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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 all-out-ness 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.
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 magazine
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 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
non-existent.
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 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 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.
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.
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
2.14Genitalia
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."
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.
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.
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.
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 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.
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 overbreadth.
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.
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 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 labeled 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 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 . . . ."
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.
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.
T
he 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.
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.
Judicial Response 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.
(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 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).
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.
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.
IDENTITY & IDENTIFICATION
[The section on Identity, including birth certificates and changing
records. is being revised and updated at the time this text was
uploaded.
The complete text, including footnotes is available from J2CP
Information Services, P.O. Box 184, San Juan Capistrano, CA
92693-0184; a donation of
$15.00 to cover printing and mailing costs is requested.
Permission is granted to freely copy and retransmit this file
provided that it is left intact and the copyright information is
retained.]
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