Transgender Competency for Pennsylvania Judges and Court Managers

Transgender Competency For Pennsylvania Judges and Court Managers

May 16th – May 18th and June 12th-14th, 2018

Presenter: Ethan Rice, Fair Courts Project Attorney, Lambda Legal [email protected]

Much of the information included in these materials is from a 2015 First Judicial District Education Committee Trans-Competency training program held in Philadelphia. It has been modified and updated by Judge Joseph Fernandes, Court of Common Pleas, Philadelphia, Thomas Ude, Jr., Legal and Public Policy Director, Mazzoni Center, Andrea Farney, Esq., Triquetra Law, and Ethan Rice, Fair Courts Project Attorney, Lambda Legal. TABLE OF CONTENTS Program Outline ………………………………………………………………………………… 3 Relevant Vocabulary ……………………………………………………………………………. 4 Cultural Competence/Courtroom Etiquette ……………………………………………………... 7 Courtroom Scenarios ……………………………………………………………………………. 8 Ethical Obligations of the Court ……………………………………………………………….. 10 Case Law ……………………………………………………………………………………….. 12 Statistics on PA Transgender Individuals ……………………………………………………….26 Statistics on LGBT Youth ……………………………………………………………………… 27 Statistics on LGBT Violence and Experiences within the Justice System …………………….. 28 Additional Resources …………………………………………………………………………... 29

TRANSGENDER COMPETENCY: For Pennsylvania Judges and Court Managers Brief Outline for 90-minute program 1. Introduction of the speaker and of the program (2 minutes)

2. Cultural Competence, Terminology, Gender Identity and Transgender Status (28 minutes) • Related to sexual orientation, gender identity and expression and their meaning • Characteristics that define a person’s sex • Gender transition facts and myths • Discuss Gender dysphoria • Intersex individuals • Non binary identities • Discuss biased perceptions and their harmful effects of the person economic stability, physical and mental health, and compounding forms of race or ethnic discrimination • How should a judge address transgender parties, attorneys, and other individuals in the courtroom? How should a judge react if an attorney is using the opposing party’s or counsel’s gender identity in a vulgar way based on street myths? Provide tips and guidance.

3. Best practices in the courtroom (30 minutes) • Addressing explicit and implicit bias and disrespect by others in the courtroom whether it be parties, court employees or attorneys o Dress codes, vulgar or rude comments about the person’s physical appearance, names & pronouns o Does it matter if person is in Family, Civil or Criminal court? Discuss any differences/similarities. o Ethical responsibility of judges and court employees • Constructed and communicated stereotypes and the impact of bias on juries o Questioning jurors and witnesses about sexual orientation and gender identity • Discuss the importance of fair, independent and impartial courts.

4. Best Practices in the courthouse and with court employees (30 minutes) • How can court managers and other court employees ensure a welcoming environment for transgender court users? • What scenarios are likely to occur? • Employment Discrimination and transgender status • What about Title VII of the Civil Rights Act of 1964? o Is gender identity, or more specifically being transgender, a protected characteristic in itself? • Discuss whether gender dysphoria is recognized as a potential disability under the ADA. • What is the state of the law in Pennsylvania vis-à-vis the status of the Federal law? Does Pa state law provide more, less or no protection at all for this type of discrimination? o What is the impact on transgender persons from policies that mandate cultural competency and non-discrimination using as example the Unified Justice System of Pa policy on Non-Discrimination and Equal Employment Opportunity?

RELEVANT VOCABULARY There are as many ways to be transgender as there are transgender people. While you may hear the phrase “transgender community,” it should not be taken to mean that all trans people are identical, that they have the same experience or understanding and view of gender. The language trans people use to describe themselves, their bodies, their gender and their sexual orientation varies from person to person. Ally refers to people who confront and challenge different forms of discrimination in themselves and others. Androgyne is a term used to describe persons who may identify and/or express their gender as both male and female, neither male nor female, or in between male and female. Assigned sex/Sex assigned at birth refers to the sex one was assigned at birth. Most often this assignment is made on the basis of the appearance of external genitalia. BiGendered refers to a person having two genders, exhibiting cultural and physical characteristics of male and female roles. Cisgender (pronounced “sis-gender”) and cis are adjectives you might hear, particularly in the context of trans issues; it is the antonym of transgender. Cisgender describes people whose gender identity is consistent with the sex that was assigned to that person at birth. Latin root, “cis” is the opposite of “trans.” Gender expression refers to a person’s behavior and attributes that society perceives as masculine, feminine, or androgynous, such as clothing, hairstyles, etc. Gender identity also called “brain sex,” is one’s deeply felt internal sense of being male, female, both, or neither. It is the primary determinant of sex. Note: gender identity and gender expression do not necessarily correlate and may vary over time or context (e.g., a person could have a female gender identity and a masculine [“butch”] gender expression; a person could have a male or androgyne gender identity and a gender expression that varies between masculine and feminine depending on context). Gender Dysphoria A clinical psychiatric diagnosis, first listed in the DSM-V, that describes an intense, continuous distress resulting from an individual’s sense of the inappropriateness of their assigned sex at birth. In previous versions of the DSM, gender dysphoria was known as gender identity disorder (GID); the criteria listed to diagnose Gender Dysphoria was intended to reflect better and more thorough knowledge. The use of these diagnoses to access treatment, and their status as psychiatric (rather than medical) issues and diagnoses, remain controversial. Note: Not all transgender people experience this condition or meet the criteria for this diagnosis. Gender nonconforming refers to people who do not conform to society’s expectations for people of a given gender or do not conform to expectations for people of any gender.

Intersex is an adjective that is an umbrella term used to describe people who have one or more of a range of variations in sex characteristics that fall outside of traditional conceptions of male or female bodies. For example, intersex people may have variations in their chromosomes, genitals, or internal organs like testes or ovaries. Some intersex characteristics are identified at birth, while other people may not discover they have intersex traits until puberty or later in life. Often intersex people are subjected to surgery on their genitals as newborns or children, and might have been raised with hormone therapy and further surgeries without the person’s consent. Today, many intersex people demand the right to self-determine the form of their own bodies, opposing treatments on infants. LGBT stands for Lesbian, Gay, Bisexual, and Transgender. Same-Gender Loving is a term used in some communities (often African-American) for people who love, date and/or have an attraction to people of the same gender. Often use by those who prefer to distance themselves from the terms they see as associated with primarily white LGBT community or movements. Sexual Orientation is a person’s romantic, physical and/or sexual attraction to same-sex and/or different-sex people. Sexual orientations include: gay, lesbian, bisexual and others. Sexual orientation is distinct from gender identity and gender expression. SOGIE is an acronym for sexual orientation, gender identity and gender expression. Trans is an acceptable abbreviation of transgender or transsexual. Do not use “Tranny” as this is a derogatory and unacceptable abbreviation. Transgender refers to many different kinds of people who experience some discomfort with their sex assigned at birth or expected gender role, including transsexual individuals and other gender variant people. Many gender variant people may not identify with the term transgender. Transgender people may choose to alter their appearance through style and dress. A transgender person might or might not engage in hormone therapy or have surgeries or other procedures so that their bodies match their gender identities. Transition refers to a process or time when a person begins living as the gender they identify with rather than the gender that was assigned to them at birth. It is a complex process that can occur over a long period of time. Transition is highly individualized, and may include some or all of the following personal, medical, and legal steps: telling one's family, friends, and co-workers; using a different name and new pronouns; dressing differently; changing one's name and/or sex on legal documents; hormone therapy; and possibly (though not always) one or more types of surgery. The exact steps involved in transition vary from person to person. Avoid the phrase “sex change.” Transphobia is the systemic, societal, and individual fear, dislike, intolerance, and hate that is felt, expressed, and used to oppress transgender people every day. Transsexual is used to describe people who identify with a gender different than what they were assigned at birth. In some medical and legal discourse, transsexual is used exclusively to refer to

people who have had or intend to have Sex Reassignment Surgery (SRS). Today, many understand that transgender people might choose not to have any form of surgery. Because the meaning of the term transsexual may be controversial, it should not be used or ascribed to someone else unless they explicitly express that the identify with this term. Transvestite is a derisive term, alluding to a mental disorder. Avoid. Two Spirit is a term used in some Native American communities for persons who identify with gender roles of both men and women, and/or are considered a separate or third gender. Terms that do not describe or refer to a person’s gender identity:

Cross-dressing refers to the act of wearing clothing that society typically associates with a different sex. While anyone may wear clothing that is associated with another gender, cross dressing does not indicate a person’s gender identity or sexual orientation.

Drag is a term used to refer to the act of performing in a theatrical, dramatic gendered persona, usually in front of an audience as a form of entertainment. There are persons of all gender identities and sexual orientations who perform and participate in drag.

CORE CULTURAL COMPETENCE / COURTROOM ETIQUETTE • The legal name on the run sheet may be different from the name someone has chosen to use; people who are trans or gender non-conforming may have chosen a name that they wish to be called. Ask people how they want to be addressed and what pronouns they prefer. Refer to them by this name regardless of whether there has been a legal name change. Do think about the person’s privacy when you ask the question and how best to protect it. o For example, you may want to say “I want to make sure to address you correctly, how do you like to be addressed?” You might also ask “What pronouns do you use?” At first, this may seem like a strange thing to do – but using a legal name that does not conform to a person’s identity risks outing them to others, which in turn increases risks to their safety. Also, a person who often experiences being addressed incorrectly may see it as a sign of respect that you are interested in getting it right. (Note: some clients may prefer no pronouns, or gender neutral pronouns such as “they/them/their” or “ze/hir”).

• IF someone asks you to use pronouns that differ from the ones that you would have assumed based on their legal name or the way they appear, then refer to the litigant by the pronouns they identified.

• IF there are information sharing systems or files available to make notes for future court listings, then make a note of the person’s chosen name and correct pronouns in them so that all staff is aware the appropriate name and pronouns for the litigant.

• IF you make a mistake, then apologize and correct yourself as soon as you realize the mistake. Going on as if it did not happen is actually less respectful than making the correction.

• IF someone else makes a mistake in the courtroom, then correct them. It is important to provide a correction, because it helps to avoid future mistakes and prevents any mistaken assumption that might now have been planted in the minds of any other participants in the conversation who heard the mistake.

• IF disrespect happens in your courtroom, then take steps to remedy the situation, the same way you would with any other misbehavior in your courtroom. Make clear that disrespectful treatment by anyone in your courtroom will not be tolerated. Disrespect includes refusing to use a person’s chosen name and/or correct pronouns. Treat everyone with the same level of respect as you would towards any other cisgender individual.

• IF someone in your courtroom is asking invasive, unnecessary questions about surgery or genitalia that aren’t relevant to the issue before the court, take steps to protect the person’s privacy

o Unless you are a medical provider, it is unlikely that you or anyone else in the courtroom will have any reason to need information about a person’s medical history. Medical and surgical treatments are part of some, but not all trans people’s transition process. Trans people’s medical history is not any less confidential than anyone else’s.

• IF someone reveals to you that they are transgender, treat (and ensure that others treat) knowledge of the person’s transgender status as confidential. POSSIBLE SCENARIOS IN COURT SCENARIO 1: Judge • An individual is in court for a PFA hearing. The person’s official court documentation says “John Doe,” the person looks and dresses in a style that is more traditionally feminine in appearance. Ask this person how they would like to be addressed, and what pronouns they prefer. Even better, make it a practice and part of you routine to ask these questions of everyone appearing before you, not only people who you perceive to be trans. Judge: Good morning. I am [name] and my pronouns are he/him. I see the name on the court documents, but I want to make sure to address you correctly. By what name and pronouns would you like to be addressed? Litigant: I would like to be addressed as “Ms. Jane Doe,” and “she/her/hers” Your Honor. Judge: Staff, please make a note that the litigant is to be referred to as “Ms. Jane Doe” for all future court listings. • IF a mistake is made either by yourself, court staff, or counselors, apologize and correct the mistakes made. • DO ensure privacy by asking about this without unnecessary individuals in the courtroom or holding a side bar to gather this information.

SCENARIO 2: Lawyer • The petitioner is a trans woman. Opposing counsel is about to address the petitioner, and is extremely disrespectful. It is up to the judge to take control of the courtroom, and to speak to the lawyer about his/her misconduct Opposing Counsel: Mr. John Doe, you allege that on the 15th of May of 2015, my client- Judge: Excuse me counselor, you will refer to the petitioner as “Ms. Jane Doe.” Opposing Counsel: But Your Honor, it clearly states on the official documentation the HIS name is John Doe. HE wrote it down, and HE signed it.

Judge: We are respectful here at family court. To you, this may seem like a strange thing to address, but a person who often experiences being addressed incorrectly elsewhere is to be respected in this court. I will not tolerate any disrespect in my courtroom; therefore you may proceed counselor, but you will address the petitioner as Ms. Jane Doe or as she or her. SCENARIO 3: Court Clerk A transgender woman calls the court clerk’s office to determine how she can obtain additional copies of the final order granting her name change. Woman: Hello, my name is Angela Smith. I’m trying to find out how I can get more copies of my name change order. Court Employee: What is your former name? Ms. Smith: It was Allen Smith. Court Employee: Hold on, Mr. Smith. Let me find someone who can answer your question. Ms. Smith: Oh, I’m Ms. Angela Smith. Thank you. Court Clerk: I apologize for Court Employee’s mistake, Ms. Smith. Here is the information you need to obtain additional copies of your name change order. Thank you for contacting us.

ETHICAL OBLIGATIONS OF THE COURT

o Judicial officers, Court Personnel and Officers of the Court are responsible for assuring that transgender adults and youth are treated equitably and fairly by everyone they meet in the courthouse and by everyone from whom they receive services.

o Judicial Officers, Court Personnel and Officers of the Court are responsible for developing cultural competence in working with transgender adults and youth to carry out their ethical obligation.

o The requirements governing the professional conduct of judges, court personnel, and officers of the court are: o The Pennsylvania Constitution o Canon of Judicial Ethics o Court Policy o Local Ordinances o Developing Case Law o Pennsylvania Constitution

o PA. CONST. art. V, § 17 . (b) Justices and judges shall not engage in any activity prohibited by law and shall not violate any canon of legal or judicial ethics prescribed by the Supreme Court. o PA. CONST. art. V, § 18 . (d) A justice, judge or justice of the peace shall be subject to disciplinary action pursuant to this section as follows: . A justice, judge, or justice of the peace may be suspended, removed from office or otherwise disciplined for conviction of a felony; violation of section 17 of this article; misconduct in office; neglect or failure to perform the duties of office or conduct which prejudices the proper administration of justice or brings the judicial office into disrepute, whether or not the conduct occurred while acting in a judicial capacity or is prohibited by law; or conduct in violation of a canon or rule prescribed by the Supreme Court. o Pennsylvania Code of Judicial Conduct o Available at http://www.pacode.com/secure/data/207/chapter33/chap33toc.html o Preamble: “This Code shall constitute the ‘‘canon of . . . judicial ethics’’ referenced in Article V, Section 17(b) of the Pennsylvania Constitution, which states, in pertinent part: ‘‘Justices and judges shall not engage in any activity prohibited by law and shall not violate any canon of legal or judicial ethics prescribed by the (Pennsylvania) Supreme Court.’’

o RULE 2.3 Bias, Prejudice, and Harassment A. A judge shall perform the duties of judicial office, including administrative duties, without bias or prejudice. B. A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, or engage in harassment, including but not limited to bias, prejudice, or harassment based upon race, sex, gender identity or expression, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, and shall not permit court staff, court officials, or others subject to the judge’s discretion and control to do so. C. A judge shall require lawyers in proceedings before the court to refrain from manifesting bias or prejudice, or engaging in harassment, based upon attributes including but not limited to race, sex, gender identity or expression, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, against parties, witnesses, lawyers or others. D. The restrictions of paragraphs (B) and (C) do not preclude judges or lawyers from making legitimate reference to the listed factors, or similar factors, when they are relevant to an issue in a proceeding. Pennsylvania is currently one of seven states that include “gender identity” in the code of judicial conduct. o The Unified Judicial System of Pennsylvania (UJS) Policy on Non-Discrimination and Equal Employment Opportunity o Available at http://www.pacourts.us/assets/files/setting-435/file- 214.pdf?cb=5c1d9e o Prohibits discrimination or harassment on the basis of race, color, sex, sexual orientation, gender identity or expression, national origin, age, disability, or religion. o Any such discrimination or harassment by any Personnel of the System of Related Staff (as defined in the UJS Policy on Non-Discrimination and Equal Employment Opportunity) will not be tolerated. o To report discrimination, notify the District Court Administrator or the President Judge by phone or email. See this document for full complaint procedures: http://www.ccpa.net/documentview.aspx?DID=5739 o Alternatively, complaints may be filed by contacting the Administrative Office of Pennsylvania Courts, Office of Human Resources: (717) 795-2080; [email protected] o Code of Conduct for Employees of the Unified Judicial System o Available at http://www.pacourts.us/assets/files/setting-429/file- 212.pdf?cb=18f383 o VII. B. vi. shall not engage in any form of discrimination, harassment, or retaliation against any person as prohibited by law or court policy;

CASE LAW AND STATUTES I. VALIDITY OF LOCAL ORDINANCES PROTECTING INDIVIDUALS FROM DISCRIMINATION ON THE BASIS OF GENDER IDENTITY PA Ordinances or Statutes

Forty-six municipalities have implemented ordinances to prohibit discrimination on the basis of sexual orientation, gender identity or both. Cities such as Philadelphia (1982), City of Harrisburg (1983), City of Pittsburg (1997), City of York (1998), City of Lancaster (2002), Erie County (2002), City of Scranton (2003), Allegheny County (2009), City of Bethlehem (2011), City of reading (2009), Wilkes-Barre (2016), and many others.

PA State Cases

Hartman v. City of Allentown, 880 A.2d 737 (Pa. Commw. Ct. 2005) Holding that the Pennsylvania Human Relations Act (PHRA) did not preempt a local ordinance, which explicitly protects individuals based on gender identity and/or sexual orientation.

Federal Hates Crimes Law The Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act of 2009, 18 U.S.C. § 249, specifically protects LGBT individuals. It covers criminal acts or attempted acts of violence motivated by a victim’s actual or perceived gender, sexual orientation, gender identity, or disability, as well as other listed characteristics

II. FAMILY LAW

PA State Cases

In re Adoption of R.B.F., 569 Pa. 260, 803 A.2d 1195 (2002) Holding that a parent’s same-sex unmarried partner may adopt that parent’s children without the parent’s relinquishment of parental rights, upon a finding of cause and a determination of the best interests of the child.

M.A.T. v G.S.T., 2010 PA Super 8, 989 A.2d 11 (2010) Superior Court of Pennsylvania holding that a parent who is in a same-sex relationship bears no special evidentiary presumption in a child custody case and that the trial court erred when it applied evidentiary presumption against a parent in a same-sex relationship and denied her petition for modification of custody order.

Other State Cases

Mayfield v. Mayfield, No. 96AP030032, 1996 WL 489043 (Ohio Ct. App. Aug. 14, 1996) Court upheld a transgender parent’s shared parenting plan because there was no evidence in the record that the parent would not be a “fit, loving and capable parent.”

Magnuson v. Magnuson, 141 Wash. App. 347, 170 P.3d 65 (2007)

Holding that the trial court did not impermissibly consider parent’s transgender status in entering the final parenting plan. Explaining that visitation must be determined based on the needs of the child, not the parent’s transgender status; finding that the trial court had appropriately formulated the plan in accordance with its evaluation of the children’s needs, rather than the parent’s transgender status.

PA Federal Cases

Whitewood v. Wolf, 992 F. Supp. 2d 410 (M.D. Pa. 2014) Holding that Pennsylvania’s Defense of Marriage Act as an unconstitutional infringement on the fundamental rights of lesbian, gay, and bisexual Pennsylvanians, and striking down the Act.

III. SCHOOL

PA Federal Cases

Doe v. Boyertown Area School District, No. 17-1249 (E.D. Pa. 2017), appeal pending ___ F.3d ___ (3d Circuit) Federal district court rejected claims by four students that school district’s its policy allowing transgender students to use restrooms and locker rooms that conform to their gender identity violated their rights to privacy. Appeal to the Third Circuit is pending at the time of printing.

Evancho v. Pine-Richland School District, No. 2:16-01537 (W.D. Pa. 2017) Federal district court struck down a public school district’s policy of requiring students to use restrooms that aligned with their sex assigned at birth, holding that the policy denied the trans students equal protection in violation of the U.S. Constitution.

Other State Cases

Doe v. Regional School Unit 26, 2014 ME 11 (Jan. 30, 2014) Parents and the Maine Human Rights Commission asserted claims for unlawful discrimination in education and unlawful discrimination in a place of public accommodation after transgender student was excluded from the communal girls’ restroom at school. Holding that school violated the Maine Human Rights Act and discriminated against transgender student based on student’s sexual orientation when it prohibited student from using the girls’ communal bathroom and required her to use the unisex staff bathroom.

IV. PRISONERS’ RIGHTS

PA Federal Cases

Williams v. Folino, CIV.A. 12-507, 2013 WL 3147286 (W.D. Pa. June 19, 2013) Department of Corrections’ employees’ motion to dismiss denied. Plaintiff’s claims were as follows: “that Defendants were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment (Count I) and treated him differently than other similarly situated

inmates who were not transgender in violation of his right to equal protection under the Fourteenth Amendment (Count II).”

Wolfe v. Horn, 130 F. Supp. 2d 648 (E.D. Pa. 2001) §1983 action against prison officials and medical staff for failure to provide access to hormones and other treatment for prisoner’s gender identity disorder. Court held that (1) fact issues remained as to whether officials were deliberately indifferent to inmate’s gender identity disorder; (2) officials reasonable relied on medical professionals’ opinions as to propriety of withdrawing inmate’s hormonal therapy; and (3) officials did not violate inmate’s equal protection rights.

Farmer v. Carlson, 685 F. Supp. 1335 (M.D. Pa. 1988) Holding that denial of access to hormones to transgender prisoner was not an Eighth Amendment violation in this case because the denial resulted from an informed medical opinion. Implying that denial of access to hormones to trans prisoner could be an Eighth Amendment violation under different circumstances: “In order to state a cognizable claim for improper medical care, a prisoner must allege acts or omissions sufficiently harmful to evidence of deliberate indifference to serious medical needs. It is only such indifference that can offend evolving standards of decency in violation of the Eighth Amendment.” Id. At 1339 (internal citations omitted). Also holding that there was no denial of due process or equal protection, or infliction of cruel and unusual punishment, in placing transgender prisoner in administrative segregation for four and on-half moths, in the interest of the institutional security and prisoner’s own protection, pending transfer to another institution where prisoner would not need to be segregated from general population.

Other Federal Cases—Fourth and Fifth Amendment Claims

Shaw v. D.C., 944 F. Supp. 2d 43 (D.D.C. 2013) Former pretrial detainee, a transgender woman, who underwent sex reassignment surgery and had her sex legally changed to female, brought action against United States Marshals Service (USMS), USMS Marshals, District of Columbia, police chief, and police officers, alleging under §1983 that defendants violated her Fourth Amendment rights by having male employees perform a search of her person that involved intimate physical contact, exposure of private body parts, verbal harassment, and was conducted in front of male detainees, and that defendants violated her Fifth Amendment right to due process by holding her in a bullpen with male detainees for transport, having male employees search her, and holding her in a single cell in the male area of the detention center. Court denied motions to dismiss for failure to state a claim based on argument that conduct did not violate Fourth and Fifth Amendments under clearly establish law; court granted one defendant’s motion to dismiss for failure to state a claim for policy making liability and granted another defendant’s motion to dismiss for failure of service.

Other Federal Cases—Eighth Amendment Claims Based on Denial of Access to Medical Treatment

Adams v. Federal Bureau of Prisons, et al., (nationwide settlement of Massachusetts case)

Ms. Adams, a transgender woman diagnosed with Gender Identity Disorder, sued the Federal Bureau of Prisons (BOP) to receive appropriate medically-necessary treatment for her GID. Ms. Adam’s challenge to BOP’s treatment of transgender prisoners resulted in BOP ending its so- called “freeze frame” policy in which treatment for any person with GID is kept frozen at the level provided at the time he or she entered the federal prison system.

More decisions recognizing that failure to provide medical treatment (i.e., hormone therapy) to trans prisoners could constitute a violation of prisoners’ Eighth and Fourteenth Amendment rights: Soneeya v. Spencer, 851 F. Supp. 2d 228 (D. Mass. 2012); Alexander v. Weiner, 841 F. Supp. 2d 486 (D. Mass. 2012); Fields v. Smith, 653 F.3d 550 (7th Cir. 2011); Koznitzer v. Frank, 711 F. Supp. 2d 874 (E.D. Wis. 2010); De’Lonta v. Angelone, 330 F.3d 630 (4th Cir. 2003); Brown v. Zavaras, 63 F.3d 967 (10th Cir. 1995); Phillips v. Michigan Department of Corrections, 731 F. Supp. 792 (W.D. Mich. 1990) aff’d, 932 F.2d 969 (6th Cir. 1991); Meriwether v. Faulkner, 821 F.2d 408 (7th Cir. 1987).

Decisions finding that denying trans prisoners access to medical treatment (i.e., hormone therapy) did not violate prisoners’ Eighth and Fourteenth Amendment rights: Young v. Adams, 693 F. Supp. 2d 635 (W.D. Tex. 2010); Praylor v. Texas Department of Criminal Justice, 430 F.3d 1208 (5th Cir. 2005); Maggert v. Hanks, 131 10 F.3d 670 (7th Cir. 1997) (holding that prisoner could not establish claim absent expert testimony refuting psychiatrist’s belief that prisoner did not have gender dysphoria, and except in special circumstances, Eighth Amendment does not entitle prison inmate to curative treatment for gender dysphoria); Long v. Nix 877 F. Supp. 1358 (S.D. Iowa 1995) aff’d, 86 F.3d 761 (8th Cir. 1996); Lamb v. Maschner, 633 F. Supp. 351 (D. Kan. 1986).

V. LANDLORD-TENANT

Other State Cases

Wilson v. Phoenix House, 25755/11, 2013 WL 6500169 (NY Sup. Ct. Dec. 10, 2013) Homeless transgender woman brought action against residential drug treatment facility and the director of its induction unit, alleging various claims arising from her stay and ultimate departure from facility. Court held that (1) woman’s participation in program constituted “housing accommodation,” and (2) woman stated claims alleging discrimination in violation of New York State and City Human Rights Laws.

Hispanic Aids Forum v. Estate of Bruno, 16 A.D.3d 294, 792 N.Y.S.2d 43 (N.Y. App. Div. 2005) Non-profit organization, offering prevention and education programs related to HIV/AIDS in Latino communities, initiated action against landlord of building where it offices were located claiming that landlord’s refusal to renew its lease, based on its transgender clients’ use of common areas in building, violate New York State and New York City Human Rights Law. Court held that organization failed to state cause of action for gender discrimination.

VI. HEALTH

Federal Law Section 1557 is part of the Affordable Care Act that prohibits discrimination in health coverage and care. It prohibits discrimination on the basis of race, color, national origin, age, disability or sex, which includes discrimination based on gender identity.

VII. NAME CHANGES

PA Regulations Department of Transportation has a policy to request gender change ID on driver licenses and identification cards. The applicant must meet the criteria as indicated on the instruction of the dmv form.

Department of Health has a policy since 2016 to allow individuals to update gender marker on their birth certificates under a certain criteria.

PA State Cases

Matter of McIntyre, 552 Pa. 324, 715 A.2d 400 (1998) Supreme Court reversed denial of name change petition by petitioner, a transgender woman, because there was no indication that she sought to change her name to commit fraud or to evade financial responsibilities. The Court held that a petitioner’s medical transition, which had been the stated basis for the denial, is irrelevant to whether her petition should be granted. “The trial courts has wide discretion in ruling upon a petition to change name and should exercise its discretion in a way as to comport with good sense, common decency and fairness to all concerned and to the public. Petitions for change of name may be denied upon lawful objection or if the petitioner seeks a name change in order to defraud the public.” Id. at 328 (internal citations omitted). Further, the Court explained that a transgender individual’s transition, including medical transition or surgery, “are not a matter of governmental concern.” Id. at 330.

In re A.S.D., 2017 PA Super. 369 (Pa. Super. Ct. Nov. 20, 2017) In appeal from denial of transgender woman’s name change, and remanding for hearing where no objection had been filed. In concurring opinion, court “[wrote] further to emphasize that A.S.D.'s compliance with the technical requirements of the Judicial Change of Name statute, and the evidence proffered by objectors to the petition, should be the sole considerations utilized by the trial court when ruling on a name change petition.”

Other State Cases

In re E.P.L., 26 Misc. 3d 336, 891 N.Y.S.2d 619 (N.Y. Sup. Ct. 2009) Transgender individual applied for name change, requesting that notice not be published in newspaper and that proceeding be sealed. Court held that (1) purpose of name change was not fraudulent, and (2) request for non-publication was justified. When name changes are granted in NY (as in PA1), publication is required in a newspaper of general circulation in the county in

1 54 Pa. C.S.A. §701, the PA name change statute provides that “(ii) Except as provided in subparagraph (iii), by order, direct that notice be given of the filing of the petition and of the date set for the hearing on the petition and

which the petitioner lives. N.Y. Civ. Rights Law § 63. A Trans person seeking a gender affirming name change might not want their name change published in a newspaper because they might not want to be outed as trans to the entire community that they live in.

VIII. EMPLOYMENT DISCRIMINATION

SUPREME COURT CASES Oncale v. Sundowner Offshore Servs., 523 U.S. 75 (1998). Held: Same-sex harassment is actionable under Title VII. Issue: Does workplace harassment violate Title VII’s prohibition of discrimination because of sex when the harasser and the victim are the same sex? Facts: Plaintiff quit his job after several male co-workers forced him into “sex-related, humiliating actions.” 523 U.S. at 77. He complained to a company Safety Compliance Clerk to no avail, being told that two of the co-workers “picked [on] him all the time too.” 523 U.S. at 77. Rationale: The Court cites Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 682 (1983) holding that Title VII’s prohibition of discrimination “because…of…sex” protects men as well as women. “[S]tatutory prohibitions often go beyond the principal evil [they were passed to combat] to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed. Title VII prohibits “discriminat[ion] …because of …sex” in … the “terms” or “conditions” of employment. Our holding that this includes sexual harassment must extend to sexual harassment of any kind that meets the statutory requirements.” 523 U.S. at 79-80.

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). Held: Title VII prohibits employment discrimination based on failure to conform to sex stereotypes. Issue: Does Title VII extend beyond the traditional notion of sex and include discrimination based on a woman’s failure to conform to gender stereotypes of how a woman should look and behave? Facts: Price Waterhouse denied Anne Hopkins partnership in the firm, at least in part, because she did not act in conformity to how some male partners expected a female to act. Partners advised her to “walk more femininely, talk more femininely, dress more femininely, wear makeup, have her hair styled, and wear jewelry” to improve her partnership prospects. She was told she should consider attending “charm school.” Rationale: The Court notes that “Congress’ intent to forbid employers to take gender into account in making employment decisions appears on the face of the statute.” 490 U.S. 228, 239

that the notice be treated as follows: (A) Published in two newspapers of general circulation in the county where the petitioner resides or a county contiguous to that county. One of the publications may be in the official paper for the publication of legal notices in the county. (B) Given to any non-petitioning parent of a child whose name may be affected by the proceedings. (iii) If the court finds that the notice required in subparagraph (ii) would jeopardize that safety of the person seeking the name change or his or her child or ward, the notice require shall be waived by order of the court. Upon granting the request to waive any notice requirement, the court shall seal the file. In all cases filed under this paragraph, whether or not the name change petition is granted, there shall be not public access to any court record of the name change petition, proceeding or order, unless the name change is granted but the file is not sealed. The records shall only be opened by order of the court in which the petition was granted based upon a showing of good cause or at the applicant’s request.”

(emphasis added). “In the specific context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender.” 490 U.S. 228, 250.

PA STATE & FEDERAL CASES Blatt v. Cabela’s Retail, Inc., No. 5:14-cv-04822, (E.D. Pa. May 18, 2017) Held: Plaintiff’s gender dysphoria condition was not excluded under the ADA’s exclusion provision. Issue: Does the ADA’s exclusionary provision, 42 U.S.C. § 12211(b) prevent an individual with a gender identity disorder from bringing a claim? Facts: Kate Lynn Blatt worked for Cabela’s Retail starting in September 2006. Cabela’s terminated her in February 2007. Blatt alleged Cabela’s terminated her on the basis of her having gender dysphoria. She alleged her gender dysphoria substantially limited one or more life activities, including but not limited to interacting with others, reproducing, and social and occupational functioning. Cabela’s brought a partial motion to dismiss, arguing the ADA exclusion of gender identity disorders applied to Blatt’s condition so she didn’t have protection under the ADA’s exclusion provision. Rationale: The District Court emphasizes that the ADA is a remedial statute and must be broadly construed because it is designed to eliminate discrimination against the disabled in all facets of society. Exclusions of remedial statutes should be construed narrowly. The District Court notes that the ADA exclusions fall into two categories: (1) non-disabling conditions concerning sexual orientation or identity; and (2) disabling conditions that are associated with harmful or illegal conduct. In this case, “Blatt’s gender dysphoria, goes beyond merely identifying with a different gender and is characterized by clinically significant stress and other impairments.”

Dobre v. National Railroad Passenger Co. (“AMTRAK”), 850 F. Supp. 284 (E.D. Pa. 1993) Held: Title VII sex discrimination does not cover claims involving a gender-identity transition of male to female. The PHRA sex and disability discrimination prohibitions do not extend to discrimination based on transsexualism. Issue: Does sex discrimination under Title VII include discrimination against a man because he is transitioning to become a female? Does sex discrimination under the PHRA include discrimination against a transsexual? Is transsexualism actionable under the PHRA as a non-job related handicap or disability? Facts: At the time of hire, Dobre presented herself as a man to AMTRAK. Shortly thereafter, she gave notice to her supervisors she was receiving hormone injections to begin the process of becoming female. Dobre brought a discrimination claim after AMTRAK told her she had to have a doctor’s note to dress as a female; she had to dress as a male, and she could not use the women’s bathroom. Additionally, Dobre’s supervisors referred to her by her male name and they also moved her desk out of public view. She alleged sex discrimination under Title VII and disability and handicap discrimination under the PHRA. AMTRAK brought a motion to dismiss. Rationale: The District Court relies heavily on Ulane v. Eastern Airlines, Inc., 742 F.2d 1081 (7th Cir. 1984), cert. denied, 471 U.S. 1017, 105 S.Ct. 2023, 85 L.Ed.2d 304 (1985) and Holloway v. Arthur Andersen & Co., 566 F.2d 659, 662 (9th Cir. 1977). Both cases reject the argument that Title VII prohibits discrimination based upon transsexualism due to the reasoning

that Congress didn’t intend Title VII to protect transsexuals from discrimination. These cases also stand for the proposition that “sex” discrimination in Title VII has a narrow meaning: (1) sex in Title VII refers to an individual’s distinguishing biological or anatomical characteristics while “gender” refers to an individual’s sexual identity; and (2) Title VII’s prohibition on sex- based discrimination is designed to eliminate barriers to women’s advancement in the workplace due to traditional stereotypes of female’s abilities and role. As to sex discrimination under the PHRA, the District Court notes the Pennsylvania Supreme Court has not addressed whether the term “sex” in the PHRA is broader than the term “sex” under Title VII to cover claims based on transsexualism. The District Court relies on Wood v. C.G. Studios, Inc., 660 F.Supp. 176 (E.D. Pa. 1987) and on then existing Title VII precedent that Title VII does not extend to transsexuals. As to disability discrimination under the PHRA, the District Court notes that not every diagnosable disorder constitutes an “impairment” under the PHRA and that the PA Supreme Court in Civil Service Comm’n v. Pennsylvania Human Relations Comm’n, 527 Pa. 315, 591 A.2d 281, 284 (1991), holds that there must be proof of an actual impairment under the PHRA.

Hartman v. City of Allentown, 880 A.2d 737 (Pa. Commw. Ct. 2005). Held: a local anti-discrimination ordinance prohibiting sexual orientation and gender identity discrimination is not preempted by the PHRA.

Holt v. NW Pennsylvania Training Partnership Consortium, Inc., 694 A.2d 1134 (Pa. Commw. Ct. 1997) Held: Plaintiff did not state a claim for disability-related discrimination under the Pennsylvania Human Relations Act (PHRA) because she didn’t allege that transsexualism affects any bodily function or limits her major life activities. Issue: Does transsexualism constitute a disability under the Pennsylvania Human Relations Act? Facts: Plaintiff worked for employer as an Employability Assessment Specialist as part of a federal jobs program under the Job Training and Partnership Act. In July 1992, about 3 years into Plaintiff’s employment, Plaintiff told his supervisor he was diagnosed as a transsexual and that he planned to undergo a medically recommended transition from male to female. Plaintiff further told his supervisor that he would assume a female role by dressing and presenting as a woman. The employer initially accepted Plaintiff’s transition. A couple of months later, however, employer told Plaintiff he would be disciplined if he dressed as a woman. After the warning, Plaintiff legally changed his name from Richard to Kristine. Plaintiff then adopted a female identity and dressed as a woman. A few weeks after Plaintiff began dressing as a woman, employer reassigned her, ultimately firing her shortly thereafter for allegedly violating the employer’s dress code. Rationale: The Pennsylvania Supreme Court, in Civil Service Commission v. Human Relations Commission, 527 Pa. 315, 591 A.2d 281 (1991), held that a condition, to be actionable under the PHRA “regarded as” prong defining disability “must show that he [or she] is regarded as having a physiological disorder, cosmetic disfigurement or anatomical loss which affects the body systems” set forth in the Pennsylvania regulations at 16 Pa. Code §44.4(ii)(A). The Plaintiff “did not aver that her transsexualism constituted a disorder or a malfunction of any system of the body.” Holt, 694 A.2d at 1142 n. 11. The Commonwealth Court also finds the federal district court’s opinion in Dobre v. National Railroad Passenger Corporation (“Amtrak”), 850 F. Supp. 284 (E.D. Pa. 1993) instructive on the issue of whether transsexualism constitutes a disability under the PHRA. (stating in Dobre the Plaintiff was not disabled because she didn’t allege any

organic disorder of the body, nor that she was limited in any major life activities and that to be a perceived handicap, there must be proof of an actual impairment).

Prowel v. Wise Business Forms, Inc., 579 F.3d 285 (3d Cir. 2009). Held that Brian Prowel had shown a sufficient factual dispute as to whether or not his former employer had discriminated against him for being an effeminate man. Sex discrimination includes sex stereotyping or gender non-conformity as per Price Waterhouse. Here, Brian Prowel had sufficient evidence to show harassment based on his high voice, how he walked, failing to curse, being well-groomed, filing his nails, crossing his legs, and having a tendency to shake his foot “the way a woman would sit.” Prowel’s being gay and harassed because of his sexual orientation did not prevent him from bringing a Title VII sex discrimination claim based on sex stereotyping.

Stacy v. LSI Corp. No. 10-4693 (E.D. Pa. May 3, 2011)(denial of Def.’s Motion to Dismiss)(Doc. 33); (Transcript filed as Doc. 37 on 9/12/11). Defendant brought a motion to dismiss Plaintiff’s disability discrimination claim under the PHRA. Plaintiff had alleged in her complaint that she had been diagnosed with a gender identity disorder and that she had substantial limitations in one or more life activities, including, but not limited to reproduction, sleeping, concentration, ability to interact with others and certain physical activities. The Pennsylvania Human Relations Commission filed an amicus brief with the position that gender identity disorder is not specifically or expressly excluded under the plain language of the PHRA, that the PA general assembly did not intend to exclude gender identity from PHRA coverage, and impairments must be viewed on a case by case basis to determine if the impairment is a disability under the PHRA. The District Court denied the motion to dismiss, noting the procedural posture of the case and distinguishing Dobre and Holt because in those cases the plaintiffs had failed to allege a physical or mental impairment which substantially limited a major life activity. The District Court also relied on the PA Supreme Court decision in Civil Service Commission v. Human Relations Commission, 527 Pa 315, 591 A.2d 281(1991)(holding that the plaintiff in that case insufficiently pled a PHRA disability for he obesity because he did not allege any limitations of life activities, nor a physiological disorder or that his obesity affected any body systems.

OTHER FEDERAL AND EEOC CASES Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005). Held: Discrimination because of Gender non-conforming behavior can constitute discrimination “because …of…sex” and be actionable under Title VII. An individual who is transgender is protected under Title VII. A transgender individual has standing to bring an equal protection claim based on sex discrimination. Issue: Whether an individual who is transgender is a member of a protected class for purposes of Title VII and the Equal Protection Clause. Facts: Phillip (now Philecia) Barnes was a police officer with the Cincinnati Police Department. She was living as a male, transitioning to a female, when she applied to be a police sergeant. She excelled on her sergeants exam, but failed her field probationary period. She alleged discrimination based on a failure to conform to sex stereotypes and brought Title VII and Equal Protection claims. She prevailed at a jury trial.

Rationale: The court relies on its previous decision in Smith v. City of Cincinnati, stating “[s]ex stereotyping based on a person’s gender non-conforming behavior is impermissible discrimination, irrespective of the cause of that behavior; a label, such as “transsexual,” is not fatal to a sex discrimination claim where the victim has suffered discrimination because of his or her gender non-conformity.” 401 F.3d at 737 citing Smith, 378 F.3d 566, 575 (6th Cir. 2004).

Chavez v. Credit National Auto Sales, LLC., 641 Fed. Appx. 883 (11th Cir. 2016)(unpublished). Held: Plaintiff established triable issues of fact concerning her employer’s discriminatory intent and whether gender bias was a “motivating factor” in her termination. Issue: Did Plaintiff adduce sufficient evidence to survive summary judgment in her Title VII discrimination claim that she was terminated because she is a transgender person? Facts: Jennifer Chavez worked as an auto mechanic. Her employer terminated her for sleeping on the job. While failing to convince the 11th Circuit of sufficient evidence of pretext in the record, the Court did find sufficient evidence the employer had a “mixed-motive” in terminating her. Her evidence included not ever being disciplined before she announced her gender transition; that the decision-maker was “very nervous” about her gender transition and the “possible ramifications” and that she was blamed for a co-worker leaving and that the decision- maker thought she was going to “negatively impact his business.” The decision-maker also instructed her not to wear a dress to and from work once her gender transition was complete. Additional evidence of discrimination was that she was subjected to heightened scrutiny after the employer learned of her gender transition plans. Rationale: “Sex discrimination includes discrimination against a transgender person for gender nonconformity.” 641 Fed. Appx at 884 citing Glenn v. Brumby, 663 F.3d 1312, 1316-17 (11th Cir. 2011).

Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011). Held: “[A] government agent violates the Equal Protection Clauses’ prohibition of sex-based discrimination when he or she fires a transgender or transsexual employee because of his or her gender non-conformity.” 663 F.3d at 1320. Issue: Whether discrimination against a person because of gender non-conformity constitutes sex-based discrimination under the Equal Protection Clause? Facts: Vandiver Elizabeth Glenn’s sex was assigned male when she was born, but had felt since puberty that she is a woman. She was diagnosed with gender identity disorder and began to take steps to transition from male to female under the care of health care providers. The process included living as a woman outside of the workplace, a prerequisite to sex reassignment surgery. While still presenting as a man, Glenn was hired by the Georgia General Assembly’s Office of Legislative Counsel. After hire, Glenn informed her supervisor she was transsexual and in the process of becoming a woman. On Halloween, OLC held a work party, permitting employees to report to work in costume, and Glenn came to work presenting as a woman. The OLC head told Glenn her appearance was inappropriate because Glenn was a male dressed and made up as a woman and it was unsettling to think of someone dressed in women’s clothing with male sexual organs inside the clothing. The OLC head told Glenn that is was unnatural. About a year later, Glenn informed her supervisor that she was going to proceed with her gender transition and would begin to report to work as a woman and was also changing her legal name. Glenn’s supervisor notified the OLC head, and he terminated Glenn right away. The OLC head thought

Glenn’s gender transition was inappropriate, would be disruptive, that some people would have a moral issue with it and that it would make coworkers uncomfortable. Rationale: The Eleventh Circuit reasons that Price Waterhouse “held that Title VII barred not just discrimination based on biological sex, but also gender stereotyping - failing to act and appear according to expectations defined by gender.” 663 F.3d at 1316. “A person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes. ‘[T]he very acts that define transgender people as transgender are those that contradict stereotypes of gender-appropriate appearance and behavior.’” 663 F.3d at 1316 (citing Ilona M. Turner, Sex Stereotyping Per Se: Transgender Employees and Title VII, 95 Cal. L. Rev. 561, 563 (2007)).

Hively v. Ivy Tech Community College of Indiana, 853 F.3d 339 (7th Cir. 2017)(en banc) Held: Discrimination on the basis of sexual orientation is a form of sex discrimination under Title VII. Issue: Does Title VII’s prohibition of discriminatory acts “based …on…sex” include discriminatory acts taken on the basis of sexual orientation? Facts: Kimberly Hively worked as a part-time adjunct professor at Ivy Tech Community College for 5 years. During that time, she applied at least six times for a full-time position. The College did not hire her for any of those positions and eventually terminated her adjunct contract as well. She brought a pro se charge of discrimination to the EEOC and a pro se federal district court claim. Her sole basis for the claim was that the College discriminated against her because of her sexual orientation. Kimberly Hively is a lesbian. Rationale: The 7th Circuit Court of Appeals rejects the argument that Congressional attempts and failures to amend Title VII to include “sexual orientation” in the language dictates a result on the meaning of “because…of…sex” in the 1964 statute. The 7th Circuit reasons that it is too difficult to draw a reliable inference based on the attempts. The 7th Circuit relies on the Oncale rationale that “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” 853 F.3d at 344 quoting Oncale, 523 U.S. at 79-80. The 7th Circuit also relies on Price Waterhouse’s “critical point” that “Hopkins had alleged that her employer was discriminating only against women who behaved in what the employer viewed as too “masculine” a way – no makeup, no jewelry, no fashion sense.” 853 F.3d at 346. “Any discomfort, disapproval, or job decision based on the fact that the complainant-woman or man-dresses differently, speaks differently, or dates or marries a same- sex partners, is a reaction purely and simply based on sex.” 853 F.3d at 347. The 7th Circuit also reasons that “a person who is discriminated against because of the protected characteristic of one who whom she associates is actually being disadvantages because of her own traits” – or the associational theory of Loving v Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967)(anti-miscegenation laws were unjustifiable as discrimination based on race).

Macy v. Holder Appeal No. 0120120821 Agency No. ATF-2011-00751 (Apr. 2012) Held: Claims of discrimination based on transgender status, also known as claims of discrimination based on gender identity are recognized under Title VII’s sex discrimination prohibition.

Issue: Does Title VII’s prohibition of employment discrimination “based on … sex,” include intentional discrimination against a transgender individual because that person is a transgender individual? Facts: Mia Macy, a police detective in Arizona, decided to relocate to San Francisco for family reasons. At the time, she was known as a man. She interviewed by telephone for a position with the Bureau of Alcohol, Tobacco, Firearms and Explosives (Agency) for which she was qualified. At the time of the interview, she still presented as a man. She was told she had the position, pending a background check. She was contacted by the outside contractor who was responsible for filling the position to do the background check. She then informed the contractor that she was in the process of transitioning from male to female. The contractor informed the Agency and shortly thereafter she was told the position was no longer available due to federal budget restrictions. She later found out that another individual was hired for the position. She made a EEO complaint to the Agency that the Agency discriminated against her on the basis of sex, sex stereotyping, sex due to gender transition/change of sex, and sex due to gender identity. A dispute arose with the Agency about whether or not they would investigate her claim under Title VII and EEOC’s Part 1614 regulations for a discriminatory failure to hire based on gender identity, change of sex, and/or transgender status. Rationale: Title VII “sex” discrimination includes both the biological differences between men and women and gender. The term “gender” includes biological sex, but also the cultural and social aspects associated with masculinity and femininity. This opinion relies on Price Waterhouse and identifies the numerous cases post-Price Waterhouse recognizing the availability of sex stereotyping claims. The EEOC also finds instructive Glenn v. Brumby, explaining “[a] person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes. ‘[T]he very acts that define transgender people as transgender are those that contradict stereotypes of gender-appropriate appearance and behavior.’” Glenn v. Bruby, 663 F.3d 1312, 1316-17 (11th Cir. 2011).

Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004). Held: An individual who is transgender can bring a discrimination claim under Title VII where the individual is alleging failure to conform to sex stereotypes about how a man should look and behave. Issue: Did the district court err by relying on pre-Price Waterhouse precedent from other circuits that hold Title VII does not provide protection to individuals who are transgender? Facts: The City of Salem employed Jimmie Smith as a lieutenant in the Fire Department. Smith worked for the Department for 7 years without incident. After this, Smith began transitioning from a male to a female at work. Smith was also diagnosed with Gender Identity Disorder. His coworkers noticed his more female like appearance and mannerisms that he began expressing at work. Smith met with his immediate supervisor to inform him of the GID diagnosis and treatment. She advised her supervisor that she saw her treatment eventually including physical transformation from male to female. Smith’s supervisor informed the Chief of the Fire Department about Smith’s behavior and GID. Shortly thereafter, the City took measures to devise a plan to terminate Smith’s employment. Rationale: “[D]iscrimination against a plaintiff who is a transsexual – and therefore fails to act and/or identify with his or her gender – is no different from the discrimination directed against [the plaintiff] in Price Waterhouse who, in sex-stereotyping terms, did not act like a woman. Sex stereotyping based on a person’s gender non-conforming behavior is impermissible

discrimination, irrespective of the cause of that behavior; a label, such as “transsexual” is not fatal to a sex discrimination claim where the victim has suffered discrimination because of his or her gender non-conformity.” 378 F.3d 566, 574-75. The district court erred in relying on a series of pre-Price Waterhouse cases such as Ulane v. Eastern Airlines, Inc., 742 F.2d 1081 (7th Cir. 1984)(Congress didn’t intend Title VII to apply to anything other than the traditional concept of sex); and Holloway v. Arthur Andersen & Co., 566 F.2d 659, 661-63 (9th Cir. 1977)(no protection for discrimination against a transsexual because that is discrimination based on “gender” and not “sex.”).

CONSTITUTION & STATUTES U.S. Const. Amend. XIV, § 1 (Equal Protection Clause). “No State shall …deny to any person within its jurisdiction the equal protection of the laws.”

42 U.S.C. § 1983 – “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress…”

Americans with Disabilities Act (ADA), 42 U.S.C. §§12101-12214. 42 U.S.C. § 12211(b) – “Under this chapter, the term disability shall not include-(1) transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders; (2) compulsive gambling, kleptomania, or pyromania; or (3) psychoactive substance use disorders resulting from current illegal use of drugs.”

Title VII of the 1964 Civil Rights Act (Title VII) 42 U.S.C. § 2000e-2(a)(1) – “It shall be an unlawful employment practice for an employer (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex or national origin;” or (emphasis added).

42 U.S.C. § 2000e-2(a)(2) - “It shall be an unlawful employment practice for an employer to limit, segregate, or classify his employees or applicants for employment in any way which would deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.” (emphasis added).

42 U.S.C. § 2000e-16b(a)(1) – “[a]ll personnel actions affecting [federal] employees or applicants for employment…shall be made free from any discrimination based on … sex…” (emphasis added).

Pennsylvania Human Relations Act (PHRA), 43 P.S. §§951-963.

43 P.S. § 955(a) – “It shall be an unlawful discriminatory practice, unless based upon a bona fide occupational qualification…(a) For any employer, because of the …sex…of any individual…to bar or discharge from employment such individual, or to otherwise discriminate against such individual with respect to compensation, hire, tenure, terms, conditions or privileges of employment, if the individual is the best able or most competent to perform the services required.

EXECUTIVE ORDERS Executive Order 2016-04, Equal Employment Opportunity, Commonwealth of Pennsylvania, Governor’s Office, April 7, 2016. Codified at 4 Pa. Code §1.861 “No agency under the Governor’s jurisdiction shall discrimination against any employee or applicant for employment on the basis of race, color, religious creed, ancestry, union membership, age, gender, sexual orientation, gender identity or expression, national origin, AIDS or HIV status, or disability.”2 Rescinds Executive Order 2003-10, Equal Employment Opportunity.

IX. HOUSING

Federal Law Fair Housing Act prohibits discrimination based on sex in the sale or rental housing and mortgage lending. Discriminating against a transgender person or because the individual fails to conform to gender stereotypes is prohibited. HUD issued regulations in 2012 that applies to all public and assisted housing and rental assistance programs including homeless shelters and other temporary housing and federally insured house mortgages.

X. ACCESS TO BENEFITS

Other State Cases

Doe v. State, Department of Public Welfare, 257 N.W.2d 816 (Minn. 1977) Transgender woman appealed from a decision of the State Welfare Department denying her medical assistance benefits to fund sex reassignment surgery. Courts held that: (1) the total exclusion of sex reassignment surgery from eligibility for medical assistance payments was void; (2) standard of medical necessity requiring applicant for benefits to prove by conclusive evidence that requested medical treatment will eliminate disability and render applicant self- supporting was invalid; and (3) the Welfare Department’s determination to deny medical assistance benefits to transgender woman was arbitrary and unreasonable.

2 There is not private right of action under Executive Order 2016-04, see 4 Pa. Code §1.865 (Dec. 2017).

STATISTICS ON PA TRANSGENDER INDIVIDUALS (National Transgender Discrimination Survey – www.equalitypa.org.)

1. 74% reported experiencing harassment or mistreatment on the job; 26% lost a job.

2. In grades K-12, individuals identified as transgender or gender non-conforming reported rates of harassment (74%), physical assault (23%), and sexual violence (9%). 11% left school in K- 12 or higher education settings.

3. Experienced poverty at a higher rate than the general population; 12% have household income of 10,000 or less, compared to 4% of the general population, a 3 to 1 ratio as the rate of poverty.

4. 49% were verbally harassed or disrespected in a public place such as hotels, restaurants, buses, airports and government agencies.

5. 15% were refused medical care due to their gender identity or expression.

STATISTICS ON LGBT YOUTH

6. 30% of LGBT youth reported physical violence from a family member after coming out. 26% were forced to leave home (Lambda Legal, Youth in the Margins, 2001. https://www.lambdalegal.org/publications/youth-in-the-margins).

7. 20-40% of all homeless youth identify as LGBT (Lambda Legal, Youth in the Margins, 2001).

8. 1.8% of LGBTQ students missed at least one entire day of school in the past month because they felt unsafe or uncomfortable, and a tenth (10.0%) missed four or more days in the past month. (GLSEN (Gay, Lesbian & Straight Education Network), 2015 National Climate Survey, https://www.glsen.org/article/2015-national-school-climate-survey).

9. 27.0% of LGBTQ students were physically harassed (e.g., pushed or shoved) in the past year because of their sexual orientation and 20.3% because of their gender expression. (GLSEN, 2015 National Climate Survey).

10. 48.6% of LGBTQ students experienced electronic harassment in the past year (via text messages or postings on Facebook), often known as cyberbullying. (GLSEN, 2015 National Climate Survey).

11. 32.0% of LGBTQ students who reported that they did not plan to finish high school, or were not sure if they would finish, indicated that they were considering dropping out because of the hostile climate created by gendered school policies and practices. (GLSEN, 2015 National Climate Survey).

12. Although a majority (83.6%) of students had an anti-bullying policy at their school, only 10.2% of students reported that their school had a comprehensive policy (i.e., that specifically enumerate both sexual orientation and gender identity/expression). (GLSEN, 2015 National Climate Survey).

13. As a result of rejection, isolation, and/or violence, LGBTQ youth experience substantially higher rates of major depression, generalized anxiety disorder and substance use or dependence (American Psychological Association, 2012, http://www.apa.org/pi/lgbt/resources/just-the-facts.aspx).

14. Though gay and transgender youth represent just 5 to 10 percent of the nation’s overall youth population, they compose 13 to 15 percent of those currently in the juvenile justice system. A majority of those arrests occur in schools (Center for American Progress, “Restoring Justice,” 2014, https://www.americanprogress.org/issues/lgbt/reports/2014/12/17/103488/restoring- justice).

15. LGBTQ youth of color are disproportionally suspended from school; from conflicts arising due to anti-LGBTQ bullying, to in school displays of affection, LGBTQ youth of color are often singled out in ways their white LGBTQ peers are not (Center for American Progress, 2012).

STATISTICS ON LGBT VIOLENCE AND EXPERIENCES WITH THE JUSTICE SYSTEM

1. 80% of LGBTQ murder victims in 2014 were people of color (GLAAD (Gay & Lesbian Allegiance against Defamation), 2014, https://www.glaad.org/publications/tdorkit).

2. 55% of related hate murders were transgender women (GLAAD, 2014).

3. 19% of respondents reported hearing a judge, attorney or other court employee make negative comments about a person’s sexual orientation, gender identity or gender expression (Lambda Legal, Justice Out of Balance, 2012. https://www.lambdalegal.org/publications/fair- courts_justice-out-of-balance).

4. 16% of respondents indicated that their own sexual orientation or gender identity was raised when it was not relevant (Lambda Legal, Justice Out of Balance, 2012).

5. Nearly one in six transgender Americans has been to prison—and nearly half of all black transgender people (Lambda Legal, Transgender Incarcerated People in Crisis, https://www.lambdalegal.org/publications/trt_transgender_prisoners_in_crisis).

6. Transgender people were 13 times more likely to be sexually assaulted than non-transgender people in prison (Lambda Legal, Transgender Incarcerated People in Crisis).

7. 60% of TGNC respondents who had been in jail or prison reported being placed in a single- gender section of that jail or prison that did not match their gender identity. (Lambda Legal, Protected and Served?, https://www.lambdalegal.org/protected-and-served/jails-and- prisons#2b).

8. TGNC respondents with feminine identities reported being wrongly placed far more often than TGNC respondents with masculine identities: 70% of TGNC-feminine respondents reported being wrongly placed. 47% of TGNC-masculine respondents reported being wrongly placed. (Lambda Legal, Protected and Served?).

9. Outside of those lives taken during the shooting at Pulse Nightclub, NCAVP recorded 28 anti- LGBTQ homicides, an increase of 17% from 24 in 2015 (NCAVP (National Coalition of Anti-Violence Programs), LGBTQ & HIV-Affected Hate Violence in 2016, avp.org/wp- content/uploads/2017/06/NCAVP_2016HateViolence_REPORT.pdf).

10. Of the 28 reported hate violence non-Pulse homicides, apart from the tragedy at Pulse, 79% were people of color: 18 people who were Black and 4 who were Latino (NCAVP, LGBTQ & HIV-Affected Hate Violence in 2016).

11. Nineteen of the homicides (68%) were transgender and gender nonconforming people. Of the total number of homicides, 61% (17) were transgender women of color (NCAVP, LGBTQ & HIV-Affected Hate Violence in 2016).

ADDITIONAL RESOURCES If you want to take your awareness of these issues further, here are some resources for transgender information not all inclusive: • Mazzoni Center (LGBT health and wellness center) – www.mazzonicenter.org; 215- 563-0652 Legal Services 1-866-LGBT-Law (Toll Free); 215-563-0657 (providing direct legal representation to LGBT residents in a wide range of civil matters in Pennsylvania) • Trans-health Information Project (TIP) – http://www.galaei.org/programs/transgenderhealthtip/ (multi-service project serving trans and gender variant people in the greater Philadelphia area; provides support groups and individual case management) • William Way Community Center – www.waygay.org; 215-732-2220 (Philadelphia’s LGBT community center) • The Attic Youth Center – www.atticyouthcenter.org; 215-545-4331 (services for LGBTQ youth ages 14-21) • National Center for Transgender Equality – www.transequality.org • The Transgender Law Center – www.transgenderlawcenter.org • Transgender Legal Defense and Education Fund – www.transgenderlegal.org • Lambda Legal – www.lambdalegal.org/issues/transgender-rights • Equality Pa – www.equalitypa.org