It’s always a good thing to know your rights. It’s also almost always a difficult task.
The ACLU of MAINE spends a lot of its time spreading the word about our rights. Whether it’s visiting high school classrooms to talk about students’ 4th Amendment privacy rights, or clarifying at coalition meetings the role local law enforcement SHOULDN’T have in enforcing federal immigration law, we like to get the word out about what the government can and can’t do to us.
Today I’d like to spread the word about the rights of transgender people. I was inspired at the beginning of the year when the Obama Administration, through the Office of Personnel Management, added gender identity to the list of protected classes by federal equal Employment Opportunity policies. You can read the press release here. In the spirit of this important step forward, below is some information on the rights of transgender people. Help us get the word out! Forward a link to this blog to your friends and loved ones.
Are there laws that clearly prohibit discrimination against transgender people?
Yes. Maine, California, Colorado, Hawaii, Illinois, Iowa, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, Washington and the District of Columbia all have such laws. list of "U.S. jurisdictions prohibiting discrimination in public employment on the basis of gender identity and expression."
Are there laws that specifically protect transgender students from discrimination?
Maine, California, Iowa, Minnesota, New Jersey, Oregon, Vermont and Washington have laws explicitly protecting transgender students from discrimination and/or harassment. Moreover, there are local school districts such as Decatur (GA) and Kalamazoo (MI) with similar protections. Some states have comprehensive laws banning bullying and harassment of any sort but not mentioning gender identity.
The federal law prohibiting sex discrimination in educational programs receiving federal funds (Title IX of the Education Amendment Acts of 1972) bars sexual harassment of a transgender student. Title IX also prohibits gender-based harassment, which includes harassment based on a student’s refusal to conform to sex stereotypes. Therefore, Title IX ought to protect transgender students from harassment and discrimination, but the courts are still grappling with the issue.
Does the U.S. Constitution protect transgender people from discrimination?
Although the U.S. Supreme Court has never considered this question, we think the answer is yes. It is important to remember, however, that constitutional protections only cover discrimination or mistreatment by the government.
The U.S. Constitution’s guarantee of equality protects transgender people from being treated differently by the government because of fear or hostility. If, for example, a government supervisor imposes a dress code on a male-to-female transgender worker that is different from that required of other female workers for no reason other than his or her dislike of transgender people, that violates the constitutional right to equal treatment. Equality protections for transgender people are not yet nearly as robust as those for people of color and women.
In our view, the First Amendment, which bars government from censoring speech or expression, also protects our right to dress in a way consistent with our gender identity. The way we dress is an important form of personal expression.
Finally, individuals have important interests in the determination of their gender and the expression of their gender through personal appearance and mannerisms, which are interests that we believe the Due Process Clause recognizes and protects. These constitutional arguments, however, have not yet achieved widespread acceptance by courts.
State constitutions are also a source of protection against discrimination by government actors.
To read more about the rights of transgender people, visit the ACLU’s webpage on the issue
