Long before the inauguration, many politicians, activists, writers, and others voiced major concerns about the Trump administration's attitudes towards LGBTQ rights in general — and the rights of transgender people in particular. And now, a month into the administration, the first volley to this effect has been fired: numerous news organizations have reported that the administration is drafting up an order that would revoke rights for transgender students in public schools. This order is much more than a rollback of the previous administration's policy — it's an attack on one of the most vulnerable groups out there: transgender youth.
Under the Obama administration, guidance documents given to schools across the nation declared that transgender youth should be allowed to use the bathroom that aligned with their identity; as per these documents, making students use a bathroom that didn't fit their gender identity violated a federal law about gender discrimination. However, it appears that the Trump White House will revoke that guidance; according to the Washington Post, the administration is now drafting a letter noting that it has "decided to withdraw and rescind the above-referenced guidance documents in order to further consider the legal issues involved."
The issue at the core of this is interpretation of federal law, specifically Title IX, which prohibits any kind of gender discrimination — and whether the Obama guidance violates the rights of states to make their own rules about LGBTQ kids in schools. Chase Strangio of the ACLU explained in a Facebook post that "rescinding the guidance does not change the rights of students under Title IX. Trans students are protected from discrimination by federal law and the administration can't change that."
But it also raises a further question: what rights do young transgender people actually have in America? The answer, unfortunately, seems differ depending on what state transgender teens find themselves residing in. One of the greatest assets for understanding transgender rights across America is the LGBT MAP project, which maintains a complex system of records about every state's particular legal protections (or lack thereof) of LGBTQ people, regarding everything from general housing discrimination laws to hate crime statutes. If you dig around on the site, you'll find that the rights situation in each state is generally much more complex than "transgender people are protected here" or "transgender people are not protected here;" some states have specific protections enshrined in law, but some areas also have "negative" laws, which actually prevent transgender people from accessing or having certain services or protections.
No matter where you live, you should know your rights — and the rights of the people around you.
Health Insurance Coverage
When it comes to teens, coverage of transitioning surgery and general care by health insurance is a major concern. However, coverage of these needs isn't automatically required by law; in fact, some states actually have explicit laws banning Medicaid from being applied to transitioning health needs ( Wyoming is an example, as is Tennessee). The National Transgender Rights Center has an illuminating map of which states have laws on private and public health coverage and how they apply to transgender patients.
Even the Affordable Care Act has certain limits, as Healthcare.Gov explains: "Your health insurance company can’t limit sex-specific recommended preventive services based on your sex assigned at birth, gender identity, or recorded gender — for example, a transgender man who has residual breast tissue or an intact cervix getting a mammogram or pap smear," but "many health plans are still using exclusions such as 'services related to sex change' or 'sex reassignment surgery' to deny coverage to transgender people for certain health care services. Coverage varies by state." The Affordable Care Act's Section 1557 is a non-discrimination clause that forbids any health entity, from those receiving federal funding (like hospitals or Medicaid) to the federal insurance marketplace, from discriminating on the basis of protected characteristics, including gender; but we're not sure how long that will stay in place.
Oddly, while Tennessee has an LGBT hate crimes law in place, it has nothing whatsoever on the books that makes it illegal for private health insurers to discriminate against trans kids, nor anything that bans insurers from "excluding coverage for transgender-specific care." That's the case across a lot of states; only a handful of left-leaning ones, like Illinois, New York, California and Vermont, have specific laws on their books forbidding this kind of discrimination. Absence of laws, when it comes to transgender teens, can be as big a problem as negative laws.
Correct Identity Documents
Identity documents, particularly birth certificates and driver's licenses, are incredibly legally important for transgender teens. As the National Center for Transgender Equality people notes, "Trans people need accurate and consistent IDs to open bank accounts, start new jobs, enrol in school, and travel," but the process of obtaining them is often hugely burdensome and expensive. Again, there are no federal laws in place to protect transgender teens here.
The state-based laws regarding getting one's correct gender on identity documents vary when it comes to what "proof" is required. Lambda Legal points out that many states actually require a letter from a surgeon that confirms gender-affirming surgery, though "California, the District of Columbia, Iowa, New York City, New York State, Oregon, Vermont and Washington State have removed surgical requirements completely for those applying to change a birth certificate."
The difficulty is compounded by the different kinds of identity documents available to US teens, as well as the different standards applied to them within the same state. Birth certificates, driver's licenses and name change documents can have vastly different legal procedures and statuses at the same time. The right to name changes, for instance, is often deeply complicated. As the Guardian noted in November 2016, while reporting on a Georgia judge's refusal to honor a transgender man's request to change his name, many states have laws on the books regulating name changes, which were created to protect against fraud — but these laws can also allow courts to closely monitor or even forbid the name changes of transgender individuals. Some states, like Kansas, have laws on the books allowing shifts in gender identity on driver's licenses, but forbid it on birth certificates.
Interestingly, the process for obtaining passports is the same nationwide, but it's still not quite the same in every case. If you want to get a passport (which you can in the US from the age of 16, or younger if accompanied by an adult), there are two types available: a 10-year one if you "have had appropriate clinical treatment", or a 2-year one if you "are in the process of getting appropriate clinical treatment." When it comes to defining what "appropriate clinical treatment" is, they leave it up to the discretion of your doctor, who has to submit a letter about your treatment, but they do make it clear that "surgery is not a requirement."
Protection From School Bullying
Meet The Transgender Teen Heading To SCOTUS To Fight For His Rights https://t.co/Cmk7eIljdX— IStandWithYou (@Istandwithyou01) February 12, 2017
This is likely to be one of the avenues through which the Trump administration's new "guidelines," if they are formally issued, will be fought. The ACLU's review of transgender rights across the US notes that there are actually a wide variety of states with specific laws on the books that protect transgender students from bullying, but the specific breadth of those laws and where they apply differs from state to state:
The Obama administration and the courts, as we've seen, interpreted Title IX as a federal protection for transgender teens in schools, but the National Center of Transgender Equality reports that the Department Of Education's Office of Civil Rights is temporarily suspended from investigating any complaints by adolescents that they're being discriminated against in an educational environment.