(Photo by LongLiveRock, via Wikimedia Commons)
Editor’s note: This is the first in a series of articles examining the state of transgender rights.
It’s a vicious cycle—workplace discrimination, denial of health care, poverty, and sometimes even incarceration. The transgender community faces a host of ­challenges, chief among them survival, and an outdated legal system is partly to blame.
There has been some progress in adapting the law to protect the rights of transgender individuals, but some of those who fight for those rights say it’s not enough. The problem is compounded by the scarcity of ­resources to fuel advocacy, and a widespread lack of knowledge about the needs and struggles of transgender individuals.
“What is the most pressing issue for trans people? Staying alive,” said Angela Giampolo, a Philadelphia lawyer ­specializing in LGBT law.
Transgender issues don’t have the same level of awareness that marriage ­equality had; they simply don’t have the same ­backing of “white upper-class money” to get the word out, Giampolo said.
Advocacy, then, has to take place in the courtroom, but since many transgender people don’t have the money to hire an attorney, they have to rely on lawsuits funded by nonprofits or by attorneys working pro bono.
Giampolo said a quarter of all ­transgender people live below the poverty line. Why?
Along with generalized discrimination, finding a job—let alone keeping it—can be an insurmountable obstacle for a ­transgender person.
According to a joint survey conducted by the National Center for Transgender Equality and National Gay and Lesbian Task Force, transgender individuals had double the rate of unemployment compared to the general population; about half of the 6,450 respondents nationwide reported that they had been fired, not hired or denied a promotion based on their transgender status.
One remedy is to file a lawsuit under Title VII of the Civil Rights Act with the U.S. Equal Employment Opportunity Commission, which has gained some ground for the transgender community.
In EEOC v. Lakeland Eye Clinic, a 2014 lawsuit filed in Florida federal court, the commission sued the eye clinic for firing an employee for transitioning from male to female. According to the EEOC, the suit was settled for $150,000 and the clinic agreed to implement a gender anti-discrimination policy.
Lakeland was by no means the only case filed by the commission to reach a favorable outcome for a transgender person. Still, EEOC statistics from 2013 to 2015 don’t show a clear trend when it comes to filings, mostly because the commission only started tracking that data since 2013.
Last year, 112 transgender/sex-identity discrimination cases were filed by the EEOC. In 2014, there were 202, while in 2013 there were 147. An average of half of those cases were dismissed as being filed with no reasonable cause, while the rest were settled or resulted in favorable rulings for the plaintiffs.
“With any kind of discrimination, we consider suing a last resort. There are other outcomes that happen first,” said James Ryan, an EEOC spokesman.
Cases will often be referred to local civil rights organizations or the commission will investigate the claims and try to resolve the case outside of court.
“We’ve seen a significant number of suits, but not necessarily a lot,” said Thomas Ude Jr., the legal and public policy director at the Mazzoni Center, which provides health and wellness services to the LGBT community. That’s especially true when it comes to being denied employment altogether.
“It’s very difficult to prove that someone was not hired because of their gender identity, but when people are seeking position after position and are being turned down, it’s pretty clear what’s happening,” Ude said.
Health care: lost in transition
According to Ude, only a handful of states and the District of Columbia provide Medicaid coverage for gender reassignment procedures; the vast majority do not. Medicaid is often the only form of health insurance available to transgender people, since not having employment limits their access to private insurance.
For people with gender dysphoria, or GD—a condition in which people identifying with a gender differing from the one they were born with experience physical and psychological distress—surgery or therapy aiding in gender transition is a medical necessity.
Ude said groups like the American Medical Association and the American Psychiatric Association have “not only called for those procedures to be recognized as medically necessary, but also for insurers to cover them.”
University of California, Berkeley, School of Law professor Russell Robinson said transgender women in particular are often faced with the prospect of funding their own transitions because of the lack of insurance or medicaid coverage.
“They have to go and find other avenues to affirm their genders,” Robinson said. “That’s a major burden.”
Robinson, who teaches anti-discrimination law, said both the state and federal health care systems are generally inadequate when it comes to transgender health issues.
Julie Chovanes, an attorney who heads the Trans Resource Foundation in Philadelphia—a group she describes as being run by trans people to help trans people—noted gender transition surgery is covered by Medicare.
In May 2014, the U.S. Department of Health and Human Services lifted a ban on coverage for transgender surgery under Medicare. But even so, federal law allows states to limit what is covered by Medicaid.
Chovanes represents a transgender man under the name John Doe in his discrimination suit against the Pennsylvania Department of Human Services. Doe, who has GD, sued after he was turned down Medicaid coverage for a hysterectomy.
The suit challenges Pennsylvania state law regulating compensation for medical services. It says that coverage is denied for “surgical procedures and medical care provided in connection with sex reassignment.” That includes treatments like hormone therapy to major procedures such as genital construction.
Doe, who has been a Medicaid recipient since 2013, argued Pennsylvania’s stance was unconstitutional.
He alleged in his lawsuit that the “defendant’s actions in adopting, promulgating, and enforcing the regulations, are discriminatory and violate the Constitution and laws of the United States, which mandate that medically necessary Medicaid coverage provided through state Medicaid programs must be provided equally to all Medicaid eligible individuals, without regard to diagnosis.”
The next part of the series examines challenges faced by transgender individuals in the criminal justice system.
P.J. D’Annunzio can be contacted at ­215-557-2315 or email@example.com. Follow him on Twitter @PJDannunzioTLI. •