Transgender rights are on the cusp of mainstream acceptance if they aren’t there already. Though transgender people are often bundled together with the LGBT community, there are certain issues that separate them from other sexual minorities. This sociology research paper that explores some of the contemporary issues confronting America’s transgenders.
Civil Rights: Transgenders still fighting
As more civil rights become legally recognized and protected for America’s LGBT population, acceptance for what was once considered an unacceptable way to conduct one’s life becomes more “normal” or, at least, tolerated. However, as America and the rest of the world become more tolerant of the LGBT status, transgenders seem to have a harder time than the others in the enforcement of their civil rights. The reason for this discrepancy likely lies in the difficulty of breaking away from the “black and white” of gender assignment and stepping into the gray identification.
What is transgender?
There are varying definitions of who constitutes a transgender. One school of thought is that a transgender is someone who:
“desires to change their gender, is in the process of changing their gender, or has completed the process of changing their gender” (Sabatello, 2011).
Another defines the transgender as an all-encompassing term including anyone whose gender self-expression does not conform to that which is generally expected by society as a whole. Because this is an all-encompassing term, it tends to include anyone who seems to outside the “norm” of what is expected, such as heterosexuals who are either too feminine or too masculine in opposition to their own gender, homosexuals, or any individual with a tendency to act or present themselves outside the norm of accepted gender displays.
For this discussion, we will define transgenderism as distinguished from homosexuals in that, rather than being attracted to members of their same gender, transgenders suffer from a gender/identity disorder wherein the individual feels that they actually belong to the other gender.
“Medically, the term is generally considered to be a condition where physiologically normal individuals experience discontent being of a sex to which they were born and have a compelling desire to live as a person of the opposite sex” (Trotter, 2010).
Differentiating transgenders from other homosexuals
While a transsexual engages in homosexual acts prior to any gender reassignment efforts they may seek, once they attain gender reassignment they typically no longer seek the homosexual relationships but, rather, engage in the typical heterosexual relationships appropriate for their true gender. So, effectively, while the transgender individual is categorized into the gay/lesbian/bisexual/transgender group, they are actually quite distinguishable and, unlike the remaining members of the group, the transgender subgroup can actually be “fixed.” Dividing this subgroup into a further subgroup, the conflict between gender identification and assigned gender often begins very early in a child’s life.
These individuals, dubbed the “true transsexuals” or “primary transsexuals” identify little girls who are extremely tomboyish and little boys who exhibit overtly effeminate characteristics and behaviors. The other half of that subgroup develop their tendencies later in life—sometimes well after marriage and beginning a family of their own—and are referred to as secondary transsexuals. Whether and to what extent an individual will act on their internal gender identification becomes an issue of their own sense of confidence, their self-awareness in understanding the feelings and emotions which can form a sense of repression without a basis for family or friend support, and any romantic relationships they may involve themselves with during their formative years (Sabatello, 2011).
Medical and legal definitions of transgender
Regardless of how one reaches their status as transgender or which subgroup they find themselves assigned to, the definition of transgender which has been adopted by the World Health Organization and the American Psychiatric Association is an individual who suffers from “gender dysphoria” or “sexual identity disorder” within the broad scope of mental and behavioral disorders. The legal community’s definition is still evolving, however, and is not as definitive as the medical profession’s. Within the legal community, a person is as a person was born until such time as the court deems that person to have changed their gender identity through medical and surgical options. That black-and-white definition, however, is beginning to gray around the edges with a movement that began in 1975 when Minneapolis adopted the first transgender non-discrimination language providing for equal protection under the law (Currah & Minter, 2000).
Acceptance of the idea that “sex” and “gender” were different considerations, recognition for the need for equal rights protections also gained more acceptance as legal decisions began to incorporate that philosophy. The mere fact that one person has a penis while another has a vagina provides their sexual identification, but their gender identification comes from “above the belt” (Trotter, 2010). Consequently, the landmark decision of Smith v. the City of Salem (Smith v. the City of Salem, 2004) ruled that transgendered individuals are covered under Title VII’s prohibition against sexual discrimination on the grounds that sexual stereotyping is a form of sexual discrimination.
Legal protections afforded transgenders
The result of Smith v. the City of Salem and subsequent cases following that decision is that many states—but still not all—afford varying protections for transgendered individuals against discriminatory practices in housing, employment, education and public accommodations. Actions can arise against violators of those protections whether the person acted on knowledge that the transgender was transgender or gay, or whether the violator merely believed the individual fell under that protected class (Lesbian Gay Bisexual Transgender and Aids Project). Still, there are cases where the government passes legislation hindering the transgender community. The North Carolina bathroom bill is a recent example of states passing laws to discriminate against transgenders.
Transgender rights hindered by government and society
Whilethe LGBT and transgender communities still face gender bias, legislation has been passed by varying states to ensure protections for protected classes of people, transgenders are also protected under the United States Constitution under the First Amendment, which guarantees the freedoms of individuals in their speech and expression. While the impact of ensuring freedoms for all regardless of whether an individual conforms with societal norms is crucial to a truly free nation, there are concerns, as well, for the remaining members of society whose rights then become infringed by ensuring the exercise of rights by the minority.
Access to public services are but one of the rights many states have granted to ensure protections for gay, lesbian and transgender individuals, and their rights to enter the restroom facilities with which they identify is, then, equally protected. Because the thought is that the gender identification is separate from sexual identification and that such labeling occurs “above the belt,” the ability for a man who identifies as a woman—and vice-versa—to enter a restroom and use those facilities should be a protected right.
However, such a right can also have significant harmful impacts and safe implications, as well. Women who are uncomfortable with a man entering the women’s restroom should not have to accept that man’s presence merely because that man identifies as a woman. The same shall be applied to a men’s room. When such a circumstance is utilized by a man who is not transgender but merely utilizes that provision to gain access to a private, unmanned women’s restroom, the potential for danger is ominous. The issue also arises as young children are sent into a restroom alone while the parent of the opposite gender waits outside. While that child is alone in that restroom with no parental protection, they become an easy target for a child sex predator.
LGBT equality in America
There are many concerns for the LGBT community, including gay athletes who wish to participate in sporting competitions. A child who wishes to compete but is too young to consent and receive gender reassignment may find themselves locked out of sports for fear of being teased and harassed by other team members. Individuals who have obtained gender reassignment drugs and procedures then run the risk that they overpower their competitors and, because of their gender, have an unfair advantage in the competition. Such is the case if women are forced to compete with men in sports where brute strength is the deciding factor. Here are a few cases of gay rights battles in America.
LGBT rights at the 2008 Olympics
Such was the issue which needed to be addressed by the International Olympic Committee. In the 2008 games, South Africa’s Caster Semenya was questioned and tested on suspicion of unfair competition based on the belief that she was a man. Her amazing speed, deep voice, and six-pack abs surpassed what would be expected from a woman. A physical examination found that, indeed, Semenya was born as a male but had not had the benefit of a testicular drop. Consequently, Semenya was identified as a female—although she did not have ovaries or a uterus—and her competition in that race was ultimately challenged on the basis that she had an unfair advantage against the other female racers.
While Semenya, undoubtedly, identified as a female, allowing her to compete against other females without the benefit of testosterone to provide them greater muscle—and, hence, greater speed—created an infringement on the rights of those competitors without the increased testosterone (Curley, 2012). Recognizing that need for some sort of middle ground, the IOC delved into the matter in a review of the 2008 race and ultimately determined that Semenya was female and could compete against other women. The reasoning for this will be further detailed at the conclusion of this discussion.
Transgender issues in prison
This concern involves issues surrounding incarceration facilities. Recognizing the rights of free individuals must also recognize the rights of individuals without access to the medical and surgical solutions for their gender misidentification. When a man or a woman are found guilty of a crime and sentenced to time, they are assigned to a specific facility which houses like-gender individuals. Should that become compromised, issues of safety both to the inmate and the guard staff will likely be at risk. Because society has a firm definition of gender roles, a man who identifies as a woman also cannot be incarcerated with women, nor can a woman who identifies as a man be incarcerated with men. The question then comes down to how to handle gender identification issues and whether to permit incarcerated individuals the benefit of the medicines and surgeries needed to reassign their genders.
Initially, the ability to obtain gender reidentification services was considered voluntary and was not covered by insurance, as it was not recognized as medically necessary. While that has changed, the onus of such procedures and costs for an incarcerated individual is placed upon the taxpayers. The public outrage over financing such a procedure has garnered much attention with negative support. However, as gender misidentification has become recognized as a medical necessity which not only corrects a perceived birth defect, such correction has also become recognized for a mental health issue and is granted for those inmates for whom such a procedure would benefit over the long run.
In the 2007 Idaho case, Gammet v. Idaho State Board of Corrections, Jennifer Spencer was a transgendered woman who lived her life identifying as a man and made 75 requests for treatment of her gender identification issues over the 10-year course of her incarceration. The prison system refused to address and treat her issues, and she ultimately attempted suicide upon the final determination that she would not receive treatment. Eventually, she removed her own genitals with a disposable razor blade and, in response based on her history and expert medical testimony, she was granted entitlement to receive hormone therapy while her case was being decided. The judge in that matter held that “gender identity disorder, left untreated, is a life-threatening mental health condition” (Gammett v. Idaho State Board of Corrections, 2007)
Contemporary issues and resolutions
Much has been resolved in conflicting issues when ensuring protections for gay, lesbian, bisexual and transgendered individuals. While there are cases of discrimination, such as the North Carolina bathroom bill, Civil rights violations tend to be easier to address for gay, lesbian and bisexual individuals merely because their lifestyles do not directly impact heterosexual citizens—unlike transgendered individuals. Consequently, transgendered individuals face tougher obstacles in achieving equal rights. Recognizing the strides gained does not alleviate the need for continued improvement. The IOC took steps to address the issues by utilizing a hormone test rather than a physical examination. Because male athletes produce higher testosterone then female athletes, the IOC established a cutoff wherein any athlete indicating higher testosterone levels than the accepted female allotment would be deemed a male competitor. While this remains a questionable solutions for truly female athletes who naturally produce high testosterone levels, it is a step in the right direction.
On the American government consideration, the U.S. Tax Court on February 2, 2010 issued a decision that treatment for gender identity disorders qualifies as medical care under the Internal Revenue Code, allowing the tax deduction for those individuals who seek such treatments (O’Donnabhain v. Commissioner of Internal Revenue, 2010). Recognizing this is but a small step, it is a step in the right direction in recognizing that such an ailment is a medical necessity and is treatable resulting in a productive, fulfilled life for the individuals with the need.
In summation, as more civil rights become legally recognized and protected by various states and the federal government, behavior which was once deemed unacceptable has become tolerable. Equal rights for gay, lesbian, bisexual and transgendered individuals has been recognized as fundamental to achieving a truly free society—freedom to express one’s self and one’s speech as each individual deems fit. The obstacles faced by transgenders are higher in some respects than other LGB individuals primarily because enforcing their rights impedes the rights of others. Ultimately, American society is breaking away from “black and white” gender identification and diving into the gray.
Interested in transgender representation in film? Check out this film analysis on Midnight in the Garden of Good and Evil.
Curley, A. J. (2012, August 8). Expert: Gender testing ‘imperfect’ for female athletes. Retrieved from CNN.com: http://www.cnn.com/2012/08/08/health/athletes-gender-testing/index.html
Currah, P., & Minter, S. (2000). Transgender Equality: A Handbook for Activists and Policy Makers. Washington, DC: National Center for Lesbian Rights, and the National Gay and Lesbian Task Force Policy Institute.
Gammett v. Idaho State Board of Corrections, CV05-257-S-MHW (U.S. District Court, District of Idaho September 7, 2007).
Lesbian Gay Bisexual Transgender and Aids Project. (n.d.). Transgender People and the Law: Know Your Rights. Washington, DC: American Civil Liberties Union.
O’Donnabhain v. Commissioner of Internal Revenue, 134 T.C. No. 4 (U.S. Tax Court February 2, 2010).
Sabatello, M. (2011). Advancing Transgender Family Rights through Science: A Proposal for an Alternative Framework. Human Rights Quarterly (33), 43-75.
Smith v. City of Salem, 378 F.3d 566 (2004).
Trotter, R. (2010). Transgender Discrimination and the Law. Contemporary Issues in Education Research, 3(2), 55-55-60, Retrieved from: http://search.proquest.com/docview/196353665?accountid=40581.