What Are the Implications of the 2016 Election for the Human Security of Transgender People in the US?
BY DEBORAH AVANT AND KATHE PEREZ
- The ability of a Trump administration to roll back policies that improve the security of transgender people depends on how the policies were made.
- Many of the Obama administration’s policies were made through executive orders and agency guidance and are thus vulnerable to quick reversal.
- Though no one knows for sure what the new administration will do, transgender people undergoing treatment might be advised to get their federal documents in order before Jan 20.
What the executive branch giveth, the executive branch can taketh away
The Obama administration changed a number of policies to improve the lives of transgender people. It is unclear how the Trump administration will approach these issues. He has expressed support for transgender people at times, but the Republican platform was unsupportive of the LGBTQ community as are several of his advisors, including the vice-president elect.
Were a Trump administration inclined to roll-back the Obama policies, its ability to act will be affected by how the policy was made. Executive orders and departmental guidance are the easiest to change. Legislation requires congressional action and is more difficult. Rulings by commissions and courts require new rulings, which often also require new people making them.
Below we list some key changes in each category. We then offer some advice on action transgender people might take now. We end with a list of resources, including other analyses of how a Trump presidency might affect the LGBTQ community and some global, national and Colorado organizations that might be useful.
1. EXECUTIVE ORDERS AND GUIDANCE
Bans on discrimination: A 2014 executive order protects transgender people against discrimination from the federal government or contractors that work for the federal government.
Guidelines for behavior: A 2015 OSHA guide suggests that employers should let transgender employees use facilities that match their gender identity.
2016 guidance to schools and other educational providers that receive federal money advises against gender discrimination and that schools let transgender students use the facilities that match their gender identities.
Passport: In 2010 the United States Department of State announced that when a passport applicant presents a certification from an attending medical physician that the applicant has undergone appropriate clinical treatment for gender transition, the passport will reflect the new gender. This streamlined the process by which transgender people could get official documents reflecting their gender identities.
Social Security Card: As of 2013 the Obama administration removed the requirement for gender reassignment surgery to change the gender on a social security card. As with requirements for passports, the applicant need only medical certification of appropriate treatment for gender transition (or a passport, amended birth certificate, or court ordered gender change).
Military Service: In June 2015, Defense Secretary Ash Carter issued a Directive banning discrimination on the basis of sexual orientation in the military. He followed with a Directive Type Memorandum in June 2016 allowing transgender service members to serve openly.
Insurance coverage: The Affordable Care Act (section 1557) ties health care to civil rights and makes it illegal to discriminate, including against transgender people, and stipulates that healthcare providers must provide transition related care to transgender people. Reversing or replacing Obamacare would require congressional action. The particular language of the rule was created within Health and Human Services, however, and could be altered without approval from Congress. It is unclear how far it could go, though, given its connection to long-standing civil rights statutes.
3. COMMISSION AND COURT RULINGS
EEOC: The Equal Employment Opportunity Commission has issued a number of rulings that affect the employment opportunities for transgender people and the environments in which they work.
Courts: A Federal Court blocked the 2016 guidance on student access to bathrooms that fit their gender identity and the Supreme Court will review that decision this year.
4. STATE LAW
Many issues (including name changes) are governed by state. The National Center on Transgender Equality can help individuals find the relevant laws in their states. Though some states make this easier than others, these policies should not be immediately affected by the change at the national level.
Advice for Transgender People
Though no one knows for sure what the new administration will do, transgender people undergoing treatment might be advised to get their federal documents in order before Jan 20. Even without an official name change, a transgender person can have the gender marker on their social security card and passport changed with a medical certification. The name change process should be uncontroversial.
- The Human Rights Campaign website has a good overview of potential changes for the entire LGBTQ community. They also have highlighted potential appointments particularly unfriendly to the LGBTQ community.
- Buzzfeed also has an analysis of what the Trump presidency could mean for LGBTQ lives.
- The Transgender Law Center of California has a legal information helpline.
- Lamba Legal has a post-election frequently asked questions and answers.
- Whitman Walker provides healthcare and guidance for the transgender community.
- The Task Force
- Lambda Legal
- The National Center on Transgender Equality
- The Transgender Law Center
- One Colorado
- Gender Identity Center
- GLB Center
- Denver Health Transgender Health Services
- Out Boulder
Bloggers and advocates: