injunctive relief, in the United States District Court for the Southern District of California, alleging the discharge was invalid in that: 1) The discharge hearings violated pertinent procedural military regulations; 2) The administrative review, including the Disposition Board, the recommendations, orders and discharge were arbitrary and capricious and unsupported by substantial evidence; 3) The proceedings violated plaintiff's constitutional right of privacy guaranteed by the First, Fourth, Fifth and Ninth Amendments to the Constitution; 4) The proceedings violated plaintiff's constitutional right of free speech and association guaranteed by the First Amendment to the Constitution; and 5) The proceedings violated plaintiff's constitutional right of substantive procedural due process guaranteed by the First Amendment to the Constitution.
The trial court found that the Air Force had acted in an arbitrary and capricious manner in handling the matter. The court failed to rule on what should be done, however, referring the matter back to the parties for resolution.
Leyland appealed to the Ninth Circuit Court of Appeals. The court ruled that discharge of a member of the USAF reserves on ground of physical unfitness after sex reassignment surgery did not violate regulation requiring individual assessment of evaluee's ability to perform before removal for medical reasons, given expert testimony that sex reassignment invariably impairs ability to perform.
A fourth case, Von Hoffburg v. Alexander, involved a non-transsexual service member and her marriage to a female-to-male transsexual. Plaintiff Marie Von Hoffburg was honorably discharged from the United States Army because of her alleged homosexual tendencies.
During pre-discharge procedures, the Army
elimination board found that plaintiff's husband, Kristian Von Hoffburg, was a
psychological female-to- male transsexual but biological female. The board further opined
that the intent of AR 635-200 is to define the sex of a person in the biological sense. As
such, the board recommended that the plaintiff be discharged from the service because of
homosexual tendencies. Plaintiff was subsequently discharged.
Plaintiff filed suit just prior to her discharge, seeking a declaratory judgment, injunctive relief and monetary damages. The United States District Court for the Middle District of Alabama dismissed the complaint without prejudice because plaintiff had failed to exhaust her administrative remedies.
Upon appeal the 5th Circuit Court of Appeal held that: 1) The plaintiff must exhaust her administrative remedies prior to seeking judicial review of her honorable discharge from the Army; and 2) Plaintiff's claim for monetary damages cannot be satisfied by the available administrative remedies; she must resort to the courts for that form of relief. Finally, the Appellate Court remanded the case back to the district court with directions to vacate the order of dismissal of the claim for monetary damages, but hold the claim in abeyance pending the administrative resolution of plaintiff's remaining claims.
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Sex discrimination in employment may be either overt or covert. Overt discrimination exists where specific personnel policies deny equal employment opportunity basis on sex. Such policies may include establishment of different job qualifications for men and women performing identical or similar functions as other men or women, advertising job openings for men only or women only, or specific exclusion of transsexuals from employment opportunities.
Discrimination against transsexuals is
generally, but not always, based on:
-Presence might have a potentially adverse affect on co-workers and customers.
-Disruption of office-routine because employees threaten to quit if transsexual allowed to use their restroom.
Title VII - Civil Rights Act of 1964
Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972, prohibits discrimination in employment in Federal, State, and local government and in the private sector based on race, color, religion, sex, or national origin. Unfortunately, the majority of recent court decisions at both the District and Appellate Court levels have ruled that Title VII does not apply to transsexuals. Examples of discrimination forbidden by Title VII include: maintenance of sex segregated classified advertising ("help wanted--male" and "help wanted--female"); establishment of different retirement ages for men and women (62 for women and 65 for men); maintenance of separate promotion ladders for men and women; or the refusal to treat pregnancy as a temporary disability. Discrimination based on "change of sex" rather than "sex" itself, is not covered by Title VII, however.
Current Title VII case law involving
effeminate males and/or transsexuals includes: Smith v. Liberty Mutual Insurance Co.,
Voyles v. Ralph K. Davies Medical Center, Holloway v. Arthur B. Andersen & Co., Powell
v. Read's Inc., Audra Sommers v. Budget Marketing, Sommers v. Iowa Civil Rights
Commission, Kirkpatrick v. Seligman & Latz, Ulane v. Eastern Airlines, and Doe v. U.
S. Postal Service.
In Smith the court held that Title VII did not forbid employment discrimination based on "affectional or sexual preference" of the job applicant, despite the fact that the plaintiff was not characterized as a homosexual person but "effeminate."
The Voyles court expanded the non-applicability view to include both transsexuals and bisexuals. Voyles, a medical technician, was dismissed when she informed her employer that she intended to undergo sex reassignment from male-to-female. She was dismissed on the ground that such a change might have a potentially adverse effect on coworkers and patients. She sued under the Civil Rights Act of 1964 for injunctive and monetary relief on the grounds that the dismissal constituted sex discrimination under the Act. The District Court granted the defendant's motion to dismiss, stating that "[s]ituations involving transsexuals, homosexuals, or bisexuals were simply not considered [by Congress in passing the Act], and from this void the Court is not permitted to fashion its own judicial interdictions." The dismissal was upheld on appeal by plaintiff to the Ninth Circuit Court of Appeal.
The Court reached a similar decision in Holloway, wherein plaintiff, employed as a multilith operator, was dismissed after having informed her supervisor that she was undergoing treatment in preparation for sex reassignment from male-to-female. The Court granted the employer's motion to dismiss the suit, ruling again that Title VII did not embrace transsexual discrimination. Again, the decision was affirmed on appeal. The Court did, however, go on to rule that "a transsexual who claimed discrimination because of his or her sex, male or female, could state a cause of action under Title VII.
In Powell, plaintiff was engaged in the required trial living venture prior to sex reassignment surgery. On her first day of employment as a waitress in a new job, plaintiff was dismissed by her supervisor who had been informed by a customer that plaintiff had been a man. The court followed the Voyles and Holloway decisions, stating that Title VII did not embrace sex reassignment.
The Eight Circuit Court of Appeals followed the reasoning of previous courts in Sommers. Miss Sommers was fired by her employer, Budget Marketing, after having told them she had the anatomy of a woman and working two days. The company said she was fired because its office routine was disrupted because female employees threatened to quit if Miss Sommers were allowed to use their restroom.
While the Court was not unmindful of the problem Sommers faces, they recognized the problem Budget faced in protecting the privacy interests of its female employees. An appropriate remedy was not immediately apparent to the Court. "Should Budget allow Sommers to use the female restroom, the male restroom, or one for Sommer's own use?" The issue before the court, unfortunately, was not whether such an accommodation could be reached but, rather, whether Congress intended Title VII of the Civil Rights Act to protect transsexuals from discrimination. The court held with the other Circuits that such discrimination is not within the ambit of the Act.
Sommers, having failed in the federal court system, next brought suit against the Iowa Civil Rights Commission. The Iowa Supreme Court held, however, that an Iowa statute prohibiting discharge of an employee because of that employee's sex or disability did not proscribe employment discrimination based on transsexuality.
The Kirkpatrick court found that a preoperative male-to-female transsexual terminated from employment for not dressing and acting as a man while at work, failed to state a cause of action under 42 U.S.C. Section 1985(3). Under color of law, "plaintiff must allege that defendants' refusal to allow her to continue work while dressing and acting as a woman denied her equal protection, or equal privileges and equal immunities, and where there was no allegation that any other employees who were biologically men, were protected, privileged, or immune so as to have a right to work while dressed and acting as women (or vice versa)." Further, the court went on to find that transsexuals "are not (a) suspect class for purposes of equal protection analysis and (b) clearly there was rational basis for employer's requiring its employees who dealt with public to dress and act as persons of their biological sex since allowing employees to do otherwise would disturb customers and cause them to take their business elsewhere." The decision was affirmed, on appeal, by the Fifth Circuit.
What initially appeared to be a landmark decision occurred during the trial court phase of Ulane v. Eastern Airlines. Ulane, an Eastern Airlines pilot, fired after undergoing sex reassignment surgery, was reinstated with back pay by U.S. District Judge John Grady, who found Eastern guilty of sex discrimination. Judge Grady ruled that Ulane was fired not because of any legitimate safety reasons, but because Eastern officials were concerned about the image of having a transsexual flying their planes. Grady attacked Eastern's "ostrich-like" motives, comparing the airline's position to that of opponents of civil-rights legislation. "Ignorance, prejudice, discrimination and hatred have throughout history been justified by, 'I don't know. We can't take a chance,'" he wrote. Grady ruled that Eastern's medical witnesses "are in my view contemptuous of transsexuals, with an intolerance and prejudice that's culpable." He then went on to reject Eastern's claims that Ulane, as a transsexual, was not entitled to protection under the federal Title VII law prohibiting sex discrimination. The decision, however, was overturned by the Seventh Circuit, with the Supreme Court denying certiorari. In handing down its decision, the Seventh Circuit wrote: "Ulane is entitled to any personal belief about her sexual identity she desires. After the surgery, hormones, appearance changes, and a new Illinois birth certificate and FAA pilot's certificate, it may be that society, as the trial judge found, considers Ulane to be female. But even if one believes that a woman can be so easily created from what remains of a man, that does not decide this case."
Current case law clearly indicates that transsexuals cannot bring suit under Title VII. However, a recent case involving the U.S. Postal Service, has opened the door to possible claims and protection under the Rehabilitation Act of 1973.
In Doe v. United States Postal Service, the court found that Doe had: (1) failed to state a claim under Title VII, (2) succeeded in her claim based on denial of equal protection, since no court has held either that all governmental discrimination against transsexuals rationally based or that it is somehow outside the scope of equal protection, insofar as applicants for U. S. Government employment are entitled to protection against arbitrary or discriminatory treatment, (3) succeeded in her claim under the Rehabilitation Act of 1973, in that her transsexualism is an impairment that substantially limited at least her major life activity of working.
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In general there is no reason to believe that the transsexual will run afoul of the criminal law more often than anybody else, with two significant exceptions which apply to the preoperative transsexual whose anatomical sex is incongruous with the individual's psychological disposition and preferences. First, the transsexual may indeed have sexual contacts that will be regarded by unsympathetic police and prosecutors as homosexual. Second, the preoperative transsexual's more serious problem is with "cross- dressing"--i.e. wearing the clothes and generally presenting oneself to others as being of the "opposite" but desired sex.
It is impossible to determine how many locales still have laws on the books that could be construed to prohibit cross-dressing or "disquising" oneself as a member of the opposite sex.
Cross-dressing is a status offense, one which can be or is in practice enforced only against a specific group of people--i.e. individuals perceived as cross-dressers; transsexuals, transvestites, and female impersonators. These laws are seldom, if ever, enforced against females dressed as males.
Examples of how the courts have dealt with cross-dressing situations can be illustrated by City of Columbus v. Zanders, City of Cincinnati v. Adams, People v. Simmons, City of Chicago v. Wallace Wilson, et. al., Doe v. McConn (formerly reported as Jane Doe I et. al. v. The City of Houston, et. al.), and Columbus v. Rogers.
The defendant in City of Columbus v. Zanders was apprehended while wearing women's clothing and makeup, arrested, charged and tried under Section 2343.04 of the Columbus Municipal Code. The court, after receiving expert testimony that defendant was a true transsexual, dismissed the charge based on a finding that "a person is not responsible for criminal conduct if at the time of such conduct as a result of mental defect he lacks substantial capacity to appreciate the wrongness of his conduct or to conform to his conduct to the requirements of the law."
In City of Cincinnati v. Adams, defendant was charged with a violation of a city ordnance prohibiting any person to "appear in a dress or costume not customarily worn by his or her sex, or in a disquise when such dress, apparel, or disquise is worn with the intent of committing any indecent or immoral act ...." Defendant, a male, was standing in a parking lot wearing a woman's wig, earrings and carrying a purse. The court struck down the ordinance on due process grounds, ruling that the law did not give the defendant fair notice of what was prohibited because of its vagueness and Hoverbreadth. The court implied in its opinion that any ordinance prohibiting transvestism, unaccompanied by criminal activity or solicitation, would be unconstitutional.
The defendant in People v. Simmons, was dressed in female clothing and after soliciting another male for sex, stole some money from him. One charge against him was violation of a New York statute prohibiting criminal impersonation, defined as when one "impersonates another and does an act in such assumed character with intent to injure or defraud another." The court, after a lengthy discussion of definitions of the words used in the statute and other cases, concluded that the statute did not apply to this defendant because he was not impersonating another but was simply himself. In City of Chicago v. Wallace Wilson, et al., defendants, two preoperative male-to-female transsexuals attired in female cloting, were arrested as they left a restaurant following an early Sunday morning breakfast. Convicted and fined, they appealed their case to the Illinois Supreme Court, which upheld the constitutionality of the ordinance but overturned the lower court's action, recognizing the need for cross-dressing of the preoperative transsexual undergoing treatment for eventual sex reassignment.
The court, in Doe v. McConn, declared a Houston, Texas, city ordinance making it illegal to appear in public areas "dressed with the designed intent to disguise his or her true sex as that of the opposite sex," unconstitutional as it was applied to preoperative transsexuals who cross dress in preparation for sex reassignment surgery. The court noted that an integral part of the presurgical process requires that a transsexual wear the clothing of the gender to which reassignment is sought throughout the preoperative stage, and that the ordinance in question, therefore, directly inhibited the treatment of the transsexual plaintiffs and their reassignment. The court noted that there was no exception or defense under the ordinance for transsexuals, including those under a doctor's care. The court also pointed out that the defendants, past and present city officials charged with the responsibility of enforcing the ordinance, had not submitted evidence of a state interest in the enforcement of the ordinance.
In his four-page opinion, U.S. District Judge Norman W. Black described, at length, the transsexual syndrome and the generally agreed upon treatment program which a presurgical candidate must follow in order to receive sex reassignment surgery, stating "[t]ranssexualism is a rare syndrome of gender identity disturbance which appears to occur more frequently in male than in female subjects. The cause of the syndrome is unknown. Treatment of this condition in adults by psychotherapy alone has been futile. Administration of hormones of the opposite sex followed by sex-conversion operations has resulted in better emotional and social adjustment by the transsexual individual in the majority of cases. Prior to undergoing surgery, the patient is required to be seen by a team of specialist in physical and psychological medicine over an extended period of time, generally one to two years."
Judge Black continued his discussion of the treatment process, stating "To date, it is generally agreed that the common requirement of a preoperative period of six to twenty-four months of living and working in the gender role of choice provides the best index of judgment for eliminating non- transsexuals."
One of the reasons for the requirement that the preoperative transsexual live and work in the gender role of reassignment, is that this "real-life test" is presently the most relied upon idice of how well the transsexual can adjust to the demands of everyday living in the gender of reassignment. It provides the individual, as well as the treatment team, with an accurate indication of the individual's ability to function in society as a member of the opposite sex. Also, as stated by the court in McConn, supra "[s]ince some patients presenting transsexual symptoms and desiring surgery may change their mind, a period of hormone therapy and of living in the desired gender role is strongly indicated, so that those whose motives are confused or weak may discover this for themselves through direct experience."
In Columbus v. Rogers, the same city ordinance as that in Zanders, supra, was held unconstitutionally vague on its face, on the grounds that it failed to give fair notice of the conduct forbidden by the ordinance and to provide guidelines to law enforcement officials charged with its enforcement. The court noted that modes of dress for both men and women are historically subject to changes in fashion, with clothing presently being sold for both sexes which was so similar in appearance that a person of ordinary intelligence might not be able to identity it as male or female dress. Moreover, said the court, it is not uncommon today for individuals to purposely, but innocently, wear apparel which is intended for wear by those of the opposite sex. The court stated that once it is recognized that present-day dress may not be capable of being characterized as being intended male or female wear by a person of ordinary intelligence, the constitutional defect in the ordinance becomes apparent. The defect, said the court, is that the terms of the ordinance, "dress not belonging to his or her sex," when considered in the light of contemporary dress habits, make it so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.
A note of caution is warranted in conclusion. The preoperative transsexual who is presently, or is considering, wearing the clothing normally associated with the individual's gender of reassignment should be cautioned to give some thought to the activities the person will be involved in while dressed as a member of the gender of reassignment. If the transsexual is an individual who may be involved in illegal activities such as prostitution, etc., he or she should be aware that to do so while so dressed exposes one to the possibility, more likely probability, of verbal and physical assaults by either arresting officers, jail staff, or other inmantes. In many states it is commonplace for judges and their staffs, as well as juries, to be unsympathetic to the plight of the preoperative transsexual who may make a living from such activities.
To cross-dress without running afoul of the law involves avoiding compromising situations, securing proper identification and authorization, and learning to dress appropriately. The latter is most important: if you are going to cross-dress, don't be obvious about it.
Finally, a letter from the attending physician attesting to the fact that the individual is being treated for transsexualism and that cross-dressing is a required part of therapy should be carried at all times while cross-dressed. While such a letter has proven useful in helping some individuals to avoid embarrassing situations, it is not a guarantee of immunity from arrest. It is not a replacement for common sense.
There are few alternatives for transsexuals
who find themselves incarcerated. The right to treatment in the area of mental health has
been given such unconstitutional underpinning that during an involuntary civil commitment
the right requires adequate treatment or release. Prison officials are charged with the
protection and safety of the inmates in their care and with seeing to the inmate's
physical and mental health. Thus, the preoperative transsexual, who has been receiving
medical treatment for his or her transsexualism prior to incarceration, may have grounds
for continued treatment. On the other hand, the individual who has not been diagnosed and
treated for their transsexualism prior to incarceration is at the mercy of prison
authorities and associated medical personnel as to whether he or she will have an
opportunity to be diagnosed and treated.
Prisoners are normally admitted to prison facilities in accordance with their physical anatomy at the time of incarceration. Thus, the untreated preoperative male-to-female is assigned to the men's facility, and the untreated preoperative female-to-male is assigned to the women's facility.
The decision of which facility to assign a preoperative transsexual in mid- transition is complicated. There are few administrative decisions or case law to rely on. Common sense, however, should tell the transsexual facing incarceration that it is impossible to undergo hormone therapy and visibly feminize or masculinize one's body while institutionalized without problems. The physical changes associated with hormonal sex reassignment have caused serious problems in relations with both prison staff and other inmates.
The news media has carried a number of articles concerning preoperative transsexuals incarcerated at mid-transition. Each of these stories has detailed sexual abuse, beatings by both inmates and prison guards, extended solitary confinements. For example, in Farmer, district Judge William Nealon dismissed a transsexual inmates civil rights suit against the Federal Bureau of Prisons because it lacked merit.
The inmate, identified only as Farmer, a diagnosed transsexual serving a sentence for theft and forgery, claimed FCI Lewisburg officials were deliberately indifferent to [her] serious medical condition by refusing to continue [her] estrogen treatment, subjected [her] to cruel and unusual punishment and violated [her] rights to due process and equal protection by isolating [her] in administrative detention during [her] Lewisburg stay.
In denying Farmer the medication Premarin, a brand of conjugated estrogens, based on informed medical opinion and not an indifference to [her] medical needs, Judge Nealon stated the court would not second-guess three doctors who agreed the proper treatment for people "who feel that nature has assigned them the wrong sexual characteristics remains firmly in the providence of psychotherapy, not in hormonal or surgical manipulation."
On the other hand, the Supreme Court has refused to review a ruling by the 7th U.S. Circuit Court of Appeals, which ordered a lower court to take up Lavarita Meriwether's suit against Indiana prison officials.
Meriwether, 28, a preoperative transsexual, alleged in her complaint, filed in 1983, that she has been denied all treatment, including estrogen therapy for her gender dysphoria, that she has been the victim of violence and sexual assault while housed in the general prison population, and that she had been segregated for up to five months while being sexually and emotionally abused by guards.
U. S. District Judge James E. Noland threw out Meriwether's suit, ruling that no "serious" medical need was involved. His decision was reversed and the suit reinstated by the 7th U. S. Circuit Court of Appeals. The Appellate Court, in sending the case back for further review, found evidence of deliberate indifference to the medical needs of Meriwether, and that she has a right to some kind of medical treatment, but stressed "it might not take the form of estrogen therapy." Under similar circumstances, U.S. District Judge Raul Ramirez, granted a preliminary injunction to Anna Marie Mostyn, a preoperative transsexual, stating that "although prison officials classified her as a man, because the sex change has not been completed, evidence is overwhelming in every respect that Mostyn has predominantly female characteristics and is a true transsexual."
Judge Ramirez ordered that she be kept out of the general male population of any prison, and that medical treatment be continued because the inmate "could have severe psychological effects" if they were stopped. He refused, however, to grant her request to be allowed to wear feminine clothing and cosmetics while in prison.
The course of action, therefore, for the preoperative transsexual undergoing treatment should be quite obvious--avoid compromising situations which could lead to incarceration.
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In child custody cases involving a gender
conflicted parent one hesitates to predict what action the courts will take. As Jan Elliot
points out, "[t]here are few published court opinions dealing with cross dressers . .
. [and] in general the opinions present a 'mixed bag.'"
The traditional legal standard for dealing with children is to place the welfare of the child in a predominant position. While the relevant factors are relatively comprehensible in the ordinary custody proceeding, a case involving a gender-conflicted parent presents a unique situation, the threshold question being whether the gender-conflicted are by definition unfit parents.
In In re Tenure Hearing of Grossman, the trial court held and the Court of Appeals affirmed that the mere presence of a transsexual teacher whose sex reassignment was known to the children caused the likelihood of psychological damage to the children sufficient to justify her dismissal.
On the other hand, the Colorado Appellate Court ordered that custody remain with the natural "mother" (now a male) in Christian v. Randall. The court found that "[t]he record contained no evidence that the environment of the respondent's home in Colorado endangered the children's physical health or impaired their emotional development."
In 1987, a Minnesota appellate court reasoning that the best interests of the child would be so served sustained the grant of sole custody of a daughter to her "transvestite" father. Important to the decision were the facts that the father did not cross dress at home; would tell his daughter about his cross dressing at an appropriate time with the help of a therapist; and, perhaps critically, that the child had been abused while in the mother's custody. Finally, in 1988, custody was given to a transsexual parent, In Re Custody of T. J., who had determined for the present to maintain his male identity and not cross dress, even though his son knew of his father's gender conflict.
The controversy continues, however. In In Re Clark, an Orange County Superior Court judge approved an adult adoption of a 25 year-old prison inmate. A week later, the judge changed his mind and rescinded the adoption decree, having belatedly discovered that both parties were labelled as transsexuals. The presiding judge ignored the fact that the adoptive parent was: (1) now legally female and had been for the past 12 years, and (2) a highly respected member of the local community with considerable community support for her action. The judge's position was that the adoption was not in the public interest.
Parental rights became a major issue in the case of Daly v. Daly, when the respondent mother petitioned the trial court to terminate appellant's parental rights. The trial court terminated appellant's parental rights and Appellant appealed.
The court reviewed jurisdictional grounds for termination of parental rights under Nevada statute NRS 128.105. Expert witnesses examined the child and testified that there was a serious risk of emotional or mental injury to the child if she were allowed to be in her father's presence. Further, the child stated to the court that it would be disturbing to visit with her father and made it graphically clear that she didn't want to see him again.
Based on the above the trial court found the requisite jurisdictional grounds existed to terminate parental rights.
On the other hand, in In re Mackenzie, the Arizona Supreme Court has ruled that the defendant's crossdressing and preoperative transsexual lifestyle were not an issue significant enough to cancel either custody or visitation. Whether the gender-conflicted are per se unfit school teachers and/or parents is clearly unresolved scientifically and judicially at this time. Preliminary psychiatric data, however, indicates that as parents, the gender- conflicted do not adversely affect their own children's sexual identity. Richard Green, of the State University of New York at Stoney Brook, having studied 16 children of gender-conflicted parents over a two year period stated that "[at] this stage I tentatively suggest that children being raised by transsexuals ... do not differ appreciably from children raised in more conventional settings . . . ."
Divorce Individuals who have entered into marriage and are later diagnosed as gender- conflicted should seek legal assistance if they decide to pursue sex reassignment surgery. This is especially important when children are involved, should the transsexual parent desire to maintain custody and/or visitation.
With the exception of perhaps the Randall, In Re Welfare of N. H. and In Re Custody of T. J. cases, discussed in the preceding section, parental custody and/or visitation rights have generally been denied the gender-conflicted parent; the Daly decision being typical of the many uncited custody/visitation rights battles.
Divorce is traumatic enough on children. The situation is complicated even further when one parent is sufficiently gender-conflicted to seek sex reassignment, and the other parent is hostile, seeking to deny parental rights to the other altogether. The real losers are the children of such a union/custody and visitation rights battle.
Love sometimes means letting go . . . particularly when the long-term emotional health of the children are at stake. The gender-conflicted parent, faced with a hostile spouse in a divorce action, should consider very carefully the long-term effects on their children of a prolonged custody battle.
Finally, it should be noted that few physicians will provide hormone therapy, and even fewer surgeons will perform sex reassignment surgery prior to a divorce action being completed because of the threat of a malpractice suit by the gender-conflicted's spouse. Marriage
Marriages between gender-conflicted and non-gender-conflicted fall into three categories: (1) Marriages between two persons of the same sex (preoperative marriage); (2) Marriages between a person of one sex and a person of the opposite sex who was formerly of the same sex (postoperative marriage); and (3) marriages between two persons of the opposite sex, one of whom subsequently became a member of the same sex.
Preoperative Marriage: Marriage contracted by preoperative gender-conflicted individuals are clearly considered invalid: the law making no provision for a marriage between persons of the same sex. The reported cases have unanimously rejected claims by parties involved in same sex marriages.
In Baker v. Nelson, the Minnesota Supreme Court denied efforts by two males to obtain a marriage license, reasoning in part that "[t]he institution of marriage as a union of man and woman, uniquely involving procreation and rearing of children within a family, is as old as the book of Genesis." Further, the Court ruled that such denial did not violate the plaintiffs' First amendment right to freedom of religion, their Eighth amendment right not to be cruelly and unusually punished, their Ninth amendment right to privacy, nor their Fourteenth amendment right to equal protection and due process. The same issues were subsequently raised and rejected by other courts in Jones v. Hallihan and Singer v. Hara.
In Anonymous v. Anonymous, a marriage contract was entered into by two males, one of whom thought the other was female. Upon attempting to consummate the marriage, the unsuspecting male discovered the true sex of the other. Shortly thereafter he was transferred overseas. In the meantime, the second male underwent sex reassignment. The first male sued for a declaration as to the status of the marriage. The New York Supreme Court declared that the marriage ceremony had not in fact created a valid marriage, noting that "[w]hat happened to the [second male] after the marriage ceremony is irrelevant, since the parties never lived together."
Postoperative Marriage: The issue of whether a marriage is legal when one of the parties has changed his or her when one of the parties has changed his or her sex before the marriage ceremony appears to present more of a problem for the courts. The validity of a postoperative marriage hinges on many factors, as do all marriages; for example, fraud and absence of consummation.
Early case law (pre-1975) clearly considered all transsexual marriages to be invalid. In Francis B. v. Mark B., the husband had undergone operations for mastectomy and hysterectomy, and was undergoing hormonal therapy at the time of the marriage. During attempted consummation the wife discovered that the husband was without a penis and could not perform sexually. The wife brought suit for an annulment on the ground that the husband was a female, wherein the husband brought a cross-suit for divorce. The court ruled that the husband could not succeed on a suit for divorce because there had been no valid marriage to begin with. "While the inability to consummate the marriage would have been enough to justify the annulment, the defendant was in fact a woman," thus invalidating the marriage.
On the other hand, in M. T. v. J. T., the New Jersey Appellate Division unanimously declared in 1976 that an individual who changes sex through surgery is entitled to all the legal rights enjoyed by others of the same sex, including marriage. The court rejected previous decisions in this country and abroad, in which a person's sex was determined solely by his or her chromosomes or designated sex at birth. The court ruled that "[i]f the anatomical or genital features of a genuine transsexual are made to conform to the person's gender, psyche, or psychological sex, then identity must be governed by the congruence of these standards." Therefore, at least in New Jersey, a marriage between a postoperative transsexual and a person of the opposite sex is valid as long as the transsexual tells the partner in advance about his or her sex reassignment.
The controversy continues, however. In In re Ladrach, reported upon by Jan Elliot, a postoperative male-to-female transsexual sought to marry a genetic male. Noting [incorrectly] that only Arizona, Louisiana, and Illinois statutorily permit changing sex on a birth certificate, although another twelve permit such change without statute, the court held that it could not alter the birth certificate of the transsexual without statutory authority and accordingly the transsexual could not lawfully marry a man.
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During the late 1970's private health plans
became more generous of providing coverage for preoperative evaluation, sex reassignment
surgery, related therapies and hospital costs: (1) the establishment of multidisciplinary
gender programs, (2) the work of dedicated professionals, such as Harry Benjamin, M.D.,
Paul Walker, Ph.D., Alice Webb, M.S.W., and Donald Laub, M.D., (3) the establishment of
minimum "standards of care" by the Harry Benjamin International Gender Dysphoria
Association, and (4) a number of "positive" judicial decisions, ruling sex
reassignment as non-cosmetic and medically necessary in properly selected patients.
Although Federal Employee Health Benefit Plans began excluding benefits for sex reassignment as early as 1974, it was not until August 1979, following publication of the Meyer/Reter study, with subsequent worldwide press coverage, that exclusion clauses began to appear on a widespread basis in privately issued insurance policies. The Meyer/Reter study was published shortly after the Health Care Financing Administration (HCFA) financed study, which was published without news media commentary or notice.
Following these events the race to publish studies critical of sex reassignment was on, with the National Center for Health Care Technology (NCHCT), and the office of Health, Research, Statistics and Technology (HRST) and Public Health Service (PHS), financing studies which they have relied on heavily to instruct federal agencies that federal funds are not to be used to fund or pay for sex reassignment surgery.
More recently a Federal District Court in Atlanta, Georgia, issued a ruling in the case of Rush v. Johnson, finding that transsexual surgery was experimental in nature and that Georgia's prohibition of said services to transsexual applicants was rationally related to a legitimate governmental interest in protecting the public health. The court also found that the state's determinations that sex reassignment surgery was not generally accepted by the professional medical community as a proven and effective treatment and that there was no authority of evidence that the surgery is safe and effective were reasonable. The decision effectively confirmed the position taken by HCFA in 1981.
Much publicized and often quoted, the Meyer/Reter study was the turning point, despite critical reviews, and a general lack of acceptance within the professional community. The study has, however, been a rallying point for many private individuals (both professional and non-professional), bureaucrats, and government entities seeking to end or severely limit sex reassignment surgery in the United States.
The trend today is towards a full denial of benefits related to transsexual surgery. A trend that is most unfortunate considering: The prevalence of the phenomenon, the mental anguish characteristically suffered by the transsexual, and the vulnerability of this group to abuse and discrimination.
A search for cases involving transsexuals and health insurance related issues was conducted in May, 1988, utilizing both LEXIS and WESTLAW. The search produced less than a dozen cases despite the fact there are clear indications that more have come to trial. The majority are either settled out of court or never go beyond the trial court level.
One fact became increasingly clear during the above case search; that is the inability of the American judicial system to keep pace with scientific and medical advances of the past 30+ years. The judicial decisions rendered by the courts represent a broad-spectrum of societal concerns--i.e. Change of name, correction of birth certificates, criminal issues, civil rights, marriage, and health insurance. These decisions have been, in general, nothing more than a succession of confused and inconsistent legal pronouncements as the system attempts to reconcile medical and biological facts with legal and social concepts of sex and gender. The system's diverse opinions are aptly illustrated in Richards v. United States Tennis Ass'n and Ulane v. Eastern Airlines.
The first medical necessity case to come before the court was Denise R. v. Lavine. Denise R., a male-to-female transsexual, having lived fully as a female for 18 years, was denied medical assistance for sex reassignment surgery by the New York City and State Department of Social Services. Neither the City or the State questioned the diagnosis, but determined that there was insufficient evidence to find medical necessity.
The New York Appellate Court ruled in favor of plaintiff, holding the state commissioner's denial of services as arbitrary and capricious. On appeal, the Court of Appeals reversed the appellate court decision, concluding that "[w]here an administrator adopts one of several conflicting opinions," the court could not "assume the role of either social agency or legislative body."
On facts similar to those in Denise R., Doe, an adult male-to-female transsexual, appealed from a decision by the Minnesota State Welfare Department denying medical assistance benefits for sex reassignment surgery. The trial court affirmed the Welfare Department's decision; however, on appeal, the Minnesota Supreme Court reversed the decision. The Supreme Court held that: "(1) The total exclusion of transsexual surgery from eligibility for medical assistance payments was void; (2) The standard of medical necessity requiring applicant for benefits to prove by conclusive evidence that requested medical treatment will eliminate disability and render applicant self-supporting was invalid; and (3) The Welfare Department's determination to deny medical assistance benefits was arbitrary and unreasonable."
Verna Pinneke successfully filed suit in the
U.S. District Court for the Northern District of Iowa, in 1977. The court ordered state
and local officials to reimburse Pinneke for her medical expenses, and awarded $500 in
punitive damages as compensation for mental anguish and suffering. The State of Iowa and
local officials appealed.
The Eighth Circuit Court of Appeals affirmed the trial court's decision, holding that: "(1) Iowa's denial constituted an arbitrary denial of benefits based solely on diagnosis, type of illness or condition, and (2) Iowa's policy of denying Medicaid benefits for sex reassignment surgery was not consistent with the objectives of the Medicaid statute."
The medical necessity and cosmetic surgery issues first came before the California courts in 1978. G. B. v. Lackner and J. D. v. Lackner involved claimants applying for sex reassignment surgery under the state's MediCal medical assistance program. The Director of Health Services [Lackner] denied benefits in both cases on the ground that "the proposed surgery was to be performed solely for cosmetic purposes and was therefore not covered under the MediCal program." The trial court entered judgment, in both cases, for defendant Lackner. The claimants appealed and the Court of Appeal, First District, reversed and remanded with instructions to the trial court to issue a Writ of Mandate.
Both Lackner decisions treated transsexualism as an illness and recognized the medical necessity and reasonableness of the surgery for the plaintiffs. In regards to the cosmetic surgery issue, the language of the J. D. decision is most noteworthy--"As stated in G. B. v. Lackner: We do not believe, by the wildest stretch of the imagination, that such surgery can reasonably and logically be characterized as cosmetic."
Recently a Federal District Court in Atlanta, Georgia, issued a ruling in the case of Rush v. Johnson. This case actually began in 1976-77 as Rush v. Parham, with the federal district court ruling that state officials had to pay for the requested surgery, and the state appealing the decision. The U.S. Court of Appeals for the Fifth Circuit held that 1) The state should have been permitted to show at trial that the Georgia Department of Medical Assistance had a ban against making payments for experimental treatments because treatment is not medically necessary, and 2) that transsexual surgery is such a treatment.
Richard C. Freeman, the District Court Judge who issued the court's ruling on June 9, 1983, and who also issued the court's prior ruling in 1977, began by briefly describing the history of the case and the prior district and appellate court rulings and the nature of the court's present proceedings as directed by the Fifth Circuit.
Using the somewhat limited guidelines established by the Court of Appeals, the district judge made a lengthy set of findings of fact and conclusions of law, concluding that: (1) Transsexual surgery was experimental in nature and that Georgia's prohibition of said services to transsexual applicants was rationally related to a legitimate governmental interest in protecting the public health, and (2) the state's determinations that sex reassignment surgery was not generally accepted by the professional medical community as a proven and effective treatment and that there was no authority of evidence that the surgery is safe and effective were reasonable.
The first cited case involving a private health carrier was decided by the New York Supreme Court in 1979. The Davidson facts were again similar to preceding cases and were not in dispute. Davidson's insurance carrier, Aetna Life Insurance Company, refused to bear the cost of medical expenses, alleging: (1) Gender dysphoria is not an injury, (2) Transsexual surgery is cosmetic in nature, and (3) Surgical intervention is not necessary and unreasonable. The court found in favor of Davidson, finding the surgery "cannot be considered to be of a strictly cosmetic nature," and that the "sex change operation of the plaintiff is of a medical nature and is feasible and required for the health and well-being of the plaintiff."
A single arbitration case was found utilizing DIALOG. The case involved an employee of Ohio Steel Tube Co. and a member of Steelworkers, Local 3057. The arbitrator found the employee who had transsexual surgery in addition to hormonal treatment and counseling to be ill and entitled to insurance benefits under the contract's program of insurance benefits.
Overall the court's position continues to be one of indecision as it grapples with the issues. While the majority of decisions involving the extending of health care benefits to transsexuals have been in favor of the plaintiff, the Rush decision sets a precedence that is sure to be relied upon by other jurisdictions, just as the Lackner and Davidson decisions have been relied upon.
Public Agency/Private Companies Response
CHAMPUS: The Civilian Health and Medical Program of the Uniform Services (CHAMPUS) is a medical benefits program provided by the Federal government to help pay for civilian medical care rendered to spouses and children of active duty uniformed services personnel, to retired spouses and children, and to spouses and children of deceased active duty personnel. With one exception, medical benefits for military dependents are not available for any medical service or supply directly or indirectly related to sex reassignment (transsexualism or hermaphroditism), including psychotherapy, prescription drugs and medicines, and surgery. The one exception is for otherwise covered services and supplies in connection with surgery performed on a child less than ten years old to correct sex gender confusion (ambiguous genitalia).
MEDICARE: There has been a great deal of misunderstanding about Medicare's payment policy for sex reassignment surgery because of certain erroneous and misleading newspaper reports that received widespread publicity during late 1978 and early 1979, alleging that Medicare had decided to cover sex reassignment.
The Health Care Financing Administration (HCFA) clarified Medicare's position in 1983 with the issuance of HCFA Transmittal No. 833, declaring sex reassignment surgery to be experimental in nature. Consequently, Medicare does not provide benefits for sex reassignment surgery and related therapies.
PRIVATE COMPANIES: A survey of private health plans in mid-1985, resulted in the following list of companies providing health coverage for sex reassignment and related therapies:
Connecticut General Prudential John Hancock Company The Equitable Massachusetts Mutual Life The Hartford Metropolitan Life *The Travelers Northwest National Life
*Two policies have appeared in recent months with specific exclusions relating to intersex and/or transsexual surgery. The key issues in obtaining benefits from those companies providing coverage (the above list is by no means complete) for sex reassignment surgery and related therapies will be the lack of pre-existing condition and adequate documentation that the patient has been diagnosed in accordance with the minimum "standards of care" established by the Harry Benjamin International Gender Dysphoria Association, thus establishing that the requested procedures are medically necessary.
A total exclusion trend has begun to emerge in recent months involving individual, small group, and insurance trust policies. The rationale for this total exclusion policy is provided in a recent letter by Mutual Omaha:
The specific medical reasons as to our decision to deny applications from gender-conflicted individuals is that this situation requires intensive, often multiple procedures and continuing long-term maintenance observation involving multiple systems as well as many bio-psycho-social aspects of care. Also, any exclusion rider would not be broad enough to adequately encompass this form of care.
This new policy has yet to be challenged in the courts.
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