Transgender Law Making Strides

Transgender rights law – that is protecting the rights of people whose identity does not match the genitalia they were born with – has exploded in the field and in the political arena, becoming a new wave of civil rights in this country, according to experts.

And experts concerned about affixing privileges to specialized groups say that the transgendered population is taking privilege too far.

It's "another step down the road towards radical individualism," said Linda Chavez, civil rights expert and president of the Center for Equal Opportunity. "I think it’s going too far.

"We gave certain rights and protections to people so they could not be discriminated against because they were born with certain characteristics and couldn’t change them. Now we are facing a situation where they can change their characteristics … and then we confer upon them special protections. It’s sowing confusion and it’s very problematic," Chavez said.

But too far or not, it appears transgender rights are already bestowed on transgendered individuals.

"It’s totally exploding – in law, the amount of litigation, the laws passed, the law reviews written," said Paisley Currah, associate professor of political science at City University of New York and board member at the Transgender Law and Policy Institute.

"Transgendered people have become more organized and [are] moving beyond merely a support system for each other to actually fighting for their rights," she added.

"Transgender" is actually an umbrella term for a diverse group of people bound together by one characteristic: they do not identify with the gender into which they were born. They include individuals who dress and behave as the opposite sex, as well as those who have undergone surgery to change their sex, also known as transsexuals.

The number of transgendered people in the United States has been largely undocumented, but is still considered to be small, said Pauline Park, a transgendered woman and co-chair of the New York Association for Gender Rights Advocacy.

"This is a marginalized community, the group is small compared to the total population," Park said. "This translates into political weakness. But compared to what it was 10 years ago, it’s huge and more powerful and largely more effective."

Its effectiveness is apparent in the changes in law, academia and social work.

So far, 46 jurisdictions -- including states, counties and cities -- have laws prohibiting discrimination against transgendered people. Minneapolis, Minn., wote its first anti-discrimination law against transgendered people in 1975. New York City recently rewrote its human rights law to protect "gender identity and expression" against all forms of discrimination, including housing and employment.

There are also a number of major public and private employers who have protections for transgendered people on the books and even local union bargaining agreements that include such provisions.

And that is not all. Today there are at least two court cases pending over the legal status of transgendered persons in marriage, as they relate to spousal rights and child custody. There are even more cases being hashed out over employment discrimination and hate crimes.

"There are a lot of legal issues coming out now," said Julie Greenberg, a professor at Thomas Jefferson School of Law who has written extensively on transgender rights for law review journals. "For one, the transgender movement is willing to come out of the closet and push the issue and two, people are becoming more aware of it."

Opponents of gay rights who say the transgender movement is a logical outgrowth of the successes of the gay and lesbian movement are concerned that the breakdown in gender identity will result in a breakdown in family.

"The common link is the desire to disestablish or to deconstruct the two-sex system which most people view as natural," said David Wagner, a law professor at Regent University, which was founded by religious conservative Pat Robertson.

Wagner said he thinks the gay rights movement, much less transgendered rights, has a long way to go in terms of acceptance.

"I just don’t think that anti-discrimination in this case has been as widely accepted by the American people in the same way Americans accepted civil rights in the 1960s," he said.

That may be evidenced in the lackluster response of states to recognizing same-sex unions, despite a great push from the community. But people like Park are convinced that the transgender movement -- with or without the coattails of the gay rights movement -- is making great strides.

"When we formed three years ago, no one from New York City or New York State was talking seriously about transgender law," she said. "Now, transgender rights are at the forefront" of gay rights issues.

"We have been able to transform our cause," she said.