How Can the Obama Administration Advance Fairness & Equality for Transgender Americans?

Following an initial release highlighting important actions needed for LGBT service members and veterans, this second release in a series of highlights from HRC’s 2015 Blueprint for Positive Change – actions the administration can take to change the lives of LGBT Americans for the better – identifies some of the numerous areas significantly impacting transgender people that the Obama Administration can address within various departments of the federal government.

“From the classroom to the workplace, transgender Americans face unique and significant challenges that the federal government can and should help address,” said HRC Government Affairs Director David Stacy. “During his remaining time in office, President Obama has the opportunity to continue his unprecedented legacy of profound progress for the LGBT community by implementing these important and vitally necessary changes for the transgender community – changes within the federal government that will make a truly substantial difference.

While the HRC 2015 Blueprint for Positive Change recommends important actions the administration should take for the entire LGBT community, some of the specific steps that should be taken to help with the challenges faced significantly by transgender people include:

Department of Education

• Ensure That Transgender Students Are Treated Respectfully in Schools

Transgender youth frequently experience discriminatory behavior in schools ranging from the refusal of teachers to use appropriate names and pronouns to punitive enforcement of dress codes. As a result of discrimination, transgender youth are more likely than their counterparts to be pushed out of school. The Department of Education should release further guidance pertaining to transgender and gender non-conforming students ensuring full protection under Title IX of the Education Amendments of 1972.

• Mandate Public Notice for Receipt of Title IX Religious Exemptions by Colleges and Universities

Title IX of the Education Amendments of 1972 allows religious colleges and universities to be exempted from non-discrimination requirements on the basis of sex provided that the college or university affirmatively seeks an exemption from the Department of Education. Recently, some religious colleges and universities have requested an exemption from Title IX with regards to transgender students. Students should have the ability to know which schools have claimed a right to discriminate against them in advance of applying for admission. The Department of Education should issue a regulation mandating that religious colleges and universities provide public notice of their receipt of a religious exemption.

Department of Labor

• Ensure That Federal Contractors Are Aware of Their Non-Discrimination Obligations

Executive Order 11246, as amended, prohibits federal contractors from discriminating on the basis of sexual orientation and gender identity. For other protected categories, such as race and disability, the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) has clarified contractors’ obligations with regards to non-discrimination compliance. The OFCCP should issue guidance to ensure that federal contractors are aware of their non-discrimination obligations towards LGBT employees.

• Ensure Treatments Relating to Gender Transition Qualify for FMLA Leave

The lack of guidance from the Department of Labor (DOL) in defining “serious medical conditions” under the Family and Medical Leave Act (FMLA) may result in the unfair denial of leave under FMLA for transgender individuals undergoing medical or psychological treatments associated with gender transition. DOL should issue an official ruling stating that medical or psychological treatments associated with gender dysphoria are not “cosmetic” procedures under FMLA regulations and that hormone therapy as part of gender transition constitutes a “regimen of continued treatment.” Furthermore, DOL should provide guidance for leave for mental health conditions under FMLA, including an example of an individual who would qualify for leave for psychotherapy for gender dysphoria and for all subsequent medical and psychological treatment.

Department of Health and Human Services

• End Discrimination Against LGBT People in Insurance and Health Care

LGBT Americans are at increased risk for discrimination in health care, and yet most states do not provide insurance and health care non-discrimination protections based on sexual orientation or gender identity. While the federal Affordable Care Act offers critical non-discrimination protections in insurance and health care, the Department of Health and Human Services Office for Civil Rights has not yet released regulations to implement these protections. In order to protect LGBT people from discrimination in health care and ensure that transgender people receive full insurance coverage, the Office for Civil Rights should offer broad and inclusive non-discrimination regulations under the Affordable Care Act.

• Ensure Crisis Counselors Have LGBT Cultural Competency and Are Trained in Suicide Prevention

Sadly, LGBT populations are at heightened risk for depression and suicide, frequently due to discrimination, bias, and family rejection. LGBT youth are up to four times more likely to attempt suicide than their peers. In one national survey, 41 percent of transgender respondents had reported attempting suicide at least once. However, the federally funded National Suicide Prevention Lifeline does not currently require crisis counselors to receive LGBT cultural competency training. The Substance Abuse and Mental Health Services Administration, which funds the National Suicide Prevention Lifeline, should work with providers and linked crisis centers to ensure that LGBT cultural competency and suicide prevention training is provided.

• Create an Inclusive Federal Definition of Bullying

HRC’s Growing Up LGBT in America, a groundbreaking survey of more than 10,000 LGBT-identified youth ages 13 to 17, found that LGBT youth are more than twice as likely as their straight peers to experience verbal bullying in school. Unfortunately, not all teachers or youth recognize bullying of LGBT youth as a problem. The Substance Abuse and Mental Health Services Administration (SAMHSA) provides well-respected resources on the subject of bullying that reach a wide audience. The Department of Health and Human Services should direct SAMHSA to create a federal definition of bullying that explicitly includes sexual orientation and gender identity.

• Ensure That Youth Shelters Are Inclusive, Welcoming, and Do Not Discriminate

Almost 40 percent of homeless youth today identify as LGBT. Once on the street, these youth are at an increased risk for sexual exploitation and trafficking, as well as criminal activity. Ensuring that these youth feel welcomed in youth shelters is key to serving this population and increasing their potential for success. Transgender youth also face unique challenges with regards to shelters. Failure to house transgender youth consistent with their gender identity prevents many transgender youth from accessing the safe emergency housing they desperately need. The Department of Health and Human Services should require all programs operating youth shelters that receive federal funding to adopt explicit LGBT protections, including cultural competency training for staff who have contact with youth. In addition, the Department of Health and Human Services’ Administration for Children and Families should issue guidance to ensure transgender youth have access to gender-specific housing consistent with their gender identity.

Department of Housing and Urban Development

• Incorporate Sexual Orientation and Gender Identity Questions Within Nation-Wide Surveys on Homelessness

The Department Housing and Urban Development (HUD) currently collects an annual count of homeless people called the Point-in-Time Survey. LGBT people, especially youth, are disproportionately impacted by homelessness and are at an increased risk of living on the streets. HUD should incorporate questions regarding sexual orientation and gender identity in surveys collecting data and information on homeless individuals and should take steps to collect similar data on homeless youth.

Department of Justice

• Review Sex-Segregated Placement of Transgender Inmates in Federal Prison Facilities

Current Department of Justice (DOJ) regulations implementing the Prison Rape Elimination Act (PREA) require consideration of gender identity when making confinement facility placement determinations for transgender inmates. However, there is no publicly available information that DOJ has placed transgender inmates in facilities consistent with their gender identity rather than in housing based solely on identity documents. Consistent with PREA, the Department of Justice should direct the Bureau of Prisons to begin placing transgender inmates, in accordance with the safety concerns of the inmate, in facilities consistent with the gender identity of the inmate.

• Provide Proper Medical Treatment for Transgender Inmates in Federal Prison Facilities

The Bureau of Prisons denies proper medical treatment to transgender inmates who wish to begin or to continue medical treatment in the course of their gender transition process by prohibiting them from initiating any new treatment. The Bureau of Prisons should direct the Office of National Policy Review to issue a Change Notice to the Program Statement regarding Patient Care to ensure that treatment for gender dysphoria is considered medically necessary care, and that all transgender prisoners are allowed to begin, to continue, and to progress with psychological and medical treatment options for gender dysphoria.

White House/Executive

• Amend the Manual for Courts Martial to Add Gender Identity as a Biased Crimes Protected Category

The Manual for Courts Martial is the official guide that governs courts martial in the United States military. In 1999, through an executive order, President Bill Clinton amended the Manual for Courts Martial to allow certain biases to serve as an aggravating factor in sentencing, including sexual orientation. President Obama should amend the executive order to add gender identity motivated bias to the list of biased based crimes to conform with the categories adopted by Congress in the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act

Department of Homeland Security

• Ensure Humane Treatment for Transgender Detainees

LGBT people are particularly vulnerable to abuse when they enter institutionalized settings. The United Nations Special Rapporteur on Torture has noted that “transgender prisoners [are highly susceptible] to physical and sexual abuse if placed within the general prison population.” Responding to the alarming rate of sexual violence in American confinement facilities, Congress enacted the Prison Rape Elimination Act (PREA) with bipartisan support in 2003. The Department of Homeland Security is charged with implementing the law in the immigration detention setting. Implementation of PREA has been slow, and as a result, transgender detainees continue to suffer overwhelmingly from sexual assault, emotional and psychological harm, and inhumane treatment. The Department of Homeland Security should direct U.S. Immigration and Customs Enforcement (ICE) to carry out implementation of PREA with greater speed. In addition, ICE should utilize alternative forms of detention for transgender detainees to improve safety outcomes.

• Provide Proper Medical Treatment for Transgender Detainees

The Department of Homeland Security does not consistently provide proper medical treatment to transgender inmates who wish to begin or to continue medical treatment in the course of their gender transition process. The Department of Homeland Security should direct U.S. Immigration and Customs Enforcement (ICE) to ensure that all transgender detainees are allowed to begin, to continue, and to progress with all necessary psychological and medical treatment options for gender dysphoria.

Department of Veterans Affairs

• Ensure Transgender Veterans Have Full Access to Transition Related Care

Currently, the Department of Veterans Affairs does not provide the full range of medically necessary care to transgender veterans. The Department of Veterans Affairs should revise its regulations to ensure transgender veterans have access to all medically necessary services and treatments for transition related care.

Department of Defense

• Revise Restrictions on Transgender Individuals Serving in the Military

There are approximately 15,500 actively serving transgender members of the U.S. military, making the Department of Defense (DOD) the largest employer of transgender people in America. These courageous service members are forced to serve in silence by DOD medical regulations prohibiting their service and requiring their separation from the military if discovered. These regulations are outdated and out of step with current medical practice. Unlike the statutory ban that interfered with lesbian, gay, and bisexual service members from serving (known as “Don’t Ask, Don’t Tell”) the ban on transgender military service is regulatory and only requires action by the Department of Defense to update. The Secretary of Defense should immediately direct the chief medical personnel in each service branch to update their medical regulations, which would pave the way for transgender military service. In addition, the Secretary of Defense should issue regulations that extend non-discrimination protections to transgender service members.

The entire 2015 Blueprint for Positive Change can be found here.