SEXUAL ORIENTATION and GENDER IDENTITY October 2, 2019 10336 ICLE: State Bar Series

SEXUAL ORIENTATION AND GENDER IDENTITY October 2, 2019 10336 ICLE: State Bar Series

Wednesday, October 2, 2019 SEXUAL ORIENTATION AND GENDER IDENTITY

6 CLE Hours Including | 1 Professionalism Hour Copyright © 2019 by the Institute of Continuing Legal Education of the State Bar of Georgia. All rights reserved. Printed in the United States of America. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form by any means, electronic, mechanical photocopying, recording, or otherwise, without the prior written permission of ICLE.

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Who are we? How does SOLACE work? What needs are addressed?

SOLACE is a program of the State If you or someone in the legal Needs addressed by the SOLACE Bar of Georgia designed to assist community is in need of help, simply program can range from unique medical those in the legal community who email [email protected]. Those emails conditions requiring specialized referrals have experienced some significant, are then reviewed by the SOLACE to a fire loss requiring help with clothing, potentially life-changing event in their Committee. If the need fits within the food or housing. Some other examples lives. SOLACE is voluntary, simple and parameters of the program, an email of assistance include gift cards, food, straightforward. SOLACE does not with the pertinent information is sent meals, a rare blood type donation, solicit monetary contributions but to members of the State Bar. assistance with transportation in a accepts assistance or donations in kind. medical crisis or building a wheelchair ramp at a residence.

Contact [email protected] for help. The purpose of the SOLACE program is to allow the legal community to provide help in meaningful and compassionate ways to judges, lawyers, court personnel, paralegals, legal secretaries and their families who experience loss of life or other catastrophic illness, sickness or injury.

TESTIMONIALS

In each of the Georgia SOLACE requests made to date, Bar members have graciously stepped up and used their resources to help find solutions for those in need.

A solo practitioner’s A Louisiana lawyer was in need A Bar member was dealing Working with the South quadriplegic wife needed of a CPAP machine, but didn’t with a serious illness and in Carolina Bar, a former rehabilitation, and members have insurance or the means the midst of brain surgery, paralegal’s son was flown of the Bar helped navigate to purchase one. Multiple her mortgage company from Cyprus to Atlanta discussions with their members offered to help. scheduled a foreclosure on (and then to South Carolina) insurance company to obtain her home. Several members for cancer treatment. the rehabilitation she required. of the Bar were able to Members of the Georgia and negotiate with the mortgage South Carolina bars worked company and avoided the together to get Gabriel and pending foreclosure. his family home from their long-term mission work.

Contact [email protected] for help. iii FOREWORD

Dear ICLE Seminar Attendee,

Thank you for attending this seminar. We are grateful to the Chairperson(s) for organizing this program. Also, we would like to thank the volunteer speakers. Without the untiring dedication and eﬀ orts of the Chairperson(s) and speakers, this seminar would not have been possible. Their names are listed on the AGENDA page(s) of this book, and their contributions to the success of this seminar are immeasurable.

We would be remiss if we did not extend a special thanks to each of you who are attending this seminar and for whom the program was planned. All of us at ICLE hope your attendance will be beneﬁ cial as well as enjoyable We think that these program materials will provide a great initial resource and reference for you.

If you discover any substantial errors within this volume, please do not hesitate to inform us. Should you have a diﬀ erent legal interpretation/opinion from the speaker’s, the appropriate way to address this is by contacting him/her directly.

Your comments and suggestions are always welcome.

Sincerely, Your ICLE Staﬀ

Jeﬀrey R. Davis Executive Director, State Bar of Georgia

Michelle E. West Director, ICLE

Rebecca A. Hall Associate Director, ICLE AGENDA

PRESIDING: Dennis G. Collard, Program Co-Chair, Founding Partner, Collard Shockley LLC Brandon C. Goldberg, Program Co-Chair, Stonewall Bar Association, College Park Jessica MacAllister, Program Co-Chair, Holland & Knight LLP, Atlanta Harris Mason, Program Co-Chair, Silver & Archibald, LLP

7:45 REGISTRATION AND CONTINENTAL 11:35 PRACTICAL LEGAL SUPPORT FOR THE BREAKFAST TRANSGENDER COMMUNITY Amanda Kay Seals, Bondurant Mixson & Elmore, 8:15 WELCOME AND PROGRAM OVERVIEW Atlanta Dennis G. Collard Brandon Goldberg, President, Stonewall Bar 12:05 LUNCH (Included in registration fee.) Association 12:30 NATIONAL TRANSGENDER RIGHTS ADVOCACY 8:25 BEYOND THE ACRONYMS: UNDERSTANDING M. Dru Levasseur, National LGBTBar NOMENCLATURE AND NUANCE IN THE LGBTQIA, GNC & SOGI LEGAL MOVEMENT 1:10 FAIRNESS, SAFETY AND OPPORTUNITY FOR [PROFESSIONALISM] THE GEORGIA LGBT+ COMMUNITY Beth Littrell, Southern Poverty Law Center Jeff Graham, Georgia Equality Dennis G. Collard 1:50 BREAK 9:25 MUNICIPAL CIVIL RIGHTS LEGISLATION – THE CITY OF DORAVILLE AS A MODEL 2:00 A VIEW FROM THE GEORGIA GENERAL Stephe Koontz, Member of the Doraville City ASSEMBLY: CONVERSION THERAPY, RFRA Council AND STATE LEVEL ANTI-DISCRIMINATION LEGISLATION 10:05 BREAK W. Matthew Wilson, Georgia State House Representative, District 80, Wilson Law Firm, 10:15 LGBT+ FAMILY BUILDING Atlanta Lori Surmay, Law Office of Lori M. Surmay, Atlanta 2:40 HOT TOPICS, CITIZENSHIP AND IMMIGRATION Scott Titshaw, Mercer University School of Law 10:55 SEXUAL ORIENTATION, GENDER IDENTITY AND 3:25 ADJOURN MONEY MATTERS Dana P. Schaffner, Shaffner Law Office, Atlanta TABLE OF CONTENTS

FOREWORD...... 6

AGENDA...... 7

SEXUAL ORIENTATION AND GENDER IDENTITY:

BEYOND THE ACRONYMS: UNDERSTANDING NOMENCLATURE AND NUANCE IN THE LGBTQIA, GNC & SOGI LEGAL MOVEMENT [PROFESSIONALISM]...... 9

MUNICIPAL CIVIL RIGHTS LEGISLATION – THE CITY OF DORAVILLE AS A MODEL...... 24

LGBT+ FAMILY BUILDING...... 52

SEXUAL ORIENTATION, GENDER IDENTITY AND MONEY MATTERS...... 54

PRACTICAL LEGAL SUPPORT FOR THE TRANSGENDER COMMUNITY...... 62

NATIONAL TRANSGENDER RIGHTS ADVOCACY...... 74

FAIRNESS, SAFETY AND OPPORTUNITY FOR THE GEORGIA LGBT+ COMMUNITY...... 162

A VIEW FROM THE GEORGIA GENERAL ASSEMBLY: CONVERSION THERAPY, RFRA AND STATE LEVEL ANTI-DISCRIMINATION LEGISLATION...... 371

HOT TOPICS, CITIZENSHIP AND IMMIGRATION...... 391

APPENDIX:

ICLE BOARD...... 455

GEORGIA MANDATORY CLE FACT SHEET...... 456 BEYOND THE ACRONYMS: UNDERSTANDING NOMENCLATURE AND NUANCE IN THE LGBTQIA, GNC & SOGI LEGAL MOVEMENT [PROFESSIONALISM]

<< Back to Table of Contents Beyond the Acronyms: Understanding Nomenclature and Nuance in the LGBTQIA, GNC & SOGI Legal Movement

Materials

Created and Adapted for

Sexual Orientation and Gender Identity CLE

October 2, 2019 ~ Atlanta, Georgia

Beth Littrell, Senior Attorney Southern Poverty Law Center, LGBTQ & Special Litigation

Atlanta, Georgia [email protected]

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Judges must refrain from speech, gestures, or other conduct that could reasonably be perceived as prejudiced or biased or as harassment and must require the same standard of conduct of others subject to their direction or control.

—Commentary to Georgia Code of Judicial Ethics Rule 2.3

It shall be a violation of the Georgia Rules of Professional Conduct for a lawyer to…knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law;

—Georgia State Bar Rules of Professional Conduct Rule 8.4(a)(7).

It is professional misconduct for a lawyer to…engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.

—ABA Model Rules of Professional Conduct 8.4(g)

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TABLE OF CONTENTS

I. Introduction: The Art and Importance of Vocabulary and the Science of Gender…………………………………………….4

A. Gender…………………………………………………………………5

1. Vocabulary…………………………………………………………7

2. The individualized nature of transition…………………………….9

B. Sexual Orientation……………………………………………………10

II. Policies and Best Practices……………………………………………11

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III. Introduction: The Art and Importance of Vocabulary and the Science of Gender

The judicial code of conduct requires judges to refrain from exhibiting bias in their courtroom based on, among other bases, “gender or sex” – which includes gender identity1 – and to ensure that lawyers refrain from doing so. See Ga. Code of Judicial Ethics Rule 2.3 (App. 1). Use of respectful language is a starting point. Even for LGBTQ2 advocates, a reminder of the power of semantics can serve as a reminder to lead on language as a precursor to changing the law and society. The power of a word and its effect on social change is exemplified in the distinction between use of the outdated “sexual preference” versus “sexual orientation.” Until the 2000s, it was common practice for courts to rule – often adversely – to the interests and rights of LGB people with reference to their “sexual preference.” Of course, the word preference reflects “choice” which implies a distinction between classifications that are innate, immutable and otherwise subjected to greater scrutiny.

With exceptions, and a caveat that there are anti-LGBTQ forces marshalling to rollback rights recently gained, which could include use of outdated and unhelpful language in court documents, the phrase “sexual preference” these days more often denotes criminal predilection for predation, see, e.g., Mayhew v. State, 438 P.3d 617, 629 (Wyo. 2019) ( allowing evidence to established “alleged sexual preference for prepubescent children”); State v. Mischler, 2018-1352 (La. App. 1 Cir. 5/31/19) (considering whether evidence “bore probative value regarding the State’s contention defendant had a well-established sexual preference for young teenage boys.”) or as an allegation concerning sexual harassment. See, e.g., Wilson v. City of Rowlett, No. 3:18- CV-2003-S, 2019 WL 1014790, at *1 (N.D. Tex. Mar. 4, 2019) (allegations that employer created hostile work environment by, among other allegations, “describing his sexual preferences”); O'Leary v. Kaupas, No. 08 C 7246, 2012 WL 13492, at *3 (N.D. Ill. Jan. 4, 2012) (evidence of hostile environment included asking “about her favorite sexual positions and sexual preferences”). While courts are not uniformly avoiding the inaccurate phrase “sexual preference” in reference to orientation, more and more courts are doing so. It is unlikely that these courts became enlightened without the intentionality of the language used by advocates.

Because transgender rights – and recognition of the harms inherent in failure to ensure transgender and gender non-conforming people are fully protected under the law – lags well behind our collective, though not universal, understanding of sexual orientation, a deeper understanding of gender and the experience of those who are transgender or gender non-

1 See Glenn v. Brumby, 663 F.3d 1312, 1317 (11th Cir. 2011) (“discrimination against a transgender individual because of her gender-nonconformity is sex discrimination, whether it’s described as being on the basis of sex or gender.”) 2 LGBTQ is an acronym standing for lesbian, gay, bisexual, transgender and queer. According to the Human Rights Campaign, the largest LGBTQ rights organization in the U.S. a Queer is an umbrella that encompasses many people as it intersects with sexual orientation and gender identity. It includes anyone who does not associate with heteronormativity, rather they have non-binary or gender expansive identities. https://www.hrc.org/blog/hrc-officially-adopts-use-of-lgbtq-to-reflect-diversity-of-own- community

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conforming is required for many attorneys. The materials included here seek to support, inspire and inform your advocacy and/or interaction with LGBTQ people in the justice system, with an emphasis on transgender and gender non-confirming people.

A. Gender

In the majority of the population, a high degree of congruence exists between sex and gender, such that an individual fitting all the characteristics of the male sex also identifies with the masculine gender. Transgendered individuals are but one example of a group of people exhibiting incongruence between their natal sex and their gender identity.3

The starting point for an accurate understanding of gender is to recognize the distinction between gender assigned (by other) and gender identified (by self). Doing so is essential to deconstructing the implicit bias that leads to indignity and injustice for transgender individuals.

Until recently, gender4 has been understood as a binary condition (i.e., male and female) solely and finally determined at birth by external genitalia. Our legal and social structures concerning gender are formed around these two unquestioned assumptions. That is, a child is born, identified as male or female based on external genitalia and their gender is recorded – i.e., assigned to them – on a birth certificate. Laws, regulations and social expectations are thereafter based on the gender assigned. However, research and the realities of scores of people from across the world5 show that these assumptions can be inaccurate. In fact, sexual biology is a complicated process that occurs in utero and does not always lead to unambiguous external genitalia or to congruence between the external genitalia and the gender of the individual.6

As described in a law review article exploring transgender athletes in athletic competition, Far From the Finish Line: Transsexualism and Athletic Competition,7 external genitalia is but one determinate of sex, all others occur internally and are rarely assessed. For example, several ways in which gender can be determined include “chromosomal sex,” determined by the presence of X or Y chromosomes and “phenotypic sex” which refers to the presence of anatomical and/or biochemical features such as hormonal dominance. Indeed, there

3 Jill Pilgrima, et. al, Far From the Finish Line: Transsexualism and Athletic Competition, 113 Fordham Intell. Prop. Media & Ent. L.J. 495, 498 (2003) (citing R. Rhoades & R. Pflanzer, Human Physiology 958-59 (3d ed. 1996)). 4 As used herein, the term “gender” is synonymous with the term “sex.” 5 One survey suggests a prevalence of one out of 12,000 to 37,000 people for male-to-female transsexuals and one out of 30,000 to 150,000 for female-to-male. See O. Bodlund & G. Kullgren, General Outcome and Programmatic Factors: A Five-Year Follow-Up Study of Nineteen Transsexuals in the Process of Changing Sex, 25 Archives Sexual Behav. 303, 303-13 (1996); and see Robin Marantz Hening, How Science Is Helping Us Understand Gender, National Georgraphic (Jan.2 2017) http://www.nationalgeographic.com/magazine/2017/01/how-science-helps-us-understand-gender- identity/. 6 See Note 4, at 498 (citing R. Rhoades & R. Pflanzer, Human Physiology 958-59 (3d ed. 1996)). 7 Id.

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are believed to be up to eight determinates of sex.8 One of those biologically-based means of determining sex is “brain sex,” which also is believed to occur in utero based on hormones. As one researcher explained, “brain sex” is an individual’s “innate sexual identity” and expert opinion concludes that “biological sex is multidimensional” and “ultimately determined by the sexual differentiation of the human body part rather than by body parts.” Rachael Wallbank, Re Kevin In Perspective, 9 Deakin L. Rev. 461, at 461-62, 467, 493 (2004). And see Karen Gurney, Sex and the Surgeon’s Knife: The Family Court's Dilemma ... Informed Consent and the Specter of Iatrogenic Harm to Children with Intersex Characteristics, 33 Am. J.L. & Med. 625, 625–26 (2007) (“Recently the importance of the brain’s sex as a biological factor influencing sex determination has gained wider recognition.”) (citations omitted).

Increasingly, research supports what transgender people have long inherently known, which is that brain sex is more powerful than any external qualifier of gender. Indeed, “research appears to support the hypothesis that transgender people should be classified as intersex because ‘there is a brain sex difference between men and women and transsexual people have the brain sex of that gender group to which they maintain they belong.’” 34 Law & Psychol. Rev. 153, 159 (citing Stephen Whittle, Respect and Equality: Transsexual and Transgender Rights 1, 10 (2002). In 2015, researchers at Boston University School of Medicine published a review article that analyzed multiple studies on people with sexual development disorders and concluded that gender identity is a biological condition unaffected by the gender to which one is assigned at birth. 9

Notwithstanding other determinants of gender, brain sex—the sex that is hardwired in the brain—refers to gender identity. As S.J. Langer explains in his article, Our Body Project: From Mourning to Creating the Transgender Body, from a clinical perspective, gender dysphoria—the clinical term for the diagnosis involving a difference between one’s experienced/expressed

8 And see e.g., Brown v. Zavaras, 63 F.3d 967, 971 (10th Cir. 1995) (stating that research concluding gender identity may be biological suggests reevaluating whether transgender people are a protected class for purposes of the Equal Protection Clause); In re Heilig, 816 A.2d 68, 73 (Md. 2003) (listing seven medically recognized factors composing a person’s gender, including “personal sexual identity” (citing Julie A. Greenberg, Defining Male and Female: Intersexuality and the Collision Between Law and Biology, 41 Ariz. L. Rev. 265, 278 (1999)); In re Estate of Gardiner, 22 P.3d 1086 (2001); Maffei v. Kolaeton Indus., Inc., 626 N.Y.S.2d 391 (Sup. Ct. 1995))); In re Lovo-Lara, 23 I&N Dec. 746, 747, 752 (BIA 2005), available at http:// www.justice.gov/eoir/vll/intdec/vol23/3512%20.pdf (explaining that “[a]ccording to medical experts” there are eight criteria which determine an individual's sex, including “sexual identity”); Schroer v. Billington, 424 F. Supp. 2d 203, 211-13 (D.D.C. 2006) (recognizing that scientific observation may confirm that “‘sex is not a cut-and-dried matter of chromosomes”’ but rather consists of “different components of biological sexuality” (quoting Ulane v. E. Airlines, Inc. 581 F. Supp. 821, 825 (N.D. Ill. 1983)); Julie A. Greenberg & Marybeth Herald, You Can't Take it With You: Constitutional Consequences of Interstate Gender Identity Rulings, 80 Wash. L. Rev. 819, 825-26 (2005) (discussing eight factors that contribute to a person’s sex, including gender identity); Norman P. Spack, An Endocrine Perspective on the Care of Transgender Adolescents, 13 J. Gay & Lesbian Mental Health 309, 312-13 (2009) (explaining that surgeons have little to do with the transition process aside from plastic surgery “because the individual has already assigned his or her own gender and sex”). 9 Transgender: Evidence on the biological nature of gender identity, Boston University Medical Center (Feb. 2015)

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gender and assigned gender—is less a “belief” or “desire for the opposite sex genitals and secondary sex characteristics” and more a “sensation” and “self-knowledge” for “what one never had but should have had.”

All of the above is to put forward this one essential take-away position that has the capacity to fundamentally, and naturally, alter your interactions with transgender individuals, if not all individuals, which is this: Your brain determines your sex. Just as you know yourself to be male or female based on your brain sex, not because your birth certificate reflects a M or F, so too does every transgender or gender non-conforming person know their gender identity. It should also inform the way you describe and characterize someone who is transgender, where “biologically” male or female is revealed as inaccurate.

At the root of the widespread discrimination, harassment, and violence-- both systemic and individual--that transgender people face is a lack of understanding or affirmation that transgender people are who they say they are

…

Justice for transgender people is linked to the validation of self-identity--you are who you know yourself to be.10

1. Vocabulary

For transgender people to be recognized as full human beings under the law, the legal system must make room for the existence of transgender people--not as boundary-crossers but as people claiming their birthright as part of a natural variation of human sexual development.11

There are many words to describe gender identities and the spectrum and experience of people who reject the assertion that gender is a binary choice which form the bases for academic exploration and current discourse. For purposes of this presentation, and for ensuring gender non-conforming individuals have access to justice, two definitions are critical for those in the justice system to understand, which are the following terms: 1) “gender identity” and 2) “cisgender.”

As set out above, “gender identity” means “brain sex.” Gender identity is the self- perception of one’s gender as that understanding is hardwired in the brain.12 Gender identity is not a “perception” that one is “born into the wrong body” or a “social construct.” It is a fact. And everyone has one. You may disagree with this assertion on a religious or intellectual level, but if you are committed to ensuring justice, you will endeavor to absorb this concept and apply

10 M. Dru Levasseur, Gender Identity Defines Sex: Updating The Law To Reflect Modern Medical Science Is Key To Transgender Rights, 39 Vt. L. Rev. 943, 945–46 (2015). 11 Id. 12 See, e.g., William Reiner, To be Male or Female--That Is the Question, 151 Archives Pediatric & Adolescent Med. 224, 225 (1997) (“[T]he organ that appears to be critical to psychosexual development and adaptation is not the external genitalia, but the brain.”).

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it when you put on your robe, suit or uniform. Gender is determined by the part of the body between the ears, not between the legs.

For those unfamiliar with transgender issues yet committed to ensuring justice, the other essential word to understand may be the word “cisgender.” From an epistemological standpoint, the word is essentially an antonym of “transgender” where both words share Latin roots, with “trans” meaning “across, beyond, or on the other side of” and “cis” meaning “on this side of.” As prefixes to the word “gender” both terms are strictly descriptive adjectives.13 Although the word has been recognized in print literature for the past two decades, the word is not everyone’s vocabulary, and is rarely if ever mentioned in law school and legal circles. It should be, and it is finally finding its way into legal pleadings, briefings, and opinions.14 The assumption that everyone is cisgender leads to violence, discrimination and injustice against those who are not.

The reason understanding, and using, the term “cisgender” is so important is because everyone has a gender identity. The only question is whether the gender assigned to that person at birth – the letter on their birth certificate – aligns with their gender identity. A cisgender person is someone whose gender identity matches the gender that person was assigned at birth.15 A transgender person is someone whose assumed gender identity/brain sex does not match the gender that person was assigned at birth. It is that simple. By incorporating the term cisgender, or at least conceptualizing that nearly everyone is either cisgender or transgender, you give language and context to a lived privilege most people have never considered or examined. Doing so will lead to an expansive understanding of everyone with whom you interact, including yourself. It may be a new word, a new identity, a new label – but it is one that has applied to our lived experience all along. Identifying yourself as a cisgender male or female (if you are) is useful because it helps to break down the idea that transgender people are abnormal or mentally ill. It replaces the harmful binary Normal/Transgender with the much more neutral Cisgender/Transgender. As implicated above and set out in the appendices, (see App. 2) this suggestion is not meant to imply that these are the only two gender identities that exist. However, if you have never thought about your own gender identity, using the term cisgender is an important step toward helping understand how to respect the diversity of gender identities and expressions.

13 See, e.g., Sunnivie Brydum, The True Meaning of the Word 'Cisgender' It's not complicated: Cisgender is the opposite of transgender, The Advocate (July 31 2015) available at http://www.advocate.com/transgender/2015/07/31/true-meaning-word-cisgender. 14 See, e.g., Norsworthy v. Beard, 87 F.Supp.3d 1104, 1120 (N.D.Cal., 2015) (explaining that the government “articulate no important governmental interest, much less describe how their gender classification—which makes it more difficult for a transgender person to receive vaginoplasty than it is for a cisgender woman—is substantially related to that interest.”); Students v. U.S. Dep’t. of Educ., 2016 WL 6134121, at *2 (N.D.Ill., 2016) (“the District has made clear that any cisgender high school student who does not want to use a restroom or a locker room with a transgender student is not required to do so.”). 15 The Oxford English Dictionary describes the word "cisgender" as an adjective and defines it as "Denoting or relating to a person whose self-identity conforms with the gender that corresponds to their biological sex; not transgender." Katy Steinmetz, This is What ‘ Cisgender’ Means, Time (Dec. 23, 2014), http://time.com/3636430/cisgender-definition/

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Oti, nine, was assigned male at birth but never felt that way. When she learned to speak, she didn’t say, “I feel like a girl,” but rather “I am a girl.16

Beyond these two terms, it is important to know that there are dozens of words describing gender identities that reflect individuals’ understanding and description of their gender – agender, bigender, cisgender, female, F2M17, gender fluid, gender nonconforming, genderqueer, intersex male, M2F,trans, transgender, transsexual, transmasculine, transfeminine, transqueer, transman, transwoman, twospirit – among others. While officers of the court do not need to know the definitions and distinctions of all the terms and ways people self-identify, it is important is to understand that terminology within the transgender community varies and has changed over time and to recognize the need to be sensitive to usage within particular communities. Accepting what academics and advocates point out – that the original way of understanding gender as a binary choice is inaccurate and insufficient to identify a position on a spectrum – should aid in a transformative shift that those obligated to justice should aspire to move from unintentional ignorance and inaccurate presumptions toward awareness and non- dismissiveness with respect to individuals’ inherent right to live authentically in conformity with their gender identity.

The above discussion should inform how you refer to non-cisgender individuals – where necessary to do so – in court and on the record. The most accurate and respectful way to refer to a non-cisgender person is by the term they use to identify themselves. Doing so with the “biologic sex” caveat, i.e., referencing a transwoman as “biologically male,” is unnecessary, disrespectful and inaccurate. Biology includes neuroscience, which includes brain sex. The appropriate reference is that she is a woman and, where necessary, a woman who was assigned the sex of male at birth.

2. Understanding the individualized nature of gender transition

Trans people typically describe gender transition through the same language we use to talk about journeys. There are "steps" and "stages" in the transition process, which correlate with actions taken to "move forward" toward the identified gender category.18

In dispensing justice it is important to dispense with the idea that transgender people have to undergo any particular procedure or take legal steps in order to be recognized in accordance with their gender identity. One critical misconception about transgender people is that sex “reassignment” surgery, more accurately described as “sex confirming surgery,” (SCS) is an essential part of transition, but that is not the case for all transgender people. Transition is individualized and case-dependent. It generally includes hormone therapy and gender immersion (where a person lives as the gender with which they identify), and, in some cases, SCS or other surgeries that alter internal or external sex characteristics. Hormones, surgeries and other medical procedures that alter physiology to reflect gender are frequently inaccessible and entail costs and

16Robin Marantz Henig, How science is helping us understand gender, National Geographic (2017), available at https://www.nationalgeographic.com/magazine/2017/01/how-science-helps-us-understand- gender-identity/ 17 Female to Male 18 Transgender individuals' language evokes journeys, (April 2015) https://news.sfsu.edu/transgender- individuals-language-evokes-journeys

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risks that not all people can undergo. None of the foregoing changes a person’s gender identity or the requirement that court officials make every effort to provide dignity and access justice to every person.

In providing equal justice it is important to understand the phrase “gender transition,” which refers to the time period during which a person begins to live in accordance with their gender identity, rather than the gender they were thought to be at birth. While not all transgender people transition, a great many do at some point in their lives. The extent to which people physically and/or socially transition varies. Gender transition looks different for every person. Some people undergo hormone therapy or other medical procedures to change their physical characteristics and make their body better reflect the gender they know themselves to be. It is often, but not always, in conjunction with medical treatment. Possible steps in a gender transition may or may not include changing clothing, appearance, name, or the pronoun people use to refer to you (i.e., “she,” “he,” or “they”). Some people are able to change their identification documents, like their driver’s license or passport, to reflect their gender. Although changing one’s birth certificate or driver’s license to accurately reflect a gender identity can be critical to a trans person’s safety and well-being, doing so may be neither legally or practically possible for many people.19

Transitioning can help many transgender people lead healthy, fulfilling lives. No specific set of steps is necessary to “complete” a transition—it’s a matter of what is right for each person. All transgender people are entitled to the same dignity and respect, regardless of which legal or medical steps they have taken.

B. Sexual Orientation

Most Americans have a collective understanding of sexual orientation as one’s predisposition to be either bisexual, heterosexual or homosexual.20 To this relatively straightforward definition, a few additional updates to consider. First, a more accurate and comprehensive understanding of attraction underlying these terms would include the qualifier, “romantic”21 and/or “emotional” to the word orientation, or even to replace the qualifier “sexual.” Secondly, an increasing number of people identify as pansexual, meaning they are attracted to genders other than males and females (i.e., e.g., androgynous or gender fluid

19 See FN 10 at 78-79 (“The rules for changing gender-marker designations, however, are complex and vary across jurisdictions and administrative bodies, making it challenging, and sometimes impossible,79 for many transgender people to have updated and consistent IDs.”) (citations omitted) 20 https://www.merriam-webster.com/dictionary/sexual%20orientation 21 https://www.webmd.com/sex-relationships/guide/sexual-orientation#1; and see Adam R. Chang, Stephanie M. Wildman, Gender in/sight: Examining Culture and Constructions of Gender, 18 Geo. J. Gender & L. 43, 79, n. 62 (2017) (“As definitions of terms evolve, sexual orientation is now often coupled with romantic attraction.) citing, as an example, Asexuality, Attraction, and Romantic Orientation, LGBT Center, UNC Chapel Hill, https://lgbtq.unc.edu/asexuality-attraction-and-romantic- orientation (last visited Jan. 28, 2017)).

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people).22 Others identify as asexual, meaning they do not experience sexual attraction.23 Asexual people are not necessarily celibate and may be romantically and/or emotionally attracted to other people. This dichotomy helps explain a model of attraction that reflects split attractions, where one could identify as, for example, someone who is a heteromantic asexual, or a homoromantic heterosexual (romantically attracted to persons of the same sex, sexually attracted to persons of a different sex).

There is also a move to avoid labels and refer to people based on relationships. Hence, a woman in a same-sex relationship may be the most accurate description of a client’s situation and avoids the need to ask – or infer – that client’s orientation. Likewise, some people may prefer to identify as, for example, a man who has sex with men.

Consider, also, avoiding modifying the word marriage when referring to a couple who appear to be the same sex. The marriage certificate they have is not a “gay marriage” certificate and the use of the modifier implies that their union is treated differently – not something universally celebrated and understood.

Finally, bear in mind that self-identification is the first and best practice. And, that the LGBTQ community, vocabulary, and definitions are always evolving, so it is essential to use the terminology the individual prefers.24 Practitioners, even those who identify as LGBTQ, would do well to stay current and continue attending CLEs and other self-education events on the topic.

II. Policies and Best Practices

In 2012, Lambda Legal—a national organization committed to achieving full recognition of the civil rights of LGBT people and those living with HIV through impact litigation, education and public policy work—conducted a national study to explore government misconduct by the police, courts, prisons and school security against LGBT people as well as people living with HIV in the United States. A total of 2,376 people completed the individual survey. Lambda Legal’s survey found a wide range of complaints and reports of disrespect, bias and discrimination from LGBT people and people living with HIV in the areas explored by the survey. This survey, titled and published as Protected and Served?, is one of only a few that has explored the bias and discrimination LGBT people and people living with HIV experience in the court system.

In this survey, almost three-quarters of respondents (73%) reported having face-to-face contact with the police in the past five years. An alarming percentage of them reported negative, hostile and violent interactions. One quarter of respondents with police contact reported at least

22 See Brittany Anas, 10 Things You Need To Know About Pansexuality:It's not the same as being bisexual. AUG 23, 2018 (“‘Pan’ comes for the Greek word ‘all,’” says Holly Richmond, Ph.D., a certified sex therapist and marriage and family counselor. “Pansexual is not bi-sexual, it’s all sexual.”). https://www.womenshealthmag.com/sex-and-love/a19994281/pansexuality/ 23 See The Asexual Visibility and Education Network, About Asexuality, https://www.asexuality.org/?q=overview.html 24 Daliah Silver, Transforming America's Perspective: How Recognizing the Rights of Transgender Youth Will Empower the Next Generation, 39 Child. Legal Rts. J. 233, 237 (2019).

11 | Page one type of misconduct or harassment such as verbal assault, being accused of an offense they did not commit, sexual harassment or physical assault.

Consistent with the data about police interactions, it points to some of the ways the promise of fair and impartial proceedings is tainted by homophobia, transphobia and HIV bias. LGBT people and people living with HIV are particularly vulnerable and are often targeted when incarcerated. This survey highlights the fact that in a climate that is already unsafe, prison guards and other staff often contribute to and exacerbate the danger by committing acts of violence against LGBT and HIV-positive people in their custody and by failing to protect them from dangerous or potentially dangerous situations.

Of the survey respondents, 43% (965 respondents) had been involved in the court system as an attorney, juror, witness or a party to a legal case in the previous five years. Of those 965:

• 19% were attorneys • 21% were witnesses • 44% were jurors • 61% were a party to a case

Respondents in each of those roles within the court system told us that they heard negative comments about the sexual orientation, gender identity, gender expression or HIV status of individuals in court room proceedings. Some of the respondents also had their sexual orientation, gender identity, gender expression or HIV status disclosed improperly.

While respondents from each of those four categories reported mistreatment, as with other forms of government misconduct, there were significantly higher numbers of reports from members of the community who are more often targeted by police, including transgender or gender-nonconforming individuals, as well as those who, in addition to being LGBT or living with HIV, are people of color, low-income or have physical or learning disabilities.

The following recommendations are from Protected and Served? 25

COURTS

Lawmakers, judicial governing bodies, and/or legal associations should adopt the following rules, policies and practices to help protect LGBT people and people living with HIV participating or otherwise involved in judicial proceedings:

• Adopt measures to safeguard the privacy of people who are LGBT or living with HIV.

• Incorporate in judicial canons and attorneys’ rules of professional responsibility prohibitions on language and conduct by any court participants manifesting bias or discrimination based on sexual orientation, gender identity or expression, and HIV status.

25 Available at

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• Institute clear and accessible procedures for complaints about bias by judges, lawyers, court officials and court staff.

• Conduct studies, with community input, of courts’ treatment of individuals based on sexual orientation, gender identity or expression or HIV status.

• Encourage diversity, including in sexual orientation and gender identity or expression, in the appointment and election of judges.

• Support and/or enact laws that explicitly prohibit discrimination in jury selection on the basis of sexual orientation, gender identity or expression, and HIV status.

• Interpret discrimination on the basis of sex to include discrimination on the basis of sexual orientation and gender identity, and adopt policies and procedures that implement this understanding.

In addition, attorneys and judges should:

• Promptly respond to jokes or disrespectful comments about an individual's actual or perceived sexual orientation, gender identity or expression or HIV status.

• Address transgender and gender-nonconforming (TGNC) individuals according to their preferred pronouns (“he” and “him,” or “she” and “her”).

• Oppose the introduction of evidence of actual or perceived sexual orientation, sexual conduct, gender identity or expression or HIV status unless these characteristics are relevant to an issue in the proceeding.

• Conduct voir dire that respects people’s right to confidentiality regarding their sexual orientation, gender identity or expression and HIV status, and that avoids involuntary outing.

• Ensure that jurors are not discriminated against on the basis of sexual orientation, gender identity or expression or HIV status.

Judges should:

• When instructing jurors that biases are to play no role in their decisions, explicitly include bias, prejudice and other preconceived notions about sexual orientation, gender identity or expression and HIV status.

Attorneys should:

• When appropriate, ask questions during voir dire to expose juror biases and prejudices based on sexual orientation, gender identity or expression and HIV status, and seek to remove biased jurors for cause.

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• Challenge peremptory strikes (removals of jurors without explanation) that appear to be based on sexual orientation, gender identity or expression, or HIV status.

Correctional departments, jails and prisons should:

• Ensure that transgender people receive an individualized assessment for housing placement in accordance with the federal Prison Rape Elimination Act (PREA), taking into account the person’s gender identity and safety.

• Adopt and fully implement policies, including PREA, to protect LGBT people from sexual abuse and other violence while incarcerated.

• Prohibit the use of solitary confinement as routine or standard protective placement for people who are LGBT or people living with HIV.

• Eliminate policies and procedures that provide for differential treatment or enhanced disciplinary measures based solely on an inmate’s HIV-positive status.

• Follow PREA standards regarding searches, and train staff in conducting professional and respectful searches, particularly as they affect transgender individuals.

• Ensure that transgender people and people with HIV have access to all medically necessary health care. For transgender people, that may include hormone therapy and surgeries. For people living with HIV, that means uninterrupted access to the medication and the range of care they need.

• Implement transparent and effective complaint review processes.

• Require correctional staff to undergo cultural competency trainings about sexual orientation, gender identity and expression and HIV.

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MUNICIPAL CIVIL RIGHTS LEGISLATION – THE CITY OF DORAVILLE AS A MODEL

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ARTICLE 12. - DISCRIMINATION

Sec. 5-1201. - Definitions.

For purposes of this article, certain terms shall be interpreted or defined as follows unless the context clearly indicates otherwise. (a) Business means any person or entity conducting business within the City, which is required to obtain a license or permit, as well as all departments, boards and agencies of the City of Doraville. For purposes of this article, no department of DeKalb County shall be considered to be a business (notwithstanding licensure by the City). (b) Place of public accommodation means any place, store, or other establishment, that supplies accommodations, good or services to the general public, or that solicits or accepts the patronage or trade to the general public, or that is supported directly or indirectly by government funds. The term does not include any private club, bona fide membership organization, or other establishment that is not in fact open to the public. (c) Rental housing means any real property which is required to obtain a license or permit by the City of Doraville. (d) To rent means to lease, to sublease, to let and otherwise to grant for a consideration the right to occupy premises not owned by the occupant. (e) Employee means any person employed by or seeking employment from any business within the City of Doraville. Employee does not include any individual employed by such individual's parents, spouse or child or in the domestic service of any person. Commented [MA1]: I would strongly recommend not (f) Person means an individual, corporation, partnership, association, labor organization, legal excluding domestic workers, who are often the most representative, mutual company, joint-stock company, trust, unincorporated organization, vulnerable to discrimination. trustee, trustee in bankruptcy, receiver and fiduciary. (g) Familial status means persons 18 years of age or older who are spouses, former spouses, parents or stepparents and children or stepchildren, and persons who are presently residing together or have resided together in the past, and persons who have a child in common regardless of whether they have been married or have lived together at any time. (h) Sexual orientation means an individual's real orientation or orientation perceived by another as heterosexual, homosexual, bisexual or asexual. (i) Gender identity means the actual or perceived gender-related identity, expression, appearance, mannerisms, or other gender related characteristics, regardless of the individual’s designated sex at birth. (j) Military status means a person who is serving or has served in the uniformed services, and who, if was discharged or released under conditions other than dishonorable, as specified in 38 U.S.C. 101(2), or amendments thereto. Uniformed services is defined as set forth in 20 C.F.R. 1002.5(o), or amendments thereto. (k) Hearing officer means a person chosen as described in Sec 2104, who is charged with determining the validity of alleged violations of this article, and upon determining that a violation has occurred, assessing appropriate damages, penalties and/or costs as provided in this article. (l) Mediator means a person professionally trained in mediation, who shall be chosen by the City to perform the duties described in Sec 1203.

Sec. 5-1202. - Unlawful Practices.

(a) It shall be an unlawful discriminatory practice for a business, because of the race, religion, color, sex, disability, national origin, ancestry, sexual orientation, gender identity or military status of any person to refuse to hire or employ such person to bar or discharge such person from employment or to otherwise discriminate against such person in compensation or in terms, conditions or privileges of employment; to limit, segregate, separate, classify or make any distinction in regards to employees; or to follow any employment procedure or practice which, in fact, results in discrimination, segregation or separation. (b) It shall be an unlawful discriminatory practice for a business to discriminate against any person in the terms, conditions or privileges of sale or rental of real property or rental housing, or in the provision of services or facilities in connection therewith, because of race, religion, color, sex, disability, familial status, national origin, ancestry, sexual orientation, gender identity or military status, or to discriminate against any person in such person's use or occupancy of rental housing because of the race, religion, color, sex, disability, familial status, national origin ancestry, sexual orientation, gender identity, or military status of the people with whom such person associates. (c) It shall be an unlawful discriminatory practice for any business, as defined herein being the owner, operator, lessee, manager, agent or employee of any place of public accommodation, to refuse, deny or make a distinction, directly or indirectly, in offering its goods, services, facilities, and accommodations to any person as covered by this article because of race, religion, color, sex, disability, national origin, ancestry, sexual orientation, gender identity, or military status. Notwithstanding the above, nothing in this article shall be construed to prevent any business as defined in this article from offering, affording or providing any additional benefit or additional discount to a person because of such person's military status. (d) Nothing in this article shall be construed to mean that a business shall be forced to hire unqualified or incompetent personnel, or discharge qualified or competent personnel. (e) Nothing in this article shall prohibit an employer from requiring an employee, during the employee's hours at work, to adhere to reasonable and equitable dress or grooming standards not prohibited by other provisions of Federal, State, or local law, provided that all employees are permitted to dress in a manner consistent with their gender identity. Commented [MA2]: We sometimes find that people (f) Nothing in this article shall prohibit a religious organization, association or society to employ an misinterpret provisions allowing reasonable dress standards individual of a particular religion to perform work connected with the performance of religious to mean that they can require trans people to dress activities by the organization, association or society. Nor shall anything in this article prohibit a according to their sex assigned at birth, so this clarification can be helpful. nonprofit private club in fact not open to the public, which as an incident to its primary purpose or purposes provides lodgings which it owns or operates for other than a commercial purpose, from limiting the rental or occupancy of such lodgings to its members or from giving preference to its members. (g) Nothing in this article shall be construed to require any entity subject to this article to make changes requiring a building permit to any existing facility, except as otherwise required by law.

Sec. 5-1203. - Enforcement. Commented [MA3]: You may want to make participation (a) Any person aggrieved by an alleged violation of this article may file a complaint with the City in mediation voluntary on the part of the person who is Clerk on a form to be provided by the City. Any such complaint must be filed within 60 days after filing the complaint as well, since they’d have to foot part of the alleged act of discrimination. A filing fee of $50.00 shall be paid by the Complainant the bill. That way people who do not think they can afford contemporaneously with the filing of all discrimination complaints, however, Complainant shall the cost of mediation are not required to go through it in receive a refund of the filing fee if the Complaint survives the dismissal provisions of 5-2105(c). order to have their rights recognized. Particularly because so many people who face discrimination have to deal with (b) The complaint shall be referred to a mediator for non-binding mediation. Participation in mediation poverty, it’s important to minimize costs for people filing shall be voluntary on the part of the person charged with violating this article. The mediator shall complaints as much as possible to ensure that everyone has be a person selected by the City to serve as the mediator. Any fees charged by the mediator shall equal access to the benefit of nondiscrimination laws no matter what they can afford. be split equally between the parties, unless at the conclusion of the mediation, the mediator assesses these costs of mediation in some other manner. (b) Any mediation hereunder shall be conducted in accordance with procedures to be established by the mediator. (c) If, within 15 days of the conclusion of the mediation, either party notifies the City Clerk in writing that such person is dissatisfied with the results of the mediation, or if the person charged with violating the provisions of this article elects not to participate in mediation, the complaint shall be referred to a Hearing Officer as per Sec 5-2104.

Sec. 5-2104 - Appointment of Hearing Officer, Service of Complaint, Burden of Proof

(a) All complaints not resolved by mediation shall be heard before a Hearing Officer who: (i) shall be a competent attorney at law of good standing in his or her profession, (ii) shall have at least five (5) years' experience in the practice of law, and (iii) shall not maintain an office within a ten (10) mile radius of the City of Doraville, Georgia. The City Clerk shall maintain a listing of no less than five (5) qualified attorneys to serve as a Hearing Officer pursuant to this section. Upon receipt of the letter of dissatisfaction with the results of the mediation, or if the person charged with violating the provisions of this article elects not to participate in mediation, the City Clerk shall draw names randomly from the listing of qualified Hearing Officers and appoint the first one who is available to serve in the matter.

(b) The City Clerk shall cause the complaint to be served on the alleged violator charged as soon as Commented [MA4]: I noticed you had “violator” a few practicable but in no event later than seven (7) calendar days after receipt of a verified complaint. Service times here. You’ll probably want to change that to alleged may be by personal service, by certified mail, return receipt requested or by statutory overnight delivery. violator, person charged with a violation, or something else of that nature so that the language doesn’t imply a foregone (c) In all proceedings under this section, the burden of proof shall be on the complaining party. conclusion about whether the discrimination occurred. Further, the quantum of proof required to establish a violation under this Ordinance shall be beyond a reasonable doubt. Commented [MA5]: This is highly unusual for a civil ordinance. Typically, the “reasonable doubt” standard is reserved for criminal law. Reasonable doubt is an extremely high standard—to prove it, you essentially need to show Sec. 5-2105. – Hearing. that there’s no rational way that someone can look at the evidence and come to a different conclusion. Civil laws (that (a) The violator charged in the Complaint shall have fifteen (15) days to file an answer to the is, laws that do not involve criminal penalties) use lower complaint provided, however, the violator charged shall have no obligation to file an answer to any burdens of proof, such as a “preponderance of the evidence” standard. In the context of a nondiscrimination complaint. law, using a reasonable double standard would make it nearly impossible for anyone to prove that they’ve faced (b) Upon the expiration of the fifteen (15) day answer period, the Hearing Officer shall review the discrimination; you’d need to have irrefutable evidence that complaint and answer, if any, to determine: (i) whether the complaint is in conformity of the requirements someone acted because of hostility towards a protected of Section 1203 above, (ii) whether upon consideration of the complaint and answer, the complaint is group, and short of someone, say, putting in writing “I’m unjustified, frivolous, or patently unfounded, or (iii) whether upon consideration of the complaint and doing this because I hate veterans” or “I’m doing this because of your race,” that’s exceptionally hard evidence to answer, the complaint demonstrates facts sufficient to invoke disciplinary jurisdiction as set forth in this come by. So having a reasonable doubt standard would in Ordinance. practice all but nullify the ordinance and would be well outside of the typical standard for this type of ordinance. (c) If the complaint fails based upon the requirements of the foregoing subsection (b), the Complaint shall be dismissed stating the basis for said dismissal.

(d) Upon a determination that the complaint should not be dismissed pursuant to the foregoing subsection (c), the Hearing Officer shall be empowered to collect evidence and information concerning any complaint and to add the findings and results of its investigations to the file containing such complaint. In furtherance of this investigation, the Hearing Officer may: (i) Seek such further information from the complainant or the violator charged through inquiry or written questions, provided, however the violator charged shall have no obligation to answer any inquiries, or

(ii) Conduct a hearing regarding the allegations set forth in the complaint. At any hearing, the violator who is the subject of inquiry shall have the right: (i) to representation by counsel at all stages of these proceedings, (ii) to written notice of the hearing at least ten (10) calendar days before the first hearing, (iii) to hear and examine the evidence and witnesses, (iv) to not testify, and (v) to submit evidence and call witnesses to oppose or mitigate the allegations. In all hearings held under this section, the procedures and rules of evidence applicable in civil cases shall apply.

(e) All investigations under this section shall be completed within forty-five (45) days of the filing of the complaint. Should the investigation not be completed in said period, the complaint will be deemed Commented [MA6]: This deadline might be a bit too dismissed as a failure to state facts sufficient to invoke the disciplinary jurisdiction of the City of Doraville. ambitious. Keep in mind all of the steps that need to happen before an investigation is complete: parties might have to (f) Within seven (7) days of the completion of the investigation, the Hearing Officer shall either: go through mediation; then they have up to 15 days to challenge the result; then the city has up to 7 days to serve the complaint; the alleged violator has up to 15 days to (i) Dismiss the complaint on the grounds that it is unjustified, frivolous, patently unfounded, respond to a complaint, after which they get at least 10 days or that it fails to state facts sufficient to invoke the disciplinary jurisdiction of the City of notice before the hearing… all of which means that the Doraville, or deadline for completing an investigation could be up before (ii) Finds that a violation of this article has occurred, and the Hearing Officer may award to the investigation even begins! Instead, you may want to tether the deadline to the expiration of the 15 day period the complainant actual damages, or a civil penalty in the amount of $500.00, whichever the alleged violator has to answer—that avoids all of the is greater, for each violation. uncertainty about how long the previous steps are going to take. For example (to use an arbitrary number): “All (g) In addition, the Moderator’s fees and the Hearing Officer's fees shall be assessed to the non- investigations under this section shall be completed within prevailing party unless the Hearing Officer determines that the circumstances warrant assessing the thirty (30) days of receipt of the alleged violator’s response or the expiration of the 15-day answer period.” costs in some other manner.

Sec. 5-2105. - Right To Appeal.

(a) Any party adversely affected by the findings or recommendations of this Ordinancethe Hearing Office may obtain judicial review of such decision as provided in this Section.

(b) An action for judicial review may be commenced by filing an application for a writ of certiorari in the Superior Court of Fulton County within thirty (30) days after the final action on a complaint pursuant to this Ordinance. The filing of such application shall act as supersedeas.

ARTICLE XVIII. - DISCRIMINATION

Sec. 6-1001. – Definitions.

For purposes of this article, certain terms shall be interpreted or defined as follows unless the context clearly indicates otherwise. (a) Business means any person or entity conducting business within the City, which is required to obtain a license or permit. For purposes of this article, no department of any government agency shall be considered to be a business (notwithstanding licensure by the City). (b) Place of public accommodation means any place, store, or other establishment, that supplies accommodations, good or services to the general public, or that solicits or accepts the patronage or trade to the general public, or that is supported directly or indirectly by government funds. The term does not include any private club, bona fide membership organization, or other establishment that is not in fact open to the public. (c) Rental housing means any real property which is required to obtain a license or permit by the City of Doraville. (d) To rent means to lease, to sublease, to let and otherwise to grant for a consideration the right to occupy premises not owned by the occupant. (e) Employee means any person employed by or seeking employment from any business within the City of Doraville. Employee does not include any individual employed by such individual's parents, spouse or child or in the domestic service of any person. (f) Person means an individual, corporation, partnership, association, labor organization, legal representative, mutual company, joint-stock company, trust, unincorporated organization, trustee, trustee in bankruptcy, receiver and fiduciary. (g) Familial status means persons 18 years of age or older who are spouses, former spouses, parents or stepparents and children or stepchildren, and persons who are presently residing together or have resided together in the past, and persons who have a child in common regardless of whether they have been married or have lived together at any time. (h) Sexual orientation means an individual's actual or perceived orientation as heterosexual, homosexual, bisexual or asexual. (i) Gender identity means the actual or perceived gender-related identity, expression, appearance, mannerisms, or other gender related characteristics, regardless of the individuals designated sex at birth. (j) Military status means a person who is serving or has served in the uniformed services, and who, was discharged or released under conditions other than dishonorable, as specified in 38 U.S.C. 101(2), or amendments thereto. Uniformed services is defined as set forth in 20 C.F.R. 1002.5(o), or amendments thereto. (k) Hearing officer means a person chosen as described in Sec 2104, who is charged with determining the validity of alleged violations of this article, and upon determining that a violation has occurred, assessing appropriate damages, penalties and/or costs as provided in this article. (l) Mediator means a state registered mediator, who shall be chosen by the City to perform the duties described in Sec 6-1003. (m) Religious organization means an entity which: Conducts regular worship services; or Is qualified as a religious organization under Section 501(c)(3) of the Internal Revenue Code of 1986, as now or hereafter amended, that is not required to file IRS Form 990, Return of Organization Exempt From Income Tax, under any circumstances.

Sec. 6-1002. – Unlawful Practices.

(a) It shall be an unlawful discriminatory practice for a business, because of the race, religion, color, sex, disability, national origin, ancestry, sexual orientation, gender identity or military status of any person to refuse to hire or employ such person to bar or discharge such person from employment or to otherwise discriminate against such person in compensation or in terms, conditions or privileges of employment; to limit, segregate, separate, classify or make any distinction in regards to employees; or to follow any employment procedure or practice which, in fact, results in discrimination, segregation or separation. (b) It shall be an unlawful discriminatory practice for a business to discriminate against any person in the terms, conditions or privileges of sale or rental of real property or rental housing, or in the provision of services or facilities in connection therewith, because of race, religion, color, sex, disability, familial status, national origin, ancestry, sexual orientation, gender identity or military status, or to discriminate against any person in such person's use or occupancy of rental housing because of the race, religion, color, sex, disability, familial status, national origin ancestry, sexual orientation, gender identity, or military status of the people with whom such person associates. (c) It shall be an unlawful discriminatory practice for any business, as defined herein being the owner, operator, lessee, manager, agent or employee of any place of public accommodation, to refuse, deny or make a distinction, directly or indirectly, in offering its goods, services, facilities, and accommodations to any person as covered by this article because of race, religion, color, sex, disability, national origin, ancestry, sexual orientation, gender identity, or military status. Notwithstanding the above, nothing in this article shall be construed to prevent any business as defined in this article from offering, affording or providing any additional benefit or additional discount to a person because of such person's military status. (d) Nothing in this article shall be construed to mean that a business shall be forced to hire unqualified or incompetent personnel, or discharge qualified or competent personnel. (e) Nothing in this article shall prohibit an employer from requiring an employee, during the employee's hours at work, to adhere to reasonable and equitable dress or grooming standards not prohibited by other provisions of Federal, State, or local law, provided that all employees are permitted to dress in a manner consistent with their gender identity. (f) Nothing in this article shall prohibit a religious organization to employ an individual of a particular religion to perform work connected with the performance of religious activities by the religious organization. Nor shall this article prohibit a religious organization from limiting its non-commercial accommodations, advantages, facilities, membership, and privileges to persons of the same religion. (g) Nothing in this article shall prohibit a nonprofit private club in fact not open to the public, which as an incident to its primary purpose or purposes provides lodgings which it owns or operates for other than a commercial purpose, from limiting the rental or occupancy of such lodgings to its members or from giving preference to its members. (h) Nothing in this article shall be construed to require any entity subject to this article to make changes requiring a building permit to any existing facility, except as otherwise required by law.

Sec. 6-1003. – Enforcement.

(b) The City Clerk shall cause the complaint to be served on the person charged with a violation as soon as practicable but in no event later than seven (7) calendar days after receipt of a verified complaint. Service may be by personal service, by certified mail, return receipt requested or by statutory overnight delivery. (c) The complaint shall first be referred to a mediator for non-binding mediation. Participation in mediation shall be voluntary for both parties. The mediator shall be a person, selected from a list provided by the City, to serve as the mediator. Any fees charged by the mediator shall be split equally between the parties, unless at the conclusion of the mediation, both parties agree to assess these costs of mediation in some other manner. (d) Any mediation hereunder shall be conducted in accordance with procedures to be established by the mediator. (e) If, within 15 days of the conclusion of the mediation, either party notifies the City Clerk in writing that such person is dissatisfied with the results of the mediation, or if either party elects not to participate in mediation, the complaint shall be referred to a Hearing Officer as per Sec 6-1004.

Sec. 6-1004 – Appointment of Hearing Officer, Service of Complaint, Burden of Proof

(a) All complaints not resolved by mediation shall be heard before a Hearing Officer who: (i) shall be a competent attorney at law of good standing in his or her profession, (ii) shall have at least five (5) years' experience in the practice of law, and (iii) shall not maintain an office within a ten (10) mile radius of the City of Doraville, Georgia. The City Clerk shall maintain a listing of no less than five (5) qualified attorneys, who must be licensed to practice law in the state of Georgia, to serve as a Hearing Officer pursuant to this section. Upon receipt of the letter of dissatisfaction with the results of the mediation, or if either party elects not to participate in mediation, the City Clerk shall draw names randomly from the listing of qualified Hearing Officers and appoint the first one who is available to serve in the matter.

(b) In all hearing officer proceedings under this section, the burden of proof shall be on the complaining party. Further, the quantum of proof required to establish a violation under this Ordinance shall be based on a preponderance of the evidence.

Sec. 6-1005. – Hearing.

(a) The person violator charged in the Complaint shall have fifteen (15) days to file an answer to the complaint provided, however, the alleged violator charged shall have no obligation to file an answer to any complaint.

(b) Upon the expiration of the fifteen (15) day answer period, the Hearing Officer shall review the complaint and answer, if any, to determine: (i) whether the complaint is in conformity of the requirements of Sec 6-1003 above, (ii) whether upon consideration of the complaint and answer, the complaint is unjustified, frivolous, or patently unfounded, or (iii) whether upon consideration of the complaint and answer, the complaint demonstrates facts sufficient to invoke disciplinary jurisdiction as set forth in this Ordinance.

(c) If the complaint fails based upon the requirements of the foregoing subsection (b), the Complaint shall be dismissed stating the basis for said dismissal.

(ii) Conduct a hearing regarding the allegations set forth in the complaint. At any hearing, the alleged violator who is the subject of inquiry shall have the right: (i) to representation by counsel at all stages of these proceedings, (ii) to written notice of the hearing at least ten (10) calendar days before the first hearing, (iii) to hear and examine the evidence and witnesses, (iv) to not testify, and (v) to submit evidence and call witnesses to oppose or mitigate the allegations. In all hearings held under this section, the procedures and rules of evidence applicable in civil cases shall apply.

(e) All investigations under this section shall be completed within thirty (30) days of: receipt of the alleged violator’s response or the expiration of the 15-day answer period. Should the investigation not be completed in said period, the complaint will be deemed dismissed as a failure to state facts sufficient to invoke the disciplinary jurisdiction of the City of Doraville.

(f) Within seven (7) days of the completion of the investigation, the Hearing Officer shall either:

(ii) Finds that a violation of this article has occurred, and the Hearing Officer may apply a civil penalty in an amount up to $500.00 for each violation.

(g) In addition, the Mediator’s fees and the Hearing Officer's fees shall be assessed to the non- prevailing party unless the Hearing Officer determines that the circumstances warrant assessing the costs in some other manner.

Sec. 6-1006. – Right To Appeal.

(a) Any party adversely affected by the findings or recommendations of the Hearing Officer may obtain judicial review of such decision as provided in this Section.

(b) An action for judicial review may be commenced by filing an application for a writ of certiorari in the Superior Court of Dekalb County within thirty (30) days after the final action on a complaint pursuant to this Ordinance. The filing of such application shall act as supersedeas.

ARTICLE 12. - DISCRIMINATION

Sec. 5-1201. - Definitions.

For purposes of this article, certain terms shall be interpreted or defined as follows unless the context clearly indicates otherwise. (a) Business means any person or entity conducting business within the City, which is required to obtain a license or permit, as well as all departments, boards and agencies of the City of Doraville. For purposes of this article, no department of DeKalb County shall be considered to be a business (notwithstanding licensure by the City). (b) Place of public accommodation means any place, store, or other establishment, that supplies accommodations, good or services to the general public, or that solicits or accepts the patronage or trade to the general public, or that is supported directly or indirectly by government funds. The term does not include any private club, bona fide membership organization, or other establishment that is not in fact open to the public. (c) Rental housing means any real property which is required to obtain a license or permit by the City of Doraville. (d) To rent means to lease, to sublease, to let and otherwise to grant for a consideration the right to occupy premises not owned by the occupant. (e) Employee means any person employed by or seeking employment from any business within the City of Doraville. Employee does not include any individual employed by such individual's parents, spouse or child or in the domestic service of any person. (f) Person means an individual, corporation, partnership, association, labor organization, legal representative, mutual company, joint-stock company, trust, unincorporated organization, trustee, trustee in bankruptcy, receiver and fiduciary. (g) Familial status means persons 18 years of age or older who are spouses, former spouses, parents or stepparents and children or stepchildren, and persons who are presently residing together or have resided together in the past, and persons who have a child in common regardless of whether they have been married or have lived together at any time. (h) Sexual orientation means an individual's real orientation or orientation perceived by another as heterosexual, homosexual, bisexual or asexual. (i) Gender identity means the actual or perceived gender-related identity, expression, appearance, mannerisms, or other gender related characteristics, regardless of the individuals designated sex at birth. (j) Military status means a person who is serving or has served in the uniformed services, and who, was discharged or released under conditions other than dishonorable, as specified in 38 U.S.C. 101(2), or amendments thereto. Uniformed services is defined as set forth in 20 C.F.R. 1002.5(o), or amendments thereto. (k) Hearing officer means a person chosen as described in Sec 2104, who is charged with determining the validity of alleged violations of this article, and upon determining that a violation has occurred, assessing appropriate damages, penalties and/or costs as provided in this article. (l) Mediator means a person professionally trained in mediation, who shall be chosen by the City to perform the duties described in Sec 1203. (m) Religious organization means an entity which: Conducts regular worship services; or Is qualified as a religious organization under Section 501(c)(3) of the Internal Revenue Code of 1986, as now or hereafter amended, that is not required to file IRS Form 990, Return of Organization Exempt From Income Tax, under any circumstances.

Sec. 5-1202. - Unlawful Practices.

(a) It shall be an unlawful discriminatory practice for a business, because of the race, religion, color, sex, disability, national origin, ancestry, sexual orientation, gender identity or military status of any person to refuse to hire or employ such person to bar or discharge such person from employment or to otherwise discriminate against such person in compensation or in terms, conditions or privileges of employment; to limit, segregate, separate, classify or make any distinction in regards to employees; or to follow any employment procedure or practice which, in fact, results in discrimination, segregation or separation. (b) It shall be an unlawful discriminatory practice for a business to discriminate against any person in the terms, conditions or privileges of sale or rental of real property or rental housing, or in the provision of services or facilities in connection therewith, because of race, religion, color, sex, disability, familial status, national origin, ancestry, sexual orientation, gender identity or military status, or to discriminate against any person in such person's use or occupancy of rental housing because of the race, religion, color, sex, disability, familial status, national origin ancestry, sexual orientation, gender identity, or military status of the people with whom such person associates. (c) It shall be an unlawful discriminatory practice for any business, as defined herein being the owner, operator, lessee, manager, agent or employee of any place of public accommodation, to refuse, deny or make a distinction, directly or indirectly, in offering its goods, services, facilities, and accommodations to any person as covered by this article because of race, religion, color, sex, disability, national origin, ancestry, sexual orientation, gender identity, or military status. Notwithstanding the above, nothing in this article shall be construed to prevent any business as defined in this article from offering, affording or providing any additional benefit or additional discount to a person because of such person's military status. (d) Nothing in this article shall be construed to mean that a business shall be forced to hire unqualified or incompetent personnel, or discharge qualified or competent personnel. (e) Nothing in this article shall prohibit an employer from requiring an employee, during the employee's hours at work, to adhere to reasonable and equitable dress or grooming standards not prohibited by other provisions of Federal, State, or local law, provided that all employees are permitted to dress in a manner consistent with their gender identity. (f) Nothing in this article shall prohibit a religious organization to employ an individual of a particular religion to perform work connected with the performance of religious activities by the organization, association or society. Nor shall anything in this article prohibit a nonprofit private club in fact not open to the public, which as an incident to its primary purpose or purposes provides lodgings which it owns or operates for other than a commercial purpose, from limiting the rental or occupancy of such lodgings to its members or from giving preference to its members. (g) Nothing in this article shall be construed to require any entity subject to this article to make changes requiring a building permit to any existing facility, except as otherwise required by law.

Sec. 5-1203. - Enforcement.

(a) Any person aggrieved by a potential violation of this article may file a complaint with the City Clerk on a form to be provided by the City. Any such complaint must be filed within 60 days after the alleged act of discrimination. A filing fee of $50.00 shall be paid by the Complainant contemporaneously with the filing of all discrimination complaints, however, Complainant shall receive a refund of the filing fee if the Complaint survives the dismissal provisions of 5-2105(c). (b) The complaint shall first be referred to a mediator for non-binding mediation. Participation in mediation shall be voluntary on the part of the person charged with violating this article. The mediator shall be a person selected by the City to serve as the mediator. Any fees charged by the mediator shall be split equally between the parties, unless at the conclusion of the mediation, the mediator assesses these costs of mediation in some other manner. (b) Any mediation hereunder shall be conducted in accordance with procedures to be established by the mediator. (c) If, within 15 days of the conclusion of the mediation, either party notifies the City Clerk in writing that such person is dissatisfied with the results of the mediation, or if the person charged with violating the provisions of this article elects not to participate in mediation, the complaint shall be referred to a Hearing Officer as per Sec 5-2104.

Sec. 5-2104 - Appointment of Hearing Officer, Service of Complaint, Burden of Proof

(c) In all proceedings under this section, the burden of proof shall be on the complaining party. Further, the quantum of proof required to establish a violation under this Ordinance shall be a preponderance of the evidence.

Sec. 5-2105. – Hearing.

(b) Upon the expiration of the fifteen (15) day answer period, the Hearing Officer shall review the complaint and answer, if any, to determine: (i) whether the complaint is in conformity of the requirements of Section 1203 above, (ii) whether upon consideration of the complaint and answer, the complaint is unjustified, frivolous, or patently unfounded, or (iii) whether upon consideration of the complaint and answer, the complaint demonstrates facts sufficient to invoke disciplinary jurisdiction as set forth in this Ordinance.

(c) If the complaint fails based upon the requirements of the foregoing subsection (b), the Complaint shall be dismissed stating the basis for said dismissal.

(i) Seek such further information from the complainant or the alleged violator charged through inquiry or written questions, provided, however the alleged violator shall have no obligation to answer any inquiries, or (ii) Conduct a hearing regarding the allegations set forth in the complaint. At any hearing, the alleged violator who is the subject of inquiry shall have the right: (i) to representation by counsel at all stages of these proceedings, (ii) to written notice of the hearing at least ten (10) calendar days before the first hearing, (iii) to hear and examine the evidence and witnesses, (iv) to not testify, and (v) to submit evidence and call witnesses to oppose or mitigate the allegations. In all hearings held under this section, the procedures and rules of evidence applicable in civil cases shall apply.

(f) Within seven (7) days of the completion of the investigation, the Hearing Officer shall either:

(i) Dismiss the complaint on the grounds that it is unjustified, frivolous, patently unfounded, or that it fails to state facts sufficient to invoke the disciplinary jurisdiction of the City of Doraville, or (ii) Finds that a violation of this article has occurred, and the Hearing Officer may apply a civil penalty in the amount of $500.00 for each violation.

(g) In addition, the Moderator’s fees and the Hearing Officer's fees shall be assessed to the non- prevailing party unless the Hearing Officer determines that the circumstances warrant assessing the costs in some other manner.

Sec. 5-2105. - Right To Appeal.

(a) Any party adversely affected by the findings or recommendations of the Hearing Officer may obtain judicial review of such decision as provided in this Section.

From Roeland Park, Kansas.

ARTICLE 12. - DISCRIMINATION

Sec. 5-1201. - Definitions.

Except to the extent they are in conflict with the definitions below, the definitions contained within the Kansas Acts Against Discrimination, K.S.A. 44-1001 et seq., and amendments thereto, shall be applicable under this article. For purposes of this article, certain terms shall be interpreted or defined as follows unless the context clearly indicates otherwise. (a) Business means any person or entity, with four or more employees, conducting business within the City which is required to obtain a license or permit pursuant to the provisions of Article 1, Article 3, Article 5, Article 6, Article 8, or Article 9 of Chapter 5 of the Code, and all departments, boards and agencies of the City of Roeland Park. For purposes of this article, no religious organization, private fraternal and benevolent association or society, non-profit private club, agency or department of Johnson County, or school district, as defined in K.S.A. 72-8201 et seq., and amendments thereto, shall be considered to be a business (notwithstanding licensure by the City). (b) Place of public accommodation shall include every business within the City, whether wholesale or retail, which is open to the general public and offers, for compensation, any product, service or facility. The term place of public accommodation shall include, but not be limited to, all taverns, hotels, motels, apartment hotels, apartment houses with more than four tenant units, restaurants or any place where food or beverages are sold, retail and wholesale establishments, hospitals, theaters, motion picture houses, museums, bowling alleys, golf courses and all public conveyances, as well as the stations or terminals thereof. This shall not, however, apply to any hotel, motel, restaurant or theater operated by a bona fide private club not conducted for the purpose of evading this article when the accommodations, advantages, facilities and services are restricted to the members of such club and their guests; nor to any bona fide social, fraternal, educational, civic, political or religious organization, when the profits of such accommodations, advantages, facilities and services, above reasonable and necessary expenses, are solely for the benefit or mission of such organization. (c) Rental housing means any real property, consisting of more than four dwelling units, which is required to obtain a license or permit pursuant to the provisions of Article 7 of Chapter 5 of the Code. (d) To rent means to lease, to sublease, to let and otherwise to grant for a consideration the right to occupy premises not owned by the occupant. (e) Employee means any person authorized to perform services for any business within the City of Roeland Park, and includes an officer, employee or elected official of the United States, a state, territory, or any political subdivision thereof or any agency or instrumentality thereof, and an officer of a corporation. Employee does not include any individual employed by such individual's parents, spouse or child or in the domestic service of any person. (f) Person means an individual, corporation, partnership, association, labor organization, legal representative, mutual company, joint-stock company, trust, unincorporated organization, trustee, trustee in bankruptcy, receiver and fiduciary. (g) Familial status means persons 18 years of age or older who are spouses, former spouses, parents or stepparents and children or stepchildren, and persons who are presently residing together or have resided together in the past, and persons who have a child in common regardless of whether they have been married or have lived together at any time. (h) Sexual orientation means an individual's real orientation or orientation perceived by another as heterosexual, homosexual, bisexual or asexual. (i) Gender identity means consistently having and/or expressing a self-image or identity not traditionally associated with their biological sex. (j) Military status means a person who is serving or has served in the uniformed services, and who, if discharged or released under conditions other than dishonorable, as specified in 38 U.S.C. 101(2), or amendments thereto. Uniformed services is defined as set forth in 20 C.F.R. 1002.5(o), or amendments thereto. (k) Investigator means one or more persons appointed by the Mayor, with the approval of the City Council, who shall be charged with investigating alleged violations of this article. (l) Hearing officer means a person appointed by the Mayor, with approval of the City Council, who is charged with determining the validity of alleged violations of this article, and upon determining that a violation has occurred, assessing appropriate damages, penalties and/or costs as provided in this article.

(Ord. No. 894, § 2, 8-4-2014)

Sec. 5-1202. - Unlawful Practices.

(a) It shall be an unlawful discriminatory practice for a business, because of the race, religion, color, sex, disability, national origin, ancestry, sexual orientation, gender identity or military status of any person to refuse to hire or employ such person to bar or discharge such person from employment or to otherwise discriminate against such person in compensation or in terms, conditions or privileges of employment; to limit, segregate, separate, classify or make any distinction in regards to employees; or to follow any employment procedure or practice which, in fact, results in discrimination, segregation or separation without a valid business necessity. (b) It shall be an unlawful discriminatory practice for a business to discriminate against any person in the terms, conditions or privileges of sale or rental of real property or rental housing, or in the provision of services or facilities in connection therewith, because of race, religion, color, sex, disability, familial status, national origin, ancestry, sexual orientation, gender identity or military status, or to discriminate against any person in such person's use or occupancy of rental housing because of the race, religion, color, sex, disability, familial status, national origin ancestry, sexual orientation, gender identity, or military status of the people with whom such person associates. (c) It shall be an unlawful discriminatory practice for any business, as defined herein being the owner, operator, lessee, manager, agent or employee of any place of public accommodation, to refuse, deny or make a distinction, directly or indirectly, in offering its goods, services, facilities, and accommodations to any person as covered by this article because of race, religion, color, sex, disability, national origin, ancestry, sexual orientation, gender identity, or military status. Notwithstanding the above, nothing in this article shall be construed to prevent any business as defined in this article from offering, affording or providing any additional benefit or additional discount to a person because of such person's military status. (d) Nothing in this article shall be construed to mean that a business shall be forced to hire unqualified or incompetent personnel, or discharge qualified or competent personnel. (e) Nothing in this article shall prohibit an employer from requiring an employee, during the employee's hours at work, to adhere to reasonable dress or grooming standards not prohibited by other provisions of Federal, State, or local law. (f) Nothing in this article shall prohibit a religious organization, association or society, or any nonprofit institution or organization operated, supervised or controlled by or in conjunction with a religious organization, association or society, from limiting the sale, rental or occupancy of real property which it owns or operates for other than a commercial purpose to persons of the same religion, or from giving preference to such persons, unless membership in such religion is restricted on account of race, color, national origin or ancestry. Nor shall anything in this article prohibit a nonprofit private club in fact not open to the public, which as an incident to its primary purpose or purposes provides lodgings which it owns or operates for other than a commercial purpose, from limiting the rental or occupancy of such lodgings to its members or from giving preference to its members. (g) Nothing in this article shall be construed to require any entity subject to this article to make changes requiring a building permit to any existing facility, except as otherwise required by law. Any construction after enactment of this article shall ensure individual privacy in all restrooms, public shower spaces and dressing rooms.

(Ord. No. 894, § 3, 8-4-2014; Ord. No. 901, § 1, 11-17-2014)

Sec. 5-1203. - Enforcement.

(a) Any person aggrieved by an alleged violation of this article may file a complaint with the City Clerk on a form to be provided by the City. Any such complaint must be filed within 60 days after the alleged act of discrimination. The complaint shall be referred to a mediator for non-binding mediation. Participation in mediation shall be voluntary on the part of the person charged with violating this article. The mediator shall either be a person agreed upon by the complainant and the person accused of the violation or, if no such agreement can be reached within a reasonable time following the filing of the complaint, a person selected by the City to serve as the mediator. Any fees charged by the mediator shall be split equally between the parties, unless at the conclusion of the mediation, the mediator assesses the costs of mediation in some other manner. (b) Any mediation hereunder shall be conducted in accordance with procedures to be established by the mediator. (c) If, within 15 days of the conclusion of the mediation, either party notifies the City Clerk in writing that such person is dissatisfied with the results of the mediation, or if the person charged with violating the provisions of this article elects not to participate in mediation, the complaint shall be referred to the Investigator for investigation. (d) After initial investigation by the Investigator or such person as may be assigned to investigate the complaint by the Investigator, the Investigator shall make a determination whether there is sufficient evidence of discrimination to conduct a hearing on the complaint. If the Investigator determines that there is not sufficient evidence of discrimination to conduct a hearing on the complaint, the complaint shall be dismissed and the fees of the Investigator for investigation of the complaint shall be assessed against the complainant. Upon a finding of sufficient evidence to warrant a hearing and upon reasonable notice to the complainant and the person charged with violating the provisions of this article, the Investigator shall refer the matter to the Hearing Officer who shall conduct a hearing on the complaint. At such hearing, the parties and the Investigator shall be entitled to call witnesses and to present such other evidence as appropriate. The hearing shall be conducted in accordance with such procedures as may be established by the Hearing Officer, but the rules of evidence used in courts of law need not be strictly enforced. Following the conclusion of the hearing, the Hearing Officer may announce a determination or may take the matter under advisement for determination at a later date. Any determination of the Hearing Officer shall be in writing, shall be based upon the preponderance of the evidence and shall set forth the essential elements of the determination. If the Hearing Officer finds that a violation of this article has occurred, the Hearing Officer may award to the complainant actual damages, or a civil penalty in the amount of $500.00, whichever is greater, for each violation. In addition, the Investigator's fees and the Hearing Officer's fees shall be assessed to the non-prevailing party unless the Hearing Officer determines that the circumstances warrant assessing the costs in some other manner. (e) Any person aggrieved by a determination of the Hearing Officer under this section or any determination of insufficient evidence to warrant a hearing made by the Investigator, may appeal that determination to the District Court of Johnson County, Kansas, in accordance with K.S.A. 60- 2101(d), and amendments thereto. On appeal, the district court may enter such order or judgment as justice shall require, and may award court costs and reasonable attorney fees to the prevailing party. (f) The filing of a complaint for the alleged violation of this article shall in no way preclude any person from seeking other relief under state or federal law.

(Ord. No. 894, § 4, 8-4-2014; Ord. No. 901, § 2, 11-17-2014)

Sec. 5-1204. - Severability.

Should any section, subsection, sentence, clause or phrase of this article, or the application thereof to any person or circumstance, be declared to be unconstitutional or invalid or unenforceable, such determination shall not affect the validity of the remaining portions of this article.

(Ord. No. 894, § 5, 8-4-2014) FOR INFORMATIONAL PURPOSES ONLY

TO: Redacted

FROM: Redacted DATE: July 24, 2018 RE: Doraville, GA Non-Discrimination Ordinance

Summary

Currently, there are twenty-nine states that provide no explicit prohibitions for discrimination based on sexual orientation or gender identity in state law. Without this protection, cities assert their sovereignty through their Home Rule authority. As dictated by state law, the Home Rule power provides local governments the freedom to institute local protections on behalf of their constituents. As such, Home Rule grants cities the power to act without prior state authorization. Notwithstanding the autonomy that the Home Rule power provides, the extent of this freedom is unclear. Due to a lack of judicial interpretation of municipalities’ home rule power, the degree to which ordinances can enforce public accommodation laws is unknown.

Still, in the wake of inaction at the state and federal law, innovative policies constructed by local governments stimulate change by the higher levels of government.

Discussion

Currently, Georgia is one of five states without laws to protect citizens from discrimination in places of public accommodation.1 Public accommodation laws generally prohibit businesses from discriminating on the basis of sex, race, color, religion, ancestry, national origin, disability, or medical condition.2 Some states further prohibit discrimination on

1 Alabama, Georgia, Mississippi, North Carolina and Texas do not have state public accommodation laws. See http://www.ncsl.org/research/civil-and-criminal-justice/state- publicaccommodation-laws.aspx; http://www.lgbtmap.org/equalitymaps/non_discrimination_laws/public-accommodations. 2 See 42 U.S.C. § 12181(7)(1990)(defining private entities considered public accommodations). 1

FOR INFORMATIONAL PURPOSES ONLY

the basis of sexual orientation or gender identity.3 With inaction by the state, municipal governments have sought protections for LGBTQ+ communities through the state’s constitutional and statutory home rule provisions. As such, cities have become instrumental to extending protections to citizens under their Home Rule authority.

The Municipal Home Rule Act of 1965

The Georgia Constitution authorizes the General Assembly to set forth laws allowing municipalities to self-govern “without the necessity of action by the General Assembly.”4

Georgia was “adamant[ly] resistan[t] to the home rule movement,” until the passage of the

Municipal Home Rule Act of 1965 (“the Act”).5 The Act authorizes municipalities to legislate over matters not expressly in the power of the Georgia General Assembly.6 Specifically, municipal governments have the power to “adopt clearly reasonable ordinances, resolutions, or regulation for which no provision has been made by general law and which are not inconsistent with the Constitution or any charter provision…”7 If a city’s charter is inconsistent with a charter provision, the home rule power allows the city to amend its charter.8

Limitations of Home Rule

Despite the broad authority the Act extends to municipalities, Home Rule is not without limits. As dictated by the Act, municipal corporations may not: enact legislation that the General

3 See, e.g., C.R.S. §24-34-601 (2008); see also MAP, Non-Discrimination Laws (last visited July 24, 2018), http://www.lgbtmap.org/img/maps/citations-nondisc-public-accom.pdf. 4 Ga. Const. Art. 9, § 2, ¶ II (1976). 5 See R. Perry Sentell, Jr., The Georgia Home Rule System, 50 Mercer L. Rev. 99 (1998) 6 Id. 7 O.C.G.A. § 36-35-3(a)(1998). 8 O.C.G.A. § 36-35-3(b)(1998). 2

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Assembly has enacted by general law, affect the “composition and form of the municipal government authority,” define any offense that is deemed an offense under the criminal laws of

Georgia, request fines in excess of $1,000.00, adopt any form of taxation beyond what is authorized by law or by Constitution, or take any action affecting the private or civil law governing private or civil relationships.9

The Power of the General Assembly & Intrastate Preemption

The Act provides that the General Assembly, by general law, may “define … broaden, limit, or otherwise regulate…” a municipality’s home rule power.10 Due to the political nature of public accommodations laws and the swell of religious freedom laws across the country, it is possible that the Georgia legislature could attempt to pass a law that limits the local government’s ability to enforce an innovative non-discrimination ordinance. Without case law precedent of the type, it is unclear how probable or successful this strategy would be.

Additionally, cities may not adopt legislation for which the General Assembly has preempted or may preempt.11 While there is no state law preempting cities from enacting a nondiscrimination ordinance, Georgia’s constitution contains a “uniformity clause.”10 Thus, a local ordinance is preempted only when it is in conflict with an existing state law. Because

Georgia is without a law prohibiting discrimination in places of public accommodation, it is clear that no statutory language exists to preempt local governments from passing their own ordinance.

9 See O.C.G.A. § 36-35-6(2015). 10 O.C.G.A. § 36-35-3(a)(1998). 11 O.C.G.A. §36-35-6(a)(2015) 10 Ga. Const. Art. 3, § 6, ¶ IV (1976). 3

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The Private-Law Exception

The Act’s private-law exception is one area where an innovative public accommodations law may be limited. This exception provides that Home Rule “shall not include the power to take any action affecting the private or civil law governing private or civil relationships,” unless the power is “incident to the exercise of an independent governmental power.”11 Albeit ambiguous under Georgia law, “private law” has popularly adopted a complainant-based meaning.12 Under this approach, private law “focuses on who has the power to initiate legal action.”13 Thus, a city’s non-discrimination ordinance could not grant private citizens the power to sue businesses who violate a public accommodations ordinance. Rather, the ordinance could only be enforced by the city.

Even with the private-law exception in place, there is no Georgia case law to interpret this provision of the statute. Without litigation to clarify the availability of municipally created private rights of action, it is possible that Georgia courts would scrutinize the legislature’s intent to the authority that cities have under the Home Rule Act.

The Home Rule Power in Practice

Atlanta and Macon-Bibb County are the only Georgia localities that prohibit discrimination based on sexual orientation and gender identity in private employment, housing,

11 OCGA 36-35-6(b)(2015). 12 See Paul A. Diller, The City and the Private Right of Action, 64 Stan. L. Rev. 1109 (2012). 13 Id. at 1116. 4

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and public accommodations.14 In 2008, the Atlanta City Council adopted an ordinance designed to prohibit discrimination in places of public accommodation.15 The ordinance established a

Human Relations Commission (“the Commission”), tasking the Commission with “receiving, investigating, and making recommendations” regarding complaints alleging violations of the public accommodations ordinance.16 The Commission maintains extensive enforcement powers, including the ability to “recommend revocation of [a liquor] license,” revoke a license or contract to conduct business with the city, issue enforcement orders, and require the payment of fines.17 In addition to filing a complaint with the Commission, an aggrieved individual “may seek prosecution of alleged violations of the Human Relations Code” in Atlanta Municipal Court; but “if the person filing the complaint agrees to a conciliation agreement, the basis of an ordinance violation is limited to the enforcement of the terms of the agreement or settlement.”18

The ordinance also allows an individual to proceed directly to municipal court to seek remedies for relief; however, there is no indication whether this action would be likely to succeed19

Because Georgia law does not provide an explicit right to sue a business for civil rights discrimination, individuals may largely be left to sue under a tort claim. This provides its own unique set of barriers and challenges.

14 MAP, Georgia’s Equality Profile (last visited July 24, 2018), www.lgbtmap.org/equality_maps/profile_state/GA.

15 Atlanta, Georgia Code of Ordinances § 94-68 (2000). 16 See Atlanta, Georgia Code of Ordinances § 94-41 (2000). 17 See Atlanta Georgia Code of Ordinances § 62-37(1977); Atlanta Georgia Code of Ordinances § 94-121(o) 18 See Atlanta Georgia Code of Ordinances § 94-120; See also City of Atlanta, GA Human Relations Commission (last visited July 24, 2018), https://www.atlantaga.gov/government/mayor- s-office/executive-offices/office-of-constituentservices/human-relations-commission. 19 Atlanta Georgia Code of Ordinances § 94-120(2002). 5

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In practice, it is clear that the Commission has the authority to fine violators of the public accommodations ordinance; however, the ordinance leaves the cost of the fine to the discretion of the Mayor and City Council. While fines incentivize the city to conduct a thorough investigation, it does not promote individuals who have experienced discrimination to come forward with their complaint.

Things to Consider

In the absence of state law, municipalities should pass ordinances that protect local citizens. In constructing a non-discrimination ordinance, localities must consider ways to promote compliance by local businesses. Even without financial remedies to incentivize citizens to come forth with their complaints, local governments still maintain considerable authority to remedy discrimination. Fines and the threat of losing a business license could promote substantial compliance with public accommodations laws, especially if the municipality educates the community about their role in the process. Nevertheless, municipal governments must also be ready to face the threat of litigation by business owners who believe that the city is violating their rights. In this case, it is likely that the Home Rule power may gain some traction amongst the General Assembly and Georgia Courts.

Doraville’s Non-Discrimination Ordinance

Doraville is a dynamic, incredibly diverse spot in metro Atlanta. People from all types of backgrounds and nationalities live here. “Diversity” is such an important part of our city’s identity that it is even part of the city’s Motto (“Diversity, Vitality, Community”).

We take our city’s identity as a diverse community seriously, as does our mayor, fellow council members and city staff. We also strongly feel that it’s important to push the needle from tolerance to inclusion. Because of this, we supported the city’s participation in both Welcoming America and the One Region Initiative – committing the city to taking actions that reach out to immigrant and refugee populations within our community. Our next step in this process is the introduction of a Non-Discrimination Ordinance at the November 5th council work session and meeting.

This ordinance will provide a level of protection for employees and consumers of Doraville businesses against discrimination based on race, religion, color, sex, disability, national origin, ancestry, sexual orientation, gender identity, or military status. Doraville would be just the second city in Georgia (after Atlanta) to adopt such an ordinance. It is a little known fact that Georgia does not have any protections for discrimination based on the statuses mentioned above – if someone is a member of a protected class and wants to file a complaint, they are required to file a federal lawsuit, which is a challenge for many people who might have been wronged. Most LGBTQ people are not covered as a Federal protected class and have no recourse to discrimination.

The goal for Doraville’s Non-Discrimination Ordinance is to provide realistic, reasonable protections locally, and to discourage anyone operating a business or offering public accommodations here in Doraville from discriminating. Our research shows that Non- Discrimination ordinances are tied to economic development for the cities that adopt them. Corporations that are looking for a new location are frequently drawn to municipalities that have protections in place for their employees. Plus, it’s just the right thing to do.

In talking with nearby cities, we think this is an opportunity for Doraville to lead the way on diversity and inclusion in our region. Council Member Koontz has crafted a non-discrimination ordinance that will be a model for other small cities that do not have the same level of resources as City of Atlanta. It was created with input from lawyers from all over the country, and has been vetted by lawyers and judges in the state of Georgia as being legal and defensible. We have talked with other elected officials in neighboring cities and believe that several of them will follow our lead and pass similar ordinances soon after we pass ours.

While being one of the first to do something is a leap, we also know that the rewards can be great, if you have the courage to step up. We are both excited about the story this ordinance will tell people in Metro Atlanta and beyond about Doraville’s commitment to diversity and inclusion. We will be sending a strong message that Doraville is ready for change, and that we welcome all to join us as we grow.

Sincerely,

Stephe Koontz, Doraville City Council District 3 Joseph Geierman, Doraville City Council District 2 LGBT+ FAMILY BUILDING

<< Back to Table of Contents Materials will be provided at the program. SEXUAL ORIENTATION, GENDER IDENTITY AND MONEY MATTERS

<< Back to Table of Contents SEXUAL ORIENTATION, GENDER IDENTITY AND MONEY MATTERS

Dana P. Shaffner Shaffner Law Office PC Atlanta, Georgia

Disclaimer: This outline is intended for use by the generalist or non-tax bar. These materials should assist you in being knowledgeable about the present state of taxation, mostly income taxation, estate planning and how it impacts your clients. Nothing herein can take the place of a careful assessment of an individual’s specific facts by a tax professional before implementing any tax planning or taking any filing position. SEXUAL ORIENTATION, GENDER IDENTITY AND MONEY MATTERS by

Dana P. Shaffner Shaffner Law Office PC Atlanta, Georgia

TABLE OF CONTENTS

INTRODUCTION ...... 1

I. Challenge: Finding a Job and Keeping It ...... 1 a. Seek Employment with Companies Having a High HRC Score...... 2 b. Due Diligence in Researching Employers...... 2 c. Seek work with an LGBT Owned Company...... 2

II. Challenge: My Money is as Good as Anyone’s: The LGBT Community as Consumers...... 2

III. Challenge: Keeping What you have Earned...... 3 a. Failure to Save for Those Rainy Days...... 3 b. Failure to Save for Retirement ...... 3 c. The Lord Giveth and the Government Taxes It ...... 3 1. Credit for Qualified Adoption Expenses...... 3 2. Medical Deduction for Gender Confirmation Surgery ...... 4

IV. Challenge: Leaving a Legacy/Passing on What you have...... 5

a. Single Persons ...... 5 b. Couples that Do Not Marry...... 5 c. Coulples that Do Marry ...... 5 d. Contentious Families ...... 5 SEXUAL ORIENTATION, GENDER IDENTITY AND MONEY MATTERS Presented by Dana P. Shaffner

Despite persisting stereotypes, the LGBT community experiences poverty at a rate higher than the so-called “straight” community. This topic is briefly explored in the article “Beyond Stereotypes: Poverty in the LGBT Community”, by Brad Sears and Lee Badgett in Tide/Momentum, Issue 4, June 2012, The Williams Institute, UCLA School of Law. The authors put is succinctly: “To envision the LGBT poor, you only have to think about the young gay man who is kicked out of his home and ends up at the Greyhound Bus Station in Hollywood; the transgender woman being turned down in job interview after job interview for entry level jobs; or an elderly lesbian whose partner’s death means less social security income and possibly the loss of her home.” The road to equality means that people that are LGBT must navigate a rocky road that slopes steeper than their mainstream counterparts. As many other minorities have discovered, they have to be better, smarter, and more agile just to achieve the same basic level of security that the mainstream community has. This presentation explores some of the challenges facing the LGBT community in financial matters and presents some strategies for enhancing and protecting their financial security.

I. Challenge: Finding a Job and Keeping it. The amount of economic metrics available to analyze the employment situation with the LGBT community is disappointing compared to other minority groups. While race is routinely tracked, sexual orientation and gender identity isn’t. The US Census has consistently failed to include any question from which one may deduce the sexual orientation or gender identity of the respondent. (The 2000 and 2010 Census did include questions to determine same sex coupled households, but all such questions have been removed from the 2020 Census draft. ) What metrics do exists, however, indicates a higher level of unemployment across the board for those who identify as LGB, and when it comes to transgender or non-binary gender individuals, the unemployment statistics explode. Adding an additional minority status, such as LGBT people of color also tends to increase the rate at which those people are chronically unable to find stable employment. The Human Rights Campaign, through their HRC Foundation, publishes a Corporate Equality Index each year. The latest information shows the highest number of businesses achieving a perfect score in the 17 year history of the report. 571 Major companies have policies that are affirming and inclusive for applicants that identify as LGBT. In terms of Atlanta, the largest employers in the metro area have all obtained perfect scores. The 10 largest employers in Atlanta as of 2016 according to the Metro Atlanta Chamber of Commerce were: Delta Airlines, Emory, Wal-Mart, Home Depot, AT&T, The Kroger Co, Wellstar Health Systems, Publix Super Markets, Inc., Northside Hospital, and Coca Cola. Of these, Delta, Wal-Mart, Home Depot, AT&T, Kroger, and Coca Cola earned perfect scores.

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Publix did not respond to request from HRC. (Health Care providers are covered by a different index, the Healthcare Equality Index, and surprisingly the largest providers in Atlanta, Emory, Northside, and Grady all had less than perfect scores resulting mostly from the lack of policies supporting LGBT employees. See Healthcare Equality Index 2019) Legal protections are scant for LGBT job applicants and employees. Georgia is an “employment at will” state and has no state wide anti-discrimination statute. Some local jurisdictions, such as City of Decatur, City of Atlanta, City of Doraville prohibit discrimination due to sexual orientation and gender identity. Federal employment protections have not consistently been applied to employment discrimination for sexual orientation in cases binding on this district. Glenn v. Brumby et.al., 724 F. Supp. 2d 1284 (ND Ga 2010), aff’d, 663 F.3rd 1312 (11th Cir. 2011) did find that Equal Protection against sex-based discrimination did apply to a transgender employee. Solutions: a. Seek Employment with Companies Having a High HRC Score. b. Due Diligence in researching employers. A variant of “know thy enemy” would be to exhaustively research the company for whom you wish to work. c. Seek Work with an LGBT owned Company d. Self-employment.

II. Challenge: My money is as good as anyone’s: The LGBT Community as Consumers. In 2012 The Wisconsin Gazette put the value of the LGBT market in the United States at $ 790 billion. This is consistent with the findings of Witeck-Combs Communications, Inc and Marketresearch.com which valued it at $ 660 Billion in 2006. Those are markets of a size that should attract attention. American Airlines saw this back in the 1990s and formed a marketing team to target LGBT consumers directly and estimated that they saw revenue growth from this segment from $ 20 Million to $ 193.5 million in the years 1994 to 1999. National businesses selling generic goods and services are probably those least likely to care about the status of their consumers, while local businesses often deal with their customers at much closer range. We have seen in the news bakeries and catering businesses deny services to same sex couples seeking wedding cakes and catered receptions. There have also been cases involving accommodations at Bed and Breakfast establishments and wedding venues. These are local businesses where the owners often interact much closer with their consumer than a national business. The US Census reported that in 2010, Atlanta had the third largest percentage of adults identifying themselves as lesbian, gay or bisexual, 12.8 %. Atlanta routinely lands in the top ten list of gay friendly cities in the country, and was named by Advocate Magazine as the gayest city in America in 2010.

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1. Can a Business decline LGBT Customers ? The legal right of a consumer to access the goods and services offered by a business is covered by the Civil Rights Act of 1964 with legal protections under “public accommodations”. Consumers of certain identities are protected by Federal law from discrimination in having access to goods and services offered to the public. Sexual orientation and gender identity (the “T” in LGBT) are not included in the protected classes. Therefore a business that declines to provide goods and services to consumers on the basis of the consumer’s perceived sexual orientation or gender identity is not subject to Federal sanction in the same way a denial of service due to race, religion or sex is. (a). State and Local Governments. Federal Law is not the only source of statutory protections against discrimination in access to goods and services. Some states have statewide versions of the Civil Rights Act of 1964. Georgia does not have such a state law. Some cities enact their own ordinances applicable to businesses located within their city limits. The City of Atlanta does have such an ordinance (see Atlanta Code of Ordinances Section 94-68 and Section 10-224(a)).

III. Challenge: Keeping What you have earned. My observation from over 30 years of the practice of tax law is that there are an infinite number of ways a person can inflict economic self harm and in this people that are LGBT are no more creative than their straight counterparts. In no particular order: a. Failure to Save for those Rainy Days. This should be axiomatic that anyone working should build up savings to cover those time periods when they may be between jobs or have to face unplanned financial costs. b. Failure to Save for Retirement. This is also axiomatic that anyone working knows that someday they may wish to retire. The most common device available to employees is the 401(k) plan. Those who are self-employed have many more options available to them. c. The Lord Giveth and the Government Taxes it. Income taxes as applied to LGBT taxpayers is no different from the tax burdens faced by the straight world. There are the normal tax questions to be resolved: - If Married, do we file joint ? - What if my spouse owes taxes ? - Is there a marriage penalty ? There are in particular two points that are likely to impact LGBT taxpayers more than others: 1. Credit for Qualified Adoption Expenses. For tax years beginning after 2011, a taxpayer may claim a non-refundable credit for

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qualified adoption expenses incurred for each eligible child. (Internal Revenue Code Section 23). Qualified adoption expenses include reasonable and necessary adoption fees, court costs, attorneys fees, and other expenses directly related to the legal adoption of a eligible child. An eligible child is an individual who has not yet attained the age of 18, or who is physically or mentally unable to care for themself. Here is the BUT: a child of the taxpayer’s spouse, however, is NOT an eligible child. This exclusion under Section 23(d)(1)(c) is a critical point in the context of LGBT couples. Prior to Windsor, the lack of recognition of same sex marriage at the Federal level meant that no adoptions by same sex couples ever involved “the child of a spouse”. The prohibition on claiming the credit for adoption expenses of a spouse’s child will disproportionately impact lesbian couples where one spouse gives birth naturally via artificial insemination or in vitro fertilization. The birth mother is, as a matter of law, the parent of the child she has born, and when her wife seeks to legalize her relationship with the child, the child is, ipso facto, the child of a spouse if the couple is married. 2. Medical Deduction for Gender Confirmation Surgery. Taxpayers who are transgender often incur substantial medical expenses as part of their transition. For many years the Internal Revenue Service, like many health insurers, viewed the medical expenses incurred by such people as “elective” and denied a deduction for the associated medical expenses. This denial included expenses for hormones, “top surgery”, electrolysis, and gender confirmation surgery. Rhiannon G. O’Donnabhain claimed such expenses on her 2001 income tax return. She included the costs of hormones, breast augmentation surgery, and gender confirmation surgery. The Service denied the deduction. The matter was taken up by the Tax Court in 2010 who ruled that her hormones and gender confirmation surgery were medical expenses associated with a disease or to improve her health, and hence “non-elective” and allowed the deduction. The taxpayer did not present evidence to show the necessity of her breast augmentation surgery and accordingly the Tax Court disallowed those e expenses. O’Donnabhain v. Commissioner, 134 TC No 4 (2010). Dicta in the opinion does seem to suggest that a transgender taxpayer might be able to obtain a deduction for breast augmentation surgery provided they first obtain a finding by their healthcare practitioner of the medical or psychological necessity for such surgery for a successful transition.

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IV. Challenge: Leaving a Legacy/Passing on What you have. It is interesting that both the Windsor and Obergefell cases, the ones that saw the Supreme Court mandate marriage equality both grew out of the lack of recognition of marriage for a couple where one of them died. Indeed, the most starkest differences between same sex couples and opposite sex couples in the years before marriage equality was the treatment of the widow upon the death of their spouse. It is quite simple: in matters of the property of the deceased, the laws favors spouses over others, and then blood kin over strangers. From this we can derive the following solutions to the challenge of leaving a legacy: a. Single Persons need to plan their affairs such that the people they want to be involved will be involved. A partner to whom they are not married is a legal stranger and has no inherent rights. All the decisions regarding health care of the terminally ill, the funeral for the deceased, and the disposition of the property will be relegated to the blood kin if there is no spouse and the person did not put into effect the necessary legal documents such as powers of attorney, health care directives b. Couples that do not marry MUST adopt the set of documents referenced above otherwise they run the risk of being locked out of their partner’s affairs at the onset of a terminal illness through the disposition of the estate of the deceased. This would also include domestic partnership agreements and joint ownership agreements for any real estate they may purchase together. c. Couples that do marry will enjoy the deference the law grants to surviving spouses which include preference for the spouse to serve as a guardian, conservator, trustee and/or executor. In addition the surviving spouse has the right to a preferential set aside of the decedent’s property, even preferential to creditors, called in Georgia a Year of Support. d. Some families never accept the LGBT status of their family member, and that translates into a complete and total rejection of the same sex partner/spouse. In those situations a will challenge becomes an almost certainty. Where there are contentious family relationships, will substitutes such as joint tenancy with right of survivorship, POD designations or the use of trusts reduce the risk of the deceased’s intentions being frustrated by family members.

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PRACTICAL LEGAL SUPPORT FOR THE TRANSGENDER COMMUNITY

<< Back to Table of Contents IN THE SUPERIOR COURT OF ______COUNTY STATE OF GEORGIA

In re the Name Change of:

[Name: Some controversy over whether one CIVIL ACTION NO. can use chosen name or dead name, and there are relative merits to each.] ______

PETITION TO CHANGE THE NAME OF AN ADULT

Petitioner [Dead Name] (“Petitioner”) files this petition to change the name of an adult pursuant to O.C.G.A. § 19-12-1(a), and states the following in support of the petition:

Petitioner’s legal name is [Dead Name], and Petitioner resides in ______County,

Georgia. Petitioner’s address is ______, [City, Georgia, ZIP]. Therefore, jurisdiction and venue are proper in this Court.

Petitioner was born [date].

Petitioner seeks a name change from [Dead name] to [name].

Petitioner seeks this name change because the proposed name is the name by which

Petitioner is known to friends and family, and it is the name most consistent with Petitioner’s personal and professional presentation. [OPTIONAL: Petitioner wishes [PRONOUN: his/her] name to reflect [PRONOUN: his/her] gender identity.]

Petitioner does not intend to use the name change fraudulently to deprive anyone of any right under the law, has no reason to anticipate the change would have that effect, and has no reason to anticipate objections to this name change from any third party.

Where there is neither an objection nor any evidence of improper motive against any specific person, a trial court abuses its discretion in denying a petition for a name change. In re

Feldhaus, 340 Ga. App. 83, 84–85 (2017).

WHEREFORE, the Petitioner respectfully requests that:

(a) Petitioner’s name be changed as set forth in Paragraph 3 of this petition; and

(b) The Court enter any such other relief the Court considers just and proper under

the circumstances.

Respectfully submitted this [DATE].

/s/Attorney [Attorney Name] Georgia Bar No. ______

Counsel for Petitioner

[FIRM] [Address 1] [Address 2] [Address 3] [City, State ZIP] [e-mail] [Telephone] [Facsimile]

PRINTED ON PHYSICIAN’S LETTERHEAD

Letter Certifying Applicant’s Gender Change

I, ______, (Physician’s Full Name)

______, ______, (Physician’s medical license/certificate number) (Issuing State/Country of license/certificate) am the physician of ______, (Name of Patient) ______. (Date of Birth of Patient)

[with whom I have a doctor/patient relationship and whom I have treated], or [with whom I have a doctor/patient relationship and whose medical history I have reviewed and evaluated].

______, (Name of Patient) has had surgical procedure related to transition from [MALE TO FEMALE/FEMALE TO MALE].

I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct.

______Signature of Physician ______Physician’s Address ______Typed Name of Physician ______Date ______Physician’s Phone Number

PRINTED ON PHYSICIAN’S LETTERHEAD IN THE SUPERIOR COURT OF ______COUNTY STATE OF GEORGIA

In re the Name Change of:

[Name: Some controversy over whether one CIVIL ACTION NO. can use chosen name or dead name, and there are relative merits to each.] ______

NOTICE OF PETITION TO CHANGE THE NAME OF AN ADULT

Through the undersigned counsel, Petitioner [Dead Name] filed a petition in the Superior

Court of ______County on [DATE] to change Petitioner’s name as follows:

From: [Dead Name] To: [Name]

Any interested party has the right to appear in this case and file objections within thirty

(30) days after the Petition was filed.

Respectfully submitted this [DATE].

/s/Attorney [Attorney Name] Georgia Bar No. ______

Counsel for Petitioner

[FIRM] [Address 1] [Address 2] [Address 3] [City, State ZIP] [e-mail] [Telephone] [Facsimile]

IN THE SUPERIOR COURT OF ______COUNTY STATE OF GEORGIA

In re:

[Name: Some controversy over whether one CIVIL ACTION NO. can use chosen name or dead name, and there are relative merits to each.] ______

PETITION TO CHANGE BIRTH CERTIFICATE

Comes now [Name], formerly known as [Dead name], and petitions this Honorable Court to grant a change in Petitioner’s birth certificate. In support, Petitioner shows as follows:

Petitioner resides in _____ County, Georgia, at [Address]. Therefore, jurisdiction and venue are proper in this Court. [NOTE: Can probably also establish jurisdiction and venue in

Fulton County for any Petitioner, as that is where the Georgia Department of Health, State Office of Vital Records resides.]

Petitioner was born [DATE], in [CITY], in the State of Georgia, United States of

America. Petitioner is over 18 years of age.

Petitioner seeks a name change on Petitioner’s birth certificate from [Dead name] to

[Name].

Petitioner obtained an order granting a legal name change from [COURT]. A certified copy of that Order is attached as Exhibit A.

1596100.1 1

[FEMALE/MALE] sex is consistent with Petitioner’s personal and professional presentation.

Consistent with Department of Driver Services Regulations, Petitioner has changed the marker on [PRONOUN: his/hers] state-issued identification. A copy of Petitioner’s driver’s license is attached as Exhibit B.

Petitioner has undergone a surgical procedure related to transition. A notarized letter from Petitioner’s physician attesting to this change is attached as Exhibit C.

O.C.G.A. § 31-10-23(e) permits an individual born in this State who has obtained a legal name change and whose sex has been changed by a surgical procedure and to have the individual’s birth certificate amended to reflect the individual’s new name and sex.

This petition is not intended to defraud another of any rights or of avoiding any legal or other obligations, nor is it expected to do so.

WHEREFORE, the Petitioner respectfully requests that this Court issue an order:

(a) Finding that, pursuant to the requirements of O.C.G.A. § 31-10-23(e), Petitioner’s sex

has been changed by surgical procedure and name has been changed by court order;

(b) Directing the Georgia Department of Vital Records to issue a new birth certificate

reflecting the foregoing changes.

A proposed order granting such relief is attached as Exhibit D.

1596100.1 2

Respectfully submitted this [DATE].

/s/Attorney [Attorney Name] Georgia Bar No. ______

Counsel for Petitioner

[FIRM] [Address 1] [Address 2] [Address 3] [City, State ZIP] [e-mail] [Telephone] [Facsimile]

1596100.1 3

IN THE SUPERIOR COURT OF ______COUNTY STATE OF GEORGIA

In re the Name Change of:

[Name: Some controversy over whether one CIVIL ACTION NO. can use chosen name or dead name, and there are relative merits to each.] ______

VERIFICATION

I, [Name], personally appeared before the undersigned notary public and, being duly sworn, state the facts stated in the foregoing Petition are true and correct.

Dated this ______date of ______, 2019.

______(Sign your name here before Notary) Petitioner

[Petitioner’s Dead Name]

[Petitioner’s Address]

Petitioner’s Telephone Number: [______]

Sworn to and affirmed before me, this ______day of ______, 2019.

______NOTARY PUBLIC My commission expires: ______(Notary Seal)

IN THE SUPERIOR COURT OF ______COUNTY STATE OF GEORGIA

In re the Name Change of:

[Name: Some controversy over whether one CIVIL ACTION NO. can use chosen name or dead name, and there are relative merits to each.] ______

ORDER

Petitioner [Name], formerly known as [Dead name], comes before the Court seeking to amend Petitioner’s birth certificate pursuant to O.C.G.A. § 31-10-23(e).

After reviewing Petitioner’s pleadings and exhibits, the Court FINDS that pursuant to the requirements of O.C.G.A. § 31-10-23(e), Petitioner’s sex has been changed by surgical procedure and Petitioner’s name has been changed by court order.

There being no objection from the Office of Vital Records of the Georgia Department of

Health and no evidence that Petitioner seeks this change to pursue any fraudulent purpose or avoid any legal obligation, the Court ORDERS the Petition GRANTED.

Pursuant to O.C.G.A. § 31-10-23(e) and Ga. Comp. R. & Regs. 511-1-3-.31(d), the

Office of Vital Records of the Georgia Department of Health is ORDERED to issue a new birth certificate, changing Petitioner’s name from [Dead name] to [Name] and Petitioner’s sex from

[FEMALE TO MALE/MALE TO FEMALE].

This Order entered on the ______day of ______, 2019.

______Honorable ______Judge, Superior Court of _____ County

Order proposed by Counsel for Petitioner: [FIRM] [Lawyer] [Address 1] Ga. Bar No. ______[Address 2] [e-mail address] [Telephone] IN THE SUPERIOR COURT OF ______COUNTY STATE OF GEORGIA

In re the Name Change of:

[Name: Some controversy over whether one CIVIL ACTION NO. can use chosen name or dead name, and there are relative merits to each.] ______

ORDER

This matter has come before the Court on the Petitioner’s verified Petition to Change the

Name of an Adult, filed with the Clerk of this Court on [DATE]. The required notice has been published and sufficient grounds exist for the requested relief.

THEREFORE, IT IS HEREBY ORDERED that the Petitioner’s name shall be changed from [DEAD NAME] to [NAME].

This Order entered on the _____ day of ______, 2017.

______Honorable ______Judge, Superior Court of ______County

Order proposed by:

[Lawyer] Ga. Bar _____ [e-mail address] [FIRM] [Address 1] [Address 2] [Address 3] [City, State ZIP]

Counsel for Petitioner IN THE SUPERIOR COURT OF ______COUNTY STATE OF GEORGIA

In re the Name Change of:

[Name: Some controversy over whether one CIVIL ACTION NO. can use chosen name or dead name, and there are relative merits to each.] ______

VERIFICATION OF PETITION TO CHANGE THE NAME OF AN ADULT

I, [Dead Name], personally appeared before the undersigned Notary Public, and declare under oath that I am the Petitioner in the above-styled action and that the facts stated in the foregoing Petition to Change the Name of an Adult are true and correct.

Signed this ____ day of ______2019.

______(Sign your name here before Notary) Petitioner

[Petitioner’s Dead Name]

[Petitioner’s Address]

Petitioner’s Telephone Number: [______]

Sworn to and affirmed before me, this ______day of ______, 2019.

______NOTARY PUBLIC My commission expires: ______(Notary Seal)

NATIONAL TRANSGENDER RIGHTS ADVOCACY

<< Back to Table of Contents GENDER IDENTITY DEFINES SEX: UPDATING THE LAW TO REFLECT MODERN MEDICAL SCIENCE IS KEY TO TRANSGENDER RIGHTS

M. Dru Levasseur, Esq.*†

INTRODUCTION ...... 944 I. UNDERSTANDING “TRANSGENDER” ...... 948 A. An Overview of Transgender People’s Lived Experience ...... 948 B. Gender Transition ...... 951 C. Recognition of Identity Through Legal-Name and Gender-Marker Changes ...... 959 II. LEGAL HORRORS: TRANSGENDER PEOPLE AS NON-HUMAN IN THE EYES OF THE LAW ...... 963 A. Courts Have Used Dehumanizing and Inconsistent Methods of Determining Sex That Are Contrary to Medical Authority ...... 967 1. Marriage/Custody Context ...... 967 2. Discrimination Context ...... 972 B. Limits to Sex-Stereotyping and Conversion Theories: The “Biological Sex” Misnomer ...... 977 III. GENDER IDENTITY IS “BIOLOGICAL” AND THE PRIMARY DETERMINANT OF SEX ...... 980 A. The Third Theory of Schroer ...... 980 B. Etiology of Sex ...... 982 C. Transgender as Intersex: Success of In re Kevin ...... 985 D. Forgiveness, Choice, and Biological Justification ...... 988 IV. LEGAL GAINS HINGE ON UNDERSTANDING GENDER IDENTITY AS THE PRIMARY COMPONENT OF SEX ...... 989 A. Title IX Interpretation of Sex Recognizing Gender Identity ...... 990

* M. Dru Levasseur, J.D. Western New England University School of Law, is the Transgender Rights Project National Director for Lambda Legal Defense & Education Fund, Inc. and co-founder of the Jim Collins Foundation, Inc. † I wish to thank everyone who assisted me in the publication of this Article, including the Vermont Law Review team: Adam Schmelkin, Bridget Denzer, Charles Becker, Marie Horbar, Chelsea Dixon, Katherine Dressel, Jared Kelly, Cole Konopka, Katie Michel, Andrew Snow, Stephanie Thomson, and Alexandra Van Baars; Lambda Legal colleagues: Ilan Norwood, Hayley Gorenberg, Ryan Rasdall, and Greg Nevins; as well as Emile, Virginia, and Erika Levasseur, Joanne and Walter Davis, Tony Ferraiolo, Seth Marnin, Jillian Weiss, and Nancy Kirk. This work is dedicated to the transgender plaintiffs who have put their personal lives and dignity on the line before the eyes of the law to stand up for who they are and what they know is right, often at great cost. In particular, I want to thank Rhiannon O’Donnabhain and Michael Kantaras, two exceptional human beings. I would also like to recognize the friends and mentors I have intended to honor in this Article whose scholarship and activism has shaped my own sense of dignity and deserving, especially Jamison Green and Julie Greenberg. Finally, I would like to acknowledge and thank my partner, Rebekah Spicuglia, for her gift of unwavering support and unconditional love. 944 Vermont Law Review [Vol. 39:943

B. State Nondiscrimination Laws: Proper Interpretation of Gender Identity ...... 993 C. Policy Changes Defining Gender Identity as Determinant of Sex ... 994 1. Clarification of Sex (Includes Gender Identity) ...... 994 2. Gender Identity (Defining Component of Sex) ...... 995 V. NORMALIZING/LEGALIZING TRANSGENDER BODIES: DIFFERENCE WITHOUT SHAME ...... 996 A. Privacy, but for Whom? ...... 996 B. Dissecting Transgender Bodies: Disclosure and Legitimacy ...... 998 C. Respecting and Affirming: A Body Positive Approach ...... 1002 CONCLUSION ...... 1004

INTRODUCTION

At twenty-three I decided to live my life as a woman, full-time, in every way. A lot of people ask me, ‘What it is like?’ That’s like trying to ask me to describe air. It just is for me. I can’t really describe it to you because for me, it just is. But without it, I’m not me. —Donisha McShan, Lambda Legal client

In October 2013, Donisha McShan, an African-American transgender1 woman, was paroled to a halfway house in Marion, Illinois, to complete a

1. “Transgender” is used in this Article to describe people whose gender identity (one’s inner sense of being male, female, or a non-binary gender) differs from the assignment of gender at birth. While often seen as a separate identity, the term “transsexual” is used interchangeably throughout to reflect the conflation of the terms in U.S. case law. Some of the issues discussed herein may apply to people who are gender-nonconforming; however, this Article specifically addresses the gap in the law’s understanding of core gender identity, as opposed to expression. A person’s gender identity, like other factors of sex discussed below, may fall along a spectrum and may not fit neatly into the current legal binary of male or female. See, e.g., AM. PSYCHIATRIC ASS’N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 451–53 (5th ed. 2013) [hereinafter DSM-5] (defining gender identity to include identities other than male or female, and specifying diagnostic criteria for gender dysphoria to include such identities); WORLD PROF’L ASS’N FOR TRANSGENDER HEALTH, STANDARDS OF CARE FOR THE HEALTH OF TRANSSEXUAL, TRANSGENDER, AND GENDER NON-CONFORMING PEOPLE 1–2 (Eli Coleman et al. eds., 7th ed. 2012) [hereinafter WPATH STANDARDS OF CARE], available at http://admin.associationsonline.com/uploaded_files/140/files/Standards%20of%20Care,%20V7%20Full %20Book.pdf (noting that one purpose of WPATH is to promote health and “[h]ealth is promoted through public policies and legal reforms”). This Article discusses what occurs when a transgender person faces a binary legal system that makes a determination of which “box” a person must fill, and argues that core self-identity must be respected and affirmed by the law. 2015] Gender Identity Defines Sex 945 federal prison sentence and be treated for substance abuse.2 Upon arrival, she informed the facility that she is a transgender woman, but the facility proceeded to assign her to a room shared with four men in the male-only unit, rather than the female or co-ed units that were available.3 Staff insisted on addressing her with male pronouns despite her protest, and forbade her from bringing feminine items into the facility.4 They searched her living area several times and confiscated items that they considered LGBT- related5 or “remotely feminine.”6 During one search, a staff member told Ms. McShan, “in front of other residents, that she was a man and was not allowed to have feminine items. Staff members even threatened to send [her] back to prison if she did not comply and live as [a] male.”7 Ms. McShan contacted Lambda Legal’s National Legal Help Desk, and Lambda Legal submitted a demand letter to the facility outlining its obligations under state and federal law.8 The facility immediately took steps to rectify the situation by apologizing to Ms. McShan, moving her out of the room with men, referring to her using appropriate pronouns, and returning her personal items.9 In a video about her experience, Ms. McShan said:

They took all of my makeup, my favorite clothes, jewelry, bangles, earrings, necklaces, they even took my shower cap because it was pink. But the worst thing they took was my right to be myself. To have an advocacy group not only say that Donisha is right, but to say we stand behind her, it made me feel like I’m finally being heard. It was like I have been living my life on mute, singing, screaming, and yelling and somebody finally pressed the mute button and someone heard me.10

Ms. McShan’s experience of being stripped of her dignity because individuals or state actors did not acknowledge or respect her gender identity is not uncommon; the experience she had of receiving an apology and validation is. At the root of the widespread discrimination, harassment,

2. Donisha McShan, In My Own Words: Donisha McShan, LAMBDA LEGAL (June 10, 2014), http://www.lambdalegal.org/blog/20140610_donisha-mcshan-in-my-own-words. 3. Id. 4. Id. 5. “LGBT” is short for “Lesbian, Gay, Bisexual, or Transgender.” 6. McShan, supra note 2. 7. I BELIEVE IN ME: FIGHTING FOR TRANS RIGHTS IN PRISON (Lambda Legal 2014), available at http://www.lambdalegal.org/blog/20140904_lambda-legal-donisha-mcshan-celebrate-video. 8. McShan, supra note 2. 9. Id. 10. I BELIEVE IN ME: FIGHTING FOR TRANS RIGHTS IN PRISON, supra note 7.

946 Vermont Law Review [Vol. 39:943 and violence—both systemic11 and individual12—that transgender people face is a lack of understanding or affirmation that transgender people are who they say they are. It can be difficult for many cisgender13 people to grasp the struggles transgender people face. Widespread misunderstanding continues to exist even despite the recent increase in transgender visibility in the media.14 Justice for transgender people is linked to the validation of self- identity—you are who you know yourself to be. The source of much transphobia is “a fear of difference”:15 cisgender people and bodies are considered the “norm” from which transgender people differ, and there is a notion that transgender people are fraudulently being individuals they “biologically” are not. Transgender people are viewed as violating a “natural” or inherent boundary of fixed, binary sex.16 This simplistic understanding of sex, as two fixed binary categories, is medically, scientifically, and factually inaccurate, but still broadly enforced by

11. For a discussion of the harms of systemic racism, see DOMINIQUE APOLLON ET AL., MOVING THE RACE CONVERSATION FORWARD: HOW THE MEDIA COVERS RACISM, AND OTHER BARRIERS TO PRODUCTIVE RACIAL DISCOURSE, PART 1, at 3 (2014), available at https://www.raceforward.org/research/reports/moving-race-conversation-forward. See also Systems of Inequality: Criminal Justice, SYLVIA RIVERA LAW PROJECT, http://srlp.org/files/disproportionate_ incarceration.pdf (last visited Apr. 13, 2015) (illustrating how “systems of inequality” intersect and produce a higher than average risk of “imprisonment, police harassment, and violence for low income trans people”); Systems of Inequality: Poverty and Homelessness, SYLVIA RIVERA LAW PROJECT, http://srlp.org/files/disproportionate_poverty.pdf (last visited Apr. 13, 2015) (diagraming “how various factors combine into an interlocking system that keep many trans and gender non-conforming people in situations that are vulnerable and unequal”). 12. See, e.g., JAIME M. GRANT ET AL., NAT’L CTR. FOR TRANSGENDER EQUALITY & NAT’L GAY & LESBIAN TASK FORCE, INJUSTICE AT EVERY TURN: A REPORT OF THE NATIONAL TRANSGENDER DISCRIMINATION SURVEY 8 (2011), available at http://www.thetaskforce.org/downloads/reports/reports/ ntds_full.pdf (explaining how transgender and gender-nonconforming people are “discriminate[d] against, ridicule[d], and abuse[d]” within families, schools, the workplace, and healthcare settings). 13. “Cisgender” is used in this Article to describe people whose gender identity (one’s inner sense of being male, female, or a nonbinary gender) corresponds with their assigned gender at birth. E.g., Order Granting in Part and Denying in Part Motion to Dismiss and Denying Motion to Stay Discovery, at 19 n.8, Norsworthy v. Beard (N.D. Cal. 2014) (No. 14-cv-00695-JST), available at http://transgenderlawcenter.org/wp-content/uploads/2014/12/Norsworthy-MTD-Order1.pdf (“‘Cisgender is a term describing individuals whose gender corresponds with the legal sex that they were assigned at birth.’” (emphasis omitted) (quoting Olga Tomchin, Bodies and Bureaucracy: Legal Sex Classification and Marriage-Based Immigration for Trans* People, 101 CALIF. L. REV. 813, 816 n.12 (2013))). 14. See, e.g., Katy Steinmetz, America’s Transition, TIME, June 9, 2014, at 38 (discussing issues faced by the transgender community and featuring an interview with actress, Laverne Cox). 15. Jamison Green, “If I Follow the Rules, Will You Make Me a Man?”: Patterns in Transsexual Validation, 34 U. LA VERNE L. REV. 23, 29 (2012). 16. Cf. id., at 29–30 (“Transsexual people are easy scapegoats for fears about violated boundaries.”). 2015] Gender Identity Defines Sex 947 courts.17 For transgender people to be recognized as full human beings under the law, the legal system must make room for the existence of transgender people—not as boundary-crossers but as people claiming their birthright as part of a natural variation of human sexual development.18 This Article argues that the key to progress in transgender rights is for the courts to gain a clear understanding of who transgender people are using the latest medical science, which recognizes: (1) that sex is multi-faceted, and (2) that of the multiple factors determining sex, gender identity must be given the most weight because it is, in fact, “biological” and considered the primary determinant of an individual’s sex. Without a proper understanding of sex and the role that gender identity plays in determining sex, courts will continue to strip transgender people of their dignity and personhood under the law. In my experience as a transgender civil rights litigator, I have witnessed the deep confusion that courts, the general public, and even the LGBT community itself, have faced in understanding transgender people.19 This persistent gap in understanding exists in spite of decades of brilliant legal and medical scholarship from pioneers in the field. This Article highlights the work of these leading scholars in an effort to limn common themes surrounding the need for a proper understanding of the importance of gender identity and its role in sex determinations, and to demonstrate the weight of medical and legal authority that lends support. This Article also addresses the need for a more balanced approach to transgender rights work to afford greater dignity to transgender litigants. As one of very few openly transgender attorneys, I find it necessary to amplify the humanity of transgender litigants to bring a range of transgender voices to shape this doctrine. In this Article, I also call upon my colleagues in the field to question how to frame the language in these cases so it fosters more respectful ways to talk about transgender people’s experiences, lives, and bodies.

17. See Julie Greenberg, The Roads Less Traveled: The Problem with Binary Sex Categories, in TRANSGENDER RIGHTS 51, 51–52 (Paisley Currah et al. eds., 2006) [hereinafter Greenberg, Roads Less Traveled]. 18. Cf. Rachael Wallbank, Re Kevin In Perspective, 9 DEAKIN L. REV. 461, 468 (2004) (“As we permit transsexualism to be perceived in our culture as a natural aspect of human diversity . . . increasing numbers of people with transsexualism of all ages . . . are seeking to pursue their legal and human rights in respect of issues relating to education, relationships, wills, estates, discrimination and identity.”). 19. For example, the “Genderbread Person” graphic that inaccurately separates gender identity from “biological sex” is still widely used in the LGBT community as a training tool. See, e.g., Sam Killermann, The Genderbread Person v2.0, IT’S PRONOUNCED METROSEXUAL, http://itspronouncedmetrosexual.com/2012/03/the-genderbread-person-v2-0/ (last visited Apr. 14, 2015).

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Part I provides an overview of the lived experiences of transgender people and the widespread injustice that many systematically face. It also details the medical community’s understanding of, and support for, gender transition, and the pathways for recognition and affirmation of identity available through legal-name and gender-marker changes. Part II describes the legal horrors that transgender people have historically faced in the marriage/custody and discrimination contexts where courts have relied upon inconsistent and outdated methods of determining sex. In addition, Part II considers the limits to using Title VII sex stereotyping and conversion theories given judicial misunderstanding of gender identity as somehow separate from “biological sex.” Part III gives an overview of the etiology of sex and the medical community’s recognition of gender identity’s biological root and its primacy in determinations of sex. It also highlights the success of the use of such evidence in the exemplary Australian In re Kevin case, where a court provided legal latitude when viewing transsexualism through an intersex lens. Part IV argues that the recent gains in transgender rights, particularly in the contexts of Title IX of the federal Civil Rights Act of 1964 and state discrimination, hinge on the courts’ understanding gender identity as biological and as the primary determinant of sex, and notes how the latest transgender policy work reflects this trend. Finally, Part V analyzes the ways that courts often reinforce a cisgender norm and instead offers a critical approach to transgender legal work that assumes all bodies deserve the same recognition, respect, dignity, and privacy.

I. UNDERSTANDING “TRANSGENDER”

A. An Overview of Transgender People’s Lived Experience

Transgender people are an at-risk population. The statistics on discrimination, economic and health disparities, and violence20 and suicide

20. Transgender women of color, in particular, are being murdered at an epidemic rate. E.g., Mary Emily O’Hara, Trans Women of Color Face an Epidemic of Violence and Murder, VICE (Nov. 20, 2014), http://www.vice.com/read/trans-women-of-color-face-an-epidemic-of-violence-and-murder-673 (reporting 226 documented murders of transgender people, mostly women of color, globally between October 2013 and September 2014); see also NAT’L COAL. OF ANTI-VIOLENCE PROGRAMS (NCAVP), LESBIAN, GAY, BISEXUAL, TRANSGENDER, QUEER, AND HIV-AFFECTED HATE VIOLENCE IN 2012, at 8 (2013), available at http://www.avp.org/storage/documents/ncavp_2012_hvreport_final.pdf (“[A]nti- LGBTQ and HIV-affected hate violence disproportionately impacts LGBTQ and HIV-affected communities of color, transgender people, and transgender people of color.”). The “Stop Trans Murder” campaign aims to bring attention to the high rates of violence against transgender people, particularly transgender women of color. NAT’L LGBTQ TASK FORCE, Stop Trans Murders, http://stoptransmurders.org/ (last updated 2015). In addition to demanding immediate investigations and 2015] Gender Identity Defines Sex 949 speak volumes to the rampant transphobia in the United States. The largest survey to date of transgender-identified people,21 Injustice at Every Turn: A Report of the National Transgender Discrimination Survey (“NTDS Survey”), is illustrative.22 Respondents—individuals who identified as transgender and gender-nonconforming—were four times more likely to have a household income of less than $10,000 a year.23 Unemployment for survey respondents was twice the national unemployment rate, while transgender people of color experienced unemployment at four times the national rate.24 In addition to unemployment, these individuals “experienced debilitating negative outcomes,” including close to twice the rate of work in underground economies (e.g., sex work or selling drugs), twice the rate of homelessness, 85% more incarceration, and greater negative health outcomes (e.g., almost double the HIV infection rate and nearly double the rate of misusing alcohol or drugs) compared to those who were employed.25 Respondents who were employed also reported overwhelming negative experiences: 90% reported enduring harassment, mistreatment, or discrimination on the job.26 Additionally, 53% of all respondents reported verbal harassment or disrespect in a place of public accommodation, including hotels, restaurants, buses, airports, and government agencies.27 Perhaps most significantly:

A staggering 41% of respondents reported attempting suicide compared to 1.6% of the general population, with rates rising for those who lost a job due to bias (55%), were harassed/bullied in school (51%), had low household income, or were the victim of physical assault (61%) or sexual assault (64%).28

In the first-ever national survey to examine refusals of care and other barriers to health care confronting LGBT people and those living with HIV, accurate reporting of facts and pronouns, this campaign is also demanding that state and local community ordinances provide protection for transgender people when it comes to violent crimes. Id. 21. 6,450 transgender and gender-nonconforming individuals participated in the survey. GRANT ET AL., supra note 12, at 2. 22. See generally GRANT ET AL., supra note 12. 23. Id. at 2. 24. Id. at 3. The survey also revealed that, while “[d]iscrimination was pervasive throughout the entire sample, . . . the combination of anti-transgender bias and persistent, structural racism was especially devastating. People of color in general fare worse than white participants across the board, with African-American transgender respondents faring far worse than all others in many areas examined.” Id. at 2. 25. Id. at 3. 26. Id. 27. Id. at 5. 28. Id. at 2.

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When Health Care Isn’t Caring, transgender and gender-nonconforming respondents reported the highest rates of experiencing: refusals of care (nearly 27%), harsh language (nearly 21%), and even physical abuse (nearly 8%).29 Transgender respondents who were also people of color, older, immigrants, and/or low-income experienced even greater discrimination in health care settings than people who did not have compounded vulnerabilities.30 Particularly alarming is the pervasive exclusion in public and private health insurance for health care related to gender transition31 in spite of overwhelming evidence that such health care is medically necessary and cost-effective.32

29. LAMBDA LEGAL, WHEN HEALTH CARE ISN’T CARING: LAMBDA LEGAL’S SURVEY ON DISCRIMINATION AGAINST LGBT PEOPLE AND PEOPLE LIVING WITH HIV 10–11 (2010) [hereinafter LAMBDA LEGAL, HEALTH CARE], available at http://www.lambdalegal.org/sites/default/files/ publications/downloads/whcic-report_when-health-care-isnt-caring.pdf; cf. Transgender Rights Toolkit: A Legal Guide for Trans People and Their Advocates: Transition-Related Health Care, LAMBDA LEGAL, http://www.lambdalegal.org/sites/default/files/publications/downloads/trt_transition-related- health-care_3.pdf (last visited Apr. 14, 2015) [hereinafter Transition-Related Health Care] (explaining the medical community’s framework for understanding transition-related care). 30. LAMBDA LEGAL, HEALTH CARE, supra note 29, at 11–12. 31. A number of Fortune 500 companies now have inclusive insurance, Human Rights Campaign Found., Corporate Equality Index 2015: Rating American Workplaces on Lesbian, Gay, Bisexual and Transgender Equality 3 (2014), available at http://www.hrc.org/campaigns/corporate- equality-index, but the majority of public and private insurance companies still have discriminatory exclusions. E.g., Transgender Rights Toolkit: A Legal Guide for Trans People and Their Advocates: Overcoming Health Care Discrimination, Lambda Legal, http://www.lambdalegal.org/publications/ trt_overcoming-health-care-discrimination (last visited Apr. 18, 2015) [hereinafter Overcoming Health Care Discrimination]; Transition-Related Health Care, supra note 29. 32. Transition-Related Health Care, supra note 30; see also NCD140.3 Transsexual Surgery, Docket No. A-13-87, Decision No. 2576, at 1 (Dep’t of Health & Human Servs., Appellate Div. May 30, 2014), available at http://www.hhs.gov/dab/decisions/dabdecisions/dab2576.pdf (“[D]enying Medicare coverage of all transsexual surgery as a treatment for transsexualism is not valid . . . . [and] is no longer reasonable.”); AM. MED. ASS’N HOUSE OF DELEGATES, RESOLUTION: 122: REMOVING FINANCIAL BARRIERS TO CARE FOR TRANSGENDER PATIENTS 1–2 (2008) [hereinafter AMA RESOLUTION: 122], available at http://www.tgender.net/taw/ama_resolutions.pdf (“An established body of medical research demonstrates the effectiveness and medical necessity of mental health care, hormone therapy and sex reassignment surgery as forms of therapeutic treatment for many people diagnosed with GID . . . . [Therefore,] . . . the American Medical Association support[s] public and private health insurance coverage for treatment of gender identity disorder.”); JODY L. HERMAN, WILLIAMS INSTITUTE, COSTS AND BENEFITS OF PROVIDING TRANSITION-RELATED HEALTH CARE COVERAGE IN EMPLOYEE HEALTH BENEFITS PLANS: FINDINGS FROM A SURVEY OF EMPLOYERS 2 (Sept. 2013), available at http://williamsinstitute.law.ucla.edu/wp-content/uploads/Herman-Cost- Benefit-of-Trans-Health-Benefits-Sept-2013.pdf (“Employers report very low costs, if any, from adding transition-related coverage to their health benefits plans or from actual utilization of the benefit after it has been added – with many employers reporting no costs at all.”); LAMBDA LEGAL, PROFESSIONAL ORGANIZATIONS STATEMENTS SUPPORTING TRANSGENDER PEOPLE IN HEALTH CARE (2013) [hereinafter PROFESSIONAL STATEMENTS], available at http://www.lambdalegal.org/sites/default/files/ publications/downloads/fs_professional-org-statements-supporting-trans-health_4.pdf (collecting medical associations’ policy statements opposing discriminatory healthcare practices and exclusions from services related to gender transition); WPATH Clarification on Medical Necessity of Treatment, 2015] Gender Identity Defines Sex 951

In short, transphobia is rampant, and its consequences are dire. As the NTDS Survey found,

[n]early every system and institution in the United States [subjects transgender individuals] to . . . mistreatment ranging from commonplace disrespect to outright violence, abuse and the denial of human dignity. The consequences of these widespread injustices are human and real, ranging from unemployment and homelessness to illness and death.33

Given these realities, one might logically question whether anyone would choose to endure these hardships, that is, whether being transgender were not some core aspect of self that could not be denied. To understand the existence of transgender people, it is helpful to understand gender identity, as well as the current treatment model and medical support for gender transition.

B. Gender Transition

As the American Academy of Pediatrics and others argued in their Doe v. Clenchy amicus brief (“Clenchy Amicus”), gender identity refers to every “person’s basic sense of [gender],” and is a “deeply felt, core component of a person’s identity.”34 Gender identity “has a strong biological and genetic component”35 and “is the most important determinant of a person’s sex.”36 Everyone has a gender identity—not just transgender

Sex Reassignment, and Insurance Coverage for Transgender and Transsexual People Worldwide, WORLD PROF’L ASS’N FOR TRANSGENDER HEALTH (June 17, 2008), http://www.wpath.org/site_ page.cfm?pk_association_webpage_menu=1352&pk_association_webpage=3947 (“The medical procedures attendant to sex reassignment are not ‘cosmetic’ or ‘elective’ or for the mere convenience of the patient. These reconstructive procedures are not optional in any meaningful sense, but are understood to be medically necessary for the treatment of the diagnosed condition.”). 33. GRANT ET AL., supra note 12, at 8. 34. See Brief for Me. Chapter of the Am. Acad. of Pediatrics et al. as Amici Curiae Supporting Appellants at 5–6, Doe v. Clenchy, 2014 ME 11, 86 A.3d 600 (No. PEN-12-582), 2013 WL 8349676 [hereinafter Clenchy Amicus] (citing AM. PSYCHOLOGICAL ASS’N, ANSWERS TO YOUR QUESTIONS ABOUT TRANSGENDER PEOPLE, GENDER IDENTITY, AND GENDER EXPRESSION (2014), available at http://www.apa.org/topics/lgbt/transgender.pdf). 35. Id. at 6. 36. Id. at 8; see, e.g., Brown v. Zavaras, 63 F.3d 967, 971 (10th Cir. 1995) (stating that research concluding gender identity may be biological suggests reevaluating whether transgender people are a protected class for purposes of the Equal Protection Clause); In re Heilig, 816 A.2d 68, 73 (Md. 2003) (listing seven medically recognized factors composing a person’s gender, including “personal sexual identity” (citing Julie A. Greenberg, Defining Male and Female: Intersexuality and the Collision Between Law and Biology, 41 ARIZ. L. REV. 265, 278 (1999) [hereinafter Greenberg, Defining Male and Female]; In re Estate of Gardiner, 22 P.3d 1086 (2001); Maffei v. Kolaeton Indus., Inc., 626 N.Y.S.2d

952 Vermont Law Review [Vol. 39:943 people.37 Gender identity may be congruent or incongruent with the doctor’s determination of sex made at the time of birth,38 which is currently based on the appearance of genitals.39 Being transgender is a matter of natural diversity and part of a “culturally-diverse human phenomenon [that] should not be judged as inherently pathological or negative.”40 Some people experience discomfort or distress caused by the discrepancy between their gender identity and sex assigned at birth.41 This distress may reach a clinical level where it may support a formal diagnosis of gender dysphoria, a serious medical condition.42 Gender dysphoria43 is

391 (Sup. Ct. 1995))); In re Lovo-Lara, 23 I&N Dec. 746, 747, 752 (BIA 2005), available at http://www.justice.gov/eoir/vll/intdec/vol23/3512%20.pdf (explaining that “[a]ccording to medical experts” there are eight criteria which determine an individual’s sex, including “sexual identity”); Schroer v. Billington, 424 F. Supp. 2d 203, 211–13 (D.D.C. 2006) (recognizing that scientific observation may confirm that “‘sex is not a cut-and-dried matter of chromosomes’” but rather consists of “different components of biological sexuality” (quoting Ulane v. E. Airlines, Inc. 581 F. Supp. 821, 825 (N.D. Ill. 1983)); Julie A. Greenberg & Marybeth Herald, You Can’t Take it With You: Constitutional Consequences of Interstate Gender Identity Rulings, 80 WASH. L. REV. 819, 825–26 (2005) (discussing eight factors that contribute to a person’s sex, including gender identity); Norman P. Spack, An Endocrine Perspective on the Care of Transgender Adolescents, 13 J. GAY & LESBIAN MENTAL HEALTH 309, 312–13 (2009) (explaining that surgeons have little to do with the transition process aside from plastic surgery “because the individual has already assigned his or her own gender and sex”). Part III will discuss the details of all the components of sex. 37. Cf. supra note 1. 38. See supra note 1. 39. Assignments of sex at birth have not always been based on genital appearance. See discussion infra Part III.B. 40. WPATH STANDARDS OF CARE, supra note 1, at 4 (quoting Press Release, World Prof’l Ass’n of Transgender Health (May 26, 2010), available at http://www.wpath.org/uploaded_files/140/ files/de-psychopathologisation%205-26-10%20on%20letterhead.pdf). 41. Norman M. Fisk, Editorial, Gender Dysphoria Syndrome—The Conceptualization That Liberalizes Indications for Total Gender Reorientation and Implies a Broadly Based Multi-Dimensional Rehabilitative Regimen, 120 W.J. MED. 386, 387–88 (1974), available at http://www.ncbi.nlm.nih.gov/ pmc/articles/PMC1130142/pdf/westjmed00309-0060.pdf; see also Gail Knudson et al., Recommendations for Revision of the DSM Diagnoses of Gender Identity Disorders: Consensus Statement of the World Professional Association for Transgender Health, 12 INT’L J. TRANSGENDERISM 115, 116 (2010) (noting “any diagnosis should be based on the experience of distress resulting from an individual’s gender identity conflict”). 42. See e.g., Fields v. Smith, 712 F. Supp. 2d 830, 862 (E.D. Wis. 2010), aff’d, 653 F.3d 550 (7th Cir. 2011) (holding that gender dysphoria was “a severe medical condition” for purposes of establishing liability under the Eighth Amendment); DSM-5, supra note 1, at 451–53 (“[Gender dysphoria] causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.”); WORLD HEALTH ORG., International Classification of Diseases and Related Health Problems (2007), available at http://apps.who.int/classifications/apps/icd/icd10online2007/ index.htm?gf60.htm (categorizing “gender identity disorder” and “transsexualism” as “disorders of adult personality and behavior” which are disorders that “represent extreme or significant deviations from the way in which the average individual in a given culture perceives, thinks, feels and, particularly, relates to others”). The classification of gender dysphoria as a mental health diagnosis rather than a medical diagnosis is currently under review given that treatment focuses solely on addressing the body to match the brain sex. The American Psychiatric Association recently took steps to address the stigma of the 2015] Gender Identity Defines Sex 953 recognized by all major medical and mental health organizations, including the American Psychiatric Association,44 the World Health Organization,45 the American Medical Association,46 the Endocrine Society,47 the American Academy of Family Physicians,48 the American College of Obstetricians former classification of “Gender Identity Disorder” by re-designating the diagnosis as “Gender Dysphoria” in the May 2013 release of the DSM’s Fifth Edition. AM. PSYCHIATRIC ASS’N, GENDER DYSPHORIA 1–2 (2013), available at www.dsm5.org/Documents/Gender%20Dysphoria%20Fact%20 Sheet.pdf (describing the importance of changing “disorder” to “dysphoria” in the DSM). For more information on the current movement to the medical framework, see generally KELLEY WINTERS, GENDER MADNESS IN AMERICAN PSYCHIATRY: ESSAYS FROM THE STRUGGLE FOR DIGNITY (2008) (describing the current movement to remove or modify Gender Identity Disorder from DSM-5), and GLOBAL ACTION FOR TRANS EQUALITY, IT’S TIME FOR REFORM: TRANS* HEALTH ISSUES IN THE INTERNATIONAL CLASSIFICATIONS OF DISEASES 14–16 (2011), available at http://globaltransaction.files.wordpress.com/2012/05/its-time-for-reform.pdf (summarizing experts’ discussion regarding need to move transsexualism from category of “mental and behavioural disorders”). 43. Or its equivalent under a different name, e.g. “gender identity disorder” or “transsexualism.” 44. DSM-5, supra note 1, at 451–52; cf. Jack Drescher & Ellen Haller, Am. Psychiatric Ass’n, Position Statement on Access To Care for Transgender and Gender Variant Individuals (2012) (discussing how including “the [Gender Identity Disorder] diagnosis in the DSM has not served its intended purpose of creating greater access to care”). 45. WORLD HEALTH ORG., supra note 42 (recognizing “transsexualism,” which is characterized “by a sense of discomfort with, or inappropriateness of, one’s anatomic sex,” and “gender identity disorder of childhood,” which is “characterized by a persistent and intense distress about assigned sex”). The World Health Organization recently proposed removing the “gender identity disorders” category from “mental and behavioural disorders” in its International Classification of Diseases and replacing it with a “‘gender incongruence’” category. A Step in the Right Direction: WHO Proposes to Remove F64 “Gender Identity Disorders” From the Mental and Behavioral Disorders, TRANSGENDER EUROPE (Aug. 22, 2014), available at http://tgeu.org/who-publishes-icd-11-beta. 46. See Brief for Medical and Mental Health Professionals: American Medical Association, et al. as Amici Curiae Supporting Appellees at 1, Fields v. Smith, 653 F.3d 550 (7th Cir. 2011) (Nos. 10- 2339, 10-2466), available at http://www.lambdalegal.org/in-court/legal-docs/fields_wi_20101009_ amicus-brief-mental-health-professionals http://www.lambdalegal.org/in-court/legal-docs/fields_wi_ 20101009_amicus-brief-mental-health-professionals (“The AMA has recognized [Gender Identity Disorder (“GID”)] as a serious medical condition that can cause intense emotional pain and suffering, and when not properly treated, result in clinically significant psychological distress, dysfunction, debilitating depression, and, for some, self-mutilation, thoughts and attempts of suicide, and death. Based on medical research, the AMA has found that hormone therapy and [sex reassignment surgery (“SRS”)] are medically necessary and effective therapeutic treatments for many people diagnosed with GID.”). 47. See WYLIE C. HEMBREE ET AL., ENDOCRINE SOC’Y, ENDOCRINE TREATMENT OF TRANSSEXUAL PERSONS: AN ENDOCRINE SOCIETY CLINICAL PRACTICE GUIDELINE 7 (2009), available at https://www.endocrine.org/~/media/endosociety/Files/Publications/Clinical%20Practice%20 Guidelines/Endocrine-Treatment-of-Transsexual-Persons.pdf (defining and discussing “gender dysphoria”). 48. See, e.g., AM. ACADEMY OF FAMILY PHYSICIANS, RESOLUTION NO. 1004 (May 3, 2012), available at http://www.aafp.org/dam/AAFP/documents/about_us/special_constituencies/2012RCAR_ Advocacy.pdf (“Gender Identity Disorder is a medically recognized condition.”); Madeline B. Deutsch & Jamie L. Feldman, Updated Recommendations from the World Profession Association for Transgender Health Standards of Care, 87 AM. FAM. PHYSICIAN 92, 93 (2013), available at

954 Vermont Law Review [Vol. 39:943 and Gynecologists,49 and the American Psychological Association.50 The availability of a diagnostic classification serves to facilitate appropriate treatment, which alters the mutable primary and secondary sex characteristics to match the core self-identity, rather than alter the fixed, core gender identity.51 The World Professional Association for Transgender Health (“WPATH”), the leading medical authority on gender dysphoria, has developed Standards of Care (“SOC”) for the treatment of the condition.52 These standards have been recognized as authoritative by every major medical and mental health association53 and by the courts that have considered them.54

http://www.aafp.org/afp/2013/0115/p89.pdf (discussing WPATH Standards of Care and gender dysphoria); cf. FAQ On Access to Transition-Related Care, LAMBDA LEGAL, http://www.lambdalegal.org/know-your-rights/transgender/transition-related-care-faq (last visited Apr. 14, 2015) (stating that American Academy of Family Physicians and other organizations have issued policy statements declaring sex reassignment surgery and/or hormone therapy “medically necessary” for individuals with gender dysphoria). 49. See AM. COLLEGE OF OBSTETRICIANS & GYNECOLOGISTS, COMMITTEE OPINION, NUMBER 512: HEALTH CARE FOR TRANSGENDER INDIVIDUALS 1–3 (2011), available at http://www.acog.org/- /media/Committee-Opinions/Committee-on-Health-Care-for-Underserved-Women/co512.pdf?dmc= 1&ts=20141202T1553397149 (discussing gender identity disorder). 50. Cf. Barry S. Anton, Proceedings of the American Psychological Association for the Legislative Year 2008, 64 AM. PSYCHOL. 372 (2009), available at http://www.apa.org/about/policy/ transgender.aspx (“Discrimination and prejudice against people based on their actual or perceived gender identity or expression detrimentally affects psychological, physical, social, and economic well- being.”); Answers to Your Questions About Transgender People, Gender Identity, and Gender Expression, AM. PSYCHOLOGICAL ASS’N (2015), http://www.apa.org/topics/lgbt/transgender.aspx (discussing how DSM-5 recognizes “gender dysphoria” but the diagnosis is controversial). For a summary of major medical and mental health organizations’ positions statements on the importance of access to medical and mental health care for transgender people, see PROFESSIONAL STATEMENTS, supra note 33. 51. WPATH, STANDARDS OF CARE, supra note 1, at 5–6; see also Greenberg & Herald, supra note 36, at 884 (“Medical and psychological experts believe that the body’s sexual attributes can be altered to conform to a person’s ‘brain’ sex; conversely, no effective treatment exists to alter the ‘brain’ sex so that it conforms to anatomical sex.”). 52. WPATH, STANDARDS OF CARE, supra note 1, at 1. 53. See, e.g., PROFESSIONAL STATEMENTS, supra note 32, at 3 (noting that the American College of Nurse-Midwives endorses the 2011 WPATH Standards of Care); Anton, supra note 50, at 372 (noting that the American Psychological Association is “in a position to influence policies and practices in institutional settings, particularly regarding implementation of the [WPATH] Standards of Care”); AMA RESOLUTION: 122, supra note 32, at 1 (noting that WPATH “has established internationally accepted Standards of Care”). 54. See, e.g., De’lonta v. Johnson, 708 F.3d 520, 522–23 (4th Cir. 2013) (“The [WPATH] Standards of Care . . . are the generally accepted protocols for the treatment of GID.”); Fields v. Smith, 712 F. Supp. 2d 830, 844 (E.D. Wis. 2010); Glenn v. Brumby, 724 F. Supp. 2d 1284, 1289 & n.4 (N.D. Ga. 2010) (discussing WPATH Standards of Care and finding “sufficient evidence that statements of WPATH are accepted in the medical community”). 2015] Gender Identity Defines Sex 955

Gender identity is also referred to as the “brain sex” because it is hardwired in the brain.55 As S.J. Langer explains in his article, Our Body Project: From Mourning to Creating the Transgender Body, from a clinical perspective, gender dysphoria is less a “belief” or “desire for the opposite sex genitals and secondary sex characteristics” and more a “sensation” and “self-knowledge” for “what one never had but should have had.”56 Rachael Wallbank explains it well in her article “Re Kevin In Perspective”:

The needs for sex affirmation and sex affirmation treatment by a person with transsexualism are not instances of desire or predilection, but rather are so compelling that the need to bring harmony between the life of sexual experience and the person’s brain sex means that people who experience transsexualism are prepared to risk everything, including their livelihood, their family connections and their health, by undergoing sex affirmation treatment in order to bring that harmony about . . . .57

Langer describes how scientific research shows a connection between gender dysphoria and the phenomenon of phantom limbs, where the brain recognizes a sensation from a body part that has been lost due to surgery, accident, or birth defect:

The person feels what is missing or what feels like a superfluous and distressing addition. There is an experience of something that was lost, be it genitals or chest or hips or a clumsy addition that does not belong. The physical presence is missing and the necessity of that part of the body is mourned, which has also been characterized as dysphoria.58

55. See, e.g., Wallbank, supra note 18, at 461–62, 467, 493 (explaining that “brain sex” is an individual’s “innate sexual identity” and expert opinion concludes that “biological sex is multidimensional” and “ultimately determined by the sexual differentiation of the human body part rather than by body parts”); William Reiner, To be Male or Female —That Is the Question, 151 ARCHIVES PEDIATRIC & ADOLESCENT MED. 224, 225 (1997) (“[T]he organ that appears to be critical to psychosexual development and adaptation is not the external genitalia, but the brain.”). 56. S.J. Langer, Our Body Project: From Mourning to Creating the Transgender Body, 15 INT’L J. TRANSGENDERISM 66, 68 (2014), available at https://www.academia.edu/6938485/Our_Body_ Project_From_Mourning_to_Creating_the_Transgender_Body. 57. Wallbank, supra note 18, at 482. 58. Langer, supra note 58, at 68.

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Thus, the goal of gender-affirming treatment is “congruence, not aesthetics.”59 There is no “‘cure’” and “[n]either counseling nor medication will lead a person to conclude that he actually identifies as the gender assigned to him at birth.”60 Gender identity “is not subject to voluntary control, and cannot be changed by therapy or other means.”61 Rather, the internationally recognized treatment protocol for gender transition is focused on affirming people in their true sex—their gender identity— socially, medically, and legally.62 As the Clenchy Amicus states:

The medical treatment does not make a woman into a man or a man into a woman. A transgender man is already a man because that is his gender identity, and a transgender woman is already a woman because that is her gender identity. Instead, medical treatment helps transgender people have bodies that reflect their identity as male or female.63

“Treatment is individualized” and may include medical interventions, such as hormone therapy or surgeries, depending on a person’s level of

59. Id. at 70; cf. O’Donnabhain v. Comm’r of Internal Revenue, 134 T.C. 34, 99–100 (2010) (Holmes, J., concurring) (“Hormones and SRS are, I would hold as a general matter in such cases, directed at treating GID in this sense and do not so much improve appearance as create a new one.”). 60. Greenberg & Herald, supra note 36, at 868. “Although psychotherapy may help the transsexual deal with the psychological difficulties of transsexualism, courts have recognized that psychotherapy is not a ‘cure’ for transsexualism. Because transsexualism is universally recognized as inherent, rather than chosen, psychotherapy will never succeed in ‘curing’ the patient: . . . Consequently, it has been found that attempts to treat the true adult transsexual psychotherapeutically have consistently met with failure.’” Id. at 868 n.286 (quoting In re Heilig, 816 A.2d 68, 78 (Md. 2003)). For scientific support that gender identity likely has a neurological basis, see generally Frank P.M. Kruijver et al., Male to Female Transsexuals Have Female Neuron Numbers in the Limbic Nucleus, 85 J. CLINICAL ENDOCRINOLOGY & METABOLISM 2034 (2000) (“[T]he present study . . . provides unequivocal new data supporting the view that transsexualism may reflect a form of brain hermaphroditism such that this limbic nucleus itself is structurally sexually differentiated opposite to the transsexual’s genetic and genital sex.”), and Jiang-Ning Zhou et al., A Sex Difference in the Human Brain and Its Relation to Transsexuality, 378 NATURE 68 (1995) (“Our study . . . show[s] a female brain structure in genetically male transsexuals and supports the hypothesis that gender identity develops as a result of an interaction between the developing brain and sex hormones.”). 61. See Clenchy Amicus, supra note 34, at 8–9; see also supra note 1 (explaining that a person’s gender identity may include identities other than male or female). 62. See WPATH, STANDARDS OF CARE, supra note 1, at 3 (stating a “core principle[]” of WPATH Standards of Care is to “provide care . . . that affirms patients’ gender identities”); Clenchy Amicus, supra note 34, at 8–9 (“The purpose of treatment is to alter the body to match the identity that already exists and to support the person’s ability to live fully in that identity.”); Spack, supra note 36, at 312–13 (“When speaking professionally about the process of changing a patient’s gender, . . . I like the term affirmed rather than trans because a person cannot really transition to something he already is.”). 63. Clenchy Amicus, supra note 34, at 9. 2015] Gender Identity Defines Sex 957 distress.64 Many transgender people in need of medically necessary care are unable to access it due to ongoing discriminatory exclusions in health insurance coverage.65 Others may not require certain medical steps as part of their “appropriate clinical treatment.”66 For them, the most critical aspect to transition is living in accordance with their gender identity in all aspects of life.67 As the Clenchy Amicus points out, “current medical standards support the full [social] integration and inclusion of transgender [people] . . . based on their gender identity,”68 not based on any medical hurdles that could be a part of gender transition.69 “[T]here is no scientific or medical basis for withholding full recognition” of a transgender person in their affirmed gender or not treating them as a “full” or “real” girl or boy, or man or woman.70 Indeed, preventing a transgender person from living consistently with their gender identity can have drastic consequences, including higher rates of depression, suicidality, and substance abuse.71 When children are

64. WPATH STANDARDS OF CARE, supra note 1, at 5; see also Fields v. Smith, 653 F.3d 550, 553–54 (7th Cir. 2011) (discussing various treatment options for gender identity disorder). 65. Transition-Related Health Care, supra note 29; But see NCD 140.3, Transsexual Surgery, Docket No. A-13-87, Decision No. 2576, at 24 (Dep’t of Health & Human Serv., Appellate Div. May 30, 2014), available at http://www.hhs.gov/dab/decisions/dabdecisions/dab2576.pdf (“[T]he alleged ‘experimental’ nature of transsexual surgery as a basis for noncoverage of all transsexual surgery is not reasonable in light of the unchallenged new evidence and contributes to our conclusion that the [National Coverage Determination denying Medicare coverage of all transsexual surgery as a treatment for transsexualism] is not valid.”). 66. See WPATH STANDARDS OF CARE, supra note 1, at 8–9 (explaining that some individuals do not require hormone therapy or surgery to address gender dysphoria). For a general discussion of the “appropriate clinical treatment” standard being adopted by state and federal agencies for gender-marker changes, see Lisa Mottet, Modernizing State Vital Statistics Statues and Policies to Ensure Accurate Gender Markers on Birth Certificates: A Good Government Approach to Recognizing the Lives of Transgender People, 19 MICH. J. GENDER & L. 373, 383 (2013), available at http://repository.law.umich.edu/cgi/viewcontent.cgi?article=1027&context=mjgl. 67. See WPATH STANDARDS OF CARE, supra note 1, at 8–9 (discussing the individualized nature of treatment); see also Clenchy Amicus, supra note 34, at 8–10 (“[T]he physical interventions that transgender people may undergo—such as hormone blockers, cross-hormone therapy, and sex- reassignment surgeries—simply help a transgender person live congruently with his or her gender identity . . . .”); Langer, supra note 56, at 67 (“In treatment, the trans[gender] person must connect with the painful aspects of the body in order to fully realize what changes are necessary to create a more livable existence.”). 68. Clenchy Amicus, supra note 34, at 10. 69. Cf. WORLD PROF’L ASS’N FOR TRANSGENDER HEALTH, WPATH STATEMENT ON LEGAL RECOGNITION OF GENDER IDENTITY (Jan. 19, 2015), available at http://www.wpath.org/uploaded_files/ 140/files/WPATH%20Statement%20on%20Legal%20Recognition%20of%20Gender%20Identity%201- 19-15.pdf (“No particular medical, surgical, or mental health treatment or diagnosis is an adequate marker for anyone’s gender identity, so these should not be requirements for legal gender change.”). 70. Clenchy Amicus, supra note 34, at 9. 71. See id. at 7, 10 (discussing how efforts to alter a child’s gender identity “often caused significant harm” and individuals who are unable to live consistent with their gender identity experience

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“not . . . able to live consistently with their gender identity, ‘many gender dysphoric adolescents are considerably depressed, anxious, or both. Many engage in self-harming behavior and report suicidal ideation and attempts.’”72 Shame can be a common experience for a transgender or gender-nonconforming child,73 and parental support can be key:

Parental efforts to support and affirm a child’s gender expression are among the most important protective factors for supporting the child’s long term health. In contrast, parental or caregiver behaviors such as pressuring a child to be more or less masculine or feminine, or telling a child that how he or she acts or looks will shame or embarrass the family, significantly increase the child’s risk for depression, substance abuse, unprotected sex, and suicidality in adulthood.74

The role of treatment, therefore, is to “undo . . . negative mirroring” and to “believe and affirm” the transgender person.75 Because medical treatment standards for gender transition call for this validation of the core gender identity, it can be crucial for transgender people to find ways to be legally recognized as who they are, particularly with regard to identity documents (“IDs”).

damage to their mental health and well-being); see, e.g., id. at 10; STATE OF CALIFORNIA, DEP’T OF INSURANCE, REG-2011-00023, ECONOMIC IMPACT ASSESSMENT: GENDER NONDISCRIMINATION IN HEALTH INSURANCE (2012), available at http://transgenderlawcenter.org/archives/5616 (last visited Apr. 14, 2015). 72. Clenchy Amicus, supra note 34 (quoting Laura Edwards-Leeper & Norman P. Spack, Psychological Evaluation and Medical Treatment of Transgender Youth in an Interdisciplinary “Gender Management Service” (GeMS) in a Major Pediatric Center, 59 J. HOMOSEXUALITY 321, 326 (2012)). 73. See Langer, supra note 56, at 67 (quoting Lone Frølund, Early Shame and Mirroring, 20 SCANDINAVIAN PSYCHOANALYTIC REV. 35, 37 (1997)). 74. Clenchy Amicus, supra note 34 at 16, (citing Caitlin Ryan, Supportive Families, Healthy Children: Helping Families with Lesbian, Gay, Bisexual and Transgender Children, FAMILY ACCEPTANCE PROJECT (2009), available at https://sait.usc.edu/lgbt/files/Supportive%20Families%20 Healthy%20Children.pdf); cf. Arnold H. Grossman & Anthony R. D’Augelli, Transgender Youth and Life-Threatening Behaviors, 37 SUICIDE & LIFE-THREATENING BEHAV. 527, 534–35 (2007), available at http://transformingfamily.org/pdfs/Transgender%20Youth%20and%20Life%20Threatening%20 Behaviors.pdf (finding transgender youth face highest rates of suicide risk of all LGBT youth). 75. Langer, supra note 56, at 67; see also Robert Wallace & Hershel Russell, Attachment and Shame in Gender-Nonconforming Children and Their Families: Toward a Theoretical Framework for Evaluating Clinical Interventions, 14 INT’L. J. TRANSGENDERISM 113, 113–14 (2013) (“[S]trategies that affirm rather than redirect gender behavior are more consistent with an attachment-based approach.”). 2015] Gender Identity Defines Sex 959

C. Recognition of Identity Through Legal-Name and Gender-Marker Changes

IDs that accurately reflect who a transgender person is can be critical to transgender people’s safety and well-being.76 As Lisa Mottet points out in her article, Modernizing State Vital Statistics Statutes and Policies to Ensure Accurate Gender Markers on Birth Certificates: A Good Government Approach to Recognizing the Lives of Transgender People, accurate IDs provide official recognition in social and legal settings, and can help reduce pervasive violence, harassment, and discrimination.77 Many transgender people consider changing their name and gender-marker designation as the first and most critical step to being legally validated in their correct gender. The United States has generally recognized the existence of transgender people by providing legal mechanisms for people to update their gender markers on state and federal documents.78 The rules for changing gender-marker designations, however, are complex and vary across jurisdictions and administrative bodies, making it challenging, and sometimes impossible,79 for many transgender people to have updated and consistent IDs.80 Many people are only able to change their gender marker on certain IDs—like passports and driver’s licenses—but not others—like

76. For an overview on the processes for changing various IDs, see LAMBDA LEGAL, Know Your Rights: FAQ About Identity Documents, http://www.lambdalegal.org/know-your- rights/transgender/identity-document-faq (last visited Apr. 14, 2015). 77. See generally Mottet, supra note 66, at 393–99 (discussing how transgender people with IDs that do not match their gender identity are more likely to face hiring discrimination, police harassment, and health care discrimination, as well as more likely to have limited opportunities to marry or attend sex-segregated colleges). According to the NTDS Survey, only 21% of respondents were able to update all of their IDs to reflect who they are. GRANT ET AL., supra note 12, at 139. Those without accurate IDs reported being harassed (40%), attacked or assaulted (3%), or asked to leave an establishment (15%). Id. at 153. 78. See Dean Spade, Documenting Gender, 59 HASTINGS L.J. 731, 734 (2008), available at http://www.deanspade.net/wp-content/uploads/2010/07/documenting.pdf (“Recognizing the social and economic difficulties faced by those whose lived expression of gender does not match their identity documentation, state and federal agencies have over time created a variety of policies aimed at allowing gender marker change on documents commonly used to verify identity.”). 79. One state—Tennessee—even has a statute that expressly forbids recognition of gender reclassification on birth certificates. TENN. CODE ANN. § 68-3-203(d) (2011). Ohio, Idaho, and Puerto Rico have court orders that prevent transgender people born in those jurisdictions from correcting their birth certificates. Mottet, supra note 66, at 382 nn. 21–23. 80. For an overview of state-by-state requirements for changing sex designations on birth certificates, see Changing Birth Certificate Sex Designations: State-by-State Guidelines, LAMBDA LEGAL, http://www.lambdalegal.org/know-your-rights/transgender/changing-birth-certificate-sex- designations (last updated Feb. 3, 2015) [hereinafter State-by-State Guidelines]. For a recent overview of the various rules for changing gender markers and the detrimental effects of complex and differing methods to alter gender identification, see generally Mottet, supra note 66, at 428–35.

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Medicaid cards or birth certificates—depending on rules tied to their place of residence, where they were born, and what medical treatment their transition has required and has been available to them.81 For example, the majority of states still have outdated surgical requirements for birth certificate corrections or amendments.82 These requirements not only contradict contemporary medical standards,83 but also bar many transgender people from obtaining proper identification because the majority of public and private health insurance plans maintain discriminatory exclusions for such care, or because those specific treatments are not considered medically necessary for the individualized treatment.84 In the past five years, the federal government and a handful of states have taken steps to modernize requirements for gender-marker changes on official documents, recognizing that requiring surgery contradicts current medical understanding of gender transition.85 In June 2010, the U.S. Department of State updated its policy with regard to passports and Consular Reports of Birth Abroad of U.S. Citizens to require “appropriate clinical treatment for gender transition,” to better reflect the individualized treatment protocols in the WPATH SOC.86 The U.S. Department of Veterans Affairs,87 the Office of Personnel Management,88 and the Social

81. See Transgender Rights Toolkit: A Legal Guide for Trans People and Their Advocates: Identity Documents, LAMBDA LEGAL, http://www.lambdalegal.org/sites/default/files/publications/ downloads/trt_transgender_id_1.pdf (last visited Apr. 14, 2015) [hereinafter Identity Documents]. 82. See State-by-State Guidelines, supra note 80. 83. See, e.g., AMA Calls for Modernizing Birth Certificate Policies, AMA NEWS ROOM (June 9, 2014), http://www.ama-assn.org/ama/pub/news/news/2014/2014-06-09-modernizing-birth-certificate- policies.page (reporting on American Medical Association’s new policy which supports eliminating the surgical requirement for changing birth certificates). 84. See GRANT ET AL., supra note 12, at 77, 84 (reporting that majority of respondents had not had genital surgery “despite being desired by most respondents”); Overcoming Health Care Discrimination, supra note 31 (“[M]ost insurance companies refuse to cover transition-related health care even when a doctor considers it medically necessary.”); Mottet, supra note 66, at 407–09 (explaining reasons why surgeries are not common); Spade, supra note 78, at 753–54 (explaining the high rates of health care discrimination and lack of health care access for transgender individuals). 85. Mottet, supra note 66, at 400–05. 86. Id. at 404 (quoting U.S. DEP’T OF ST., 7 FOREIGN AFF. MANUAL 1320 app. M(b) (2011), available at http://www.state.gov/documents/organization/143160.pdf (internal quotation marks omitted)). 87. Veterans Administration Makes Important Clarification on Records Policy, CTR. FOR TRANSGENDER EQUAL. BLOG (March 2, 2012, 4:28 PM) http://transgenderequality.wordpress.com/ 2012/03/02/veterans-administration-makes-important-clarification-on-records-policy/. 88. OFFICE OF PERS. MGMT., THE GUIDE TO PERSONNEL RECORDKEEPING: HOW TO RECONSTRUCT A PERSONNEL FILE 4-6 (June 1, 2011), available at https://www.opm.gov/policy-data- oversight/data-analysis-documentation/personnel-documentation/personnel-recordkeeping/ recguide2011.pdf. 2015] Gender Identity Defines Sex 961

Security Administration followed suit.89 Washington, Oregon, California, Vermont,90 the District of Columbia,91 New York State,92 and New York City93 no longer require surgery, and New Jersey has a bill pending.94 Some changes have been in response to successful litigation by transgender people challenging the constitutionality of denying a gender-marker change.95 While the United States is not even close to following the lead of countries like Argentina that allow transgender people to self-attest to who they are without any third-party validation,96 some U.S. jurisdictions are taking steps to remove gender markers completely from IDs to lessen the risk of inviting “gender-policing” by third parties.97

89. SOC. SEC. ADMIN.. RM 10212.200 CHANGING NUMIDENT DATA FOR REASONS OTHER THAN NAME CHANGE (June 6, 2013), available at https://secure.ssa.gov/poms.nsf/lnx/0110212200. The Department of Defense remains the sole federal agency to maintain a surgical requirement for gender- marker changes. Autumn Sandeen, Changing My Documented Gender with the Department of Defense, LGBT WEEKLY (May 16, 2013), http://lgbtweekly.com/2013/05/16/changing-my-documented-gender- with-the-department-of-defense/. 90. Mottet, supra note 66, at 402–04. 91. JaParker Deoni Jones Birth Certificate Equality Amendment Act of 2013, D.C. Act 20-153 § 11(a) (2013) (to be codified at D.C. Code § 7-210.01). 92. Letter from Guy Warner, Dir. Bureau of Vital Records, N.Y. State Dep’t of Health, Overview of New York State Birth Certificate Amendment Process, available at http://www.empirejustice.org/assets/pdf/policy-advocacy/doh-bc.pdf (last visited Apr. 14, 2015); see also Julia A. Sáenz, LGBT Policy Update—June 2014, EMPIRE JUSTICE CTR. (June 26, 2014), http://www.empirejustice.org/policy-advocacy/legislative-updates/lgbt-policy-update-june-2014.html (discussing how New York changed its gender-marker policies in 2014). 93. NYC, NEW YORK, NYC COUNCIL CODE ch. 1, § 17-761 (2014), available at http://legistar.council.nyc.gov/LegislationDetail.aspx?ID=1937607&GUID=DA36C81B-7498-49EB- 9581-A785349F4C2F&Options=&Search; Parker Marie Molloy, Trans New Yorkers Celebrate Birth Certificate News, ADVOCATE.COM (June 5, 2014 9:42 AM), http://www.advocate.com/politics/ transgender/2014/06/05/trans-new-yorkers-celebrate-birth-certificate-news. 94. Assembly No. 4907, 215th Leg., An Act Concerning Amended Certificates of Birth and Amending P.L. 1984, c. 191 (N.J.) (introduced May 6, 2013). 95. See, e.g., K.L. v. Alaska, Dep’t of Admin., Div. of Motor Vehicles, Case No. 3AN-11- 05431 CI, 2012 WL 2685183, at *3, *8 (Alaska Super. Ct. Mar. 12, 2012) (holding that lack of a valid policy for changing the sex designation on a driver’s license violated the state constitutional privacy rights of a transgender individual); cf. Mottet, supra note 66, at 423 (arguing that transgender people deserve heightened or strict scrutiny in equal protection analysis). An Oregon law allows sex designation on birth certificates to be changed “if the court determines that the individual has undergone surgical, hormonal or other treatment appropriate for that individual for the purpose of gender transition and that sexual reassignment has been completed.” OR. REV. STAT. § 33.460 (2013), available at https://www.oregonlegislature.gov/bills_laws/lawsstatutes/2013ors033.html. 96. Mottet, supra note 66, at 385–86 (citing Regime for Recognition and Respect for Gender Identity, Law No. 26743, 32,404 B.O. 1, 2 (Arg.) (2012)); Identity Documents, supra note 81. 97. Mottet, supra note 66, at 395–96, 402–05. Reliance on gender markers often sets up degrading and discriminatory interactions where third parties have license to inspect IDs for their own personal opinion about whether a person is “male or female” enough. Given that many people do not fit neatly into the gender stereotypes of the binary system reflected on IDs, many people—transgender or not—experience daily struggles. See GRANT ET AL., supra note 12, at 24 (reporting 14% of survey respondents identified as gender non-conforming). While the United States does not provide a third

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Transgender people who are able to meet the federal, state, and administrative authorities’ varying standards to correct or amend their gender markers often expect this will be a “legal magic wand,” providing affirmation, recognition, and safety from challenges to their identity.98 However, one’s “legal sex” is still debated in legal proceedings requiring determinations of sex.99 A court order that states the sex that has been corrected to match gender identity will be given the most deference in legal proceedings and is thus the most protective step a transgender person can take. However, court orders are difficult to obtain for people who cannot afford an attorney, and they raise privacy issues.100 Also, judges who are unfamiliar with transgender people or the need for legal avenues they are pursuing frequently deny requests.101 And, like birth certificate amendments or corrections, court orders are not always given deference by courts across state lines.102 Thus, in spite of taking all medically indicated steps for

gender option, there are a growing number of examples where the gender marker has been removed and other information is used, such as the SEPTA passes in Philadelphia, SEPTA Fare Increases Take Effect Monday, July 1, SE. PA. TRANSP. AUTH. (June 27, 2013), http://www.septa.org/media/releases/2013/06- 27.html (“Gender stickers [have been] eliminated on all passes for transit and Regional Rail.”), and the New York City municipal ID. NYC, NEW YORK, NYC COUNCIL CODE ch. 1, § 17-761 (2014), available at http://legistar.council.nyc.gov/LegislationDetail.aspx?ID=1937607&GUID=DA36C81B-7498-49EB- 9581-A785349F4C2F&Options=&Search (establishing that municipal IDs do not require a gender marker). 98. See Spade, supra note 78, at 734 (“Many people are under the impression that everyone has a clear ‘legal gender’ on record with the government, and that changing ‘legal gender’ involves presenting some kind of evidence to a specific agency or institution in order to make a decisive and clear change to the new category.”). 99. See Jill Weiss, Transgender Identity, Textualism, and the Supreme Court: What is the “Plain Meaning” of “Sex” in Title VII of the Civil Rights Act of 1964?, 18 TEMP. POL. & CIV. RTS. L. REV. 573, 590–91 (2009) (“No court in the United States has ever ruled that a person became legally male or legally female for all purposes. Thus, it cannot be said [at this time] in any meaningful way that ‘I am now legally male,’ or ‘I am now legally female.’ One can truthfully say that a birth certificate, driver’s license, or passport says ‘M’ or ‘F,’ but that is not the same thing. One can, at most, say that ‘for X purpose, I am now legally male.’ Statements such as ‘I am now legally male’ are a statement of opinion, rather than a statement of law.”). 100. See Mottet, supra note 66, at 431–33. 101. See, e.g., In re Petition for Change of Birth Certificate, 22 N.E.3d 707, 707 (Ind. Ct. App. 2014) (discussing trial court decision denying individual’s petition to change his legal gender “based upon a[n erroneous] perceived lack of authority”); In re Harvey, No. CV-2011-1075, slip op. at 1, 5, 6 (Dist. Ct. Okla. Sept. 2, 2011) (denying a petition for a court order changing a transgender woman’s name based on a finding that a name change would be “fraudulent” because the individual would still have male DNA even after undergoing sex-change surgery), rev’d 293 P.3d 224 (Ct. App. Okla. 2012). Lambda Legal receives frequent calls from attorneys who have been denied motions to change gender markers by judges who rely on their own medical, scientific, or religious opinion that is not informed by contemporary medical standards or the law. 102. See Greenberg & Herald, supra note 36, at 843–55 (discussing how the refusal to acknowledge amendments to birth certificates from other states violates the Full Faith and Credit clause). 2015] Gender Identity Defines Sex 963 transition to affirm one’s true self—including living in accordance with one’s gender identity in all areas of life—and in spite of taking all legal steps possible to have one’s gender identity recognized by the state and federal government, a transgender person in the United States can still face the “legal horror”103 of a court refusing to acknowledge or validate who they are.104

II. LEGAL HORRORS: TRANSGENDER PEOPLE AS NON-HUMAN IN THE EYES OF THE LAW

This section will provide an overview of the “legal horrors” that transgender people have historically faced when courts are uneducated or resistant to understanding sex, instead relying upon outdated and, at times, punishingly creative methods of determining sex. Transgender litigants have paid the ultimate price, particularly in the marriage, custody, and discrimination contexts. In his article, “If I Follow the Rules, Will You Make Me a Man?”: Patterns in Transsexual Validation, Dr. Jamison Green, the current President of WPATH, details the ways the legal system has always limited who was considered a “person” in the eyes of the law.105

For centuries, rights, privileges, and status could accrue only to male bodies (in some cases in British, European, and American societies, only to Caucasian, light-skinned, male bodies.) [sic] Women and non-white men were chattels, servants, or little more

103. The term “horror” has often been used to describe cisgender people’s reactions to transgender people. See, e.g., Green, supra note 15, at 28 (discussing the so-called “moral and scientific horror of gender-variance”); id. at 71 (“The horror of transvestism . . . .” (quoting RICHARD A. POSNER, SEX AND REASON 25–26 (1992))); id. at 72 (“[T]he presence of judicial horror at the thought of castration and [the appearance of] the image of a female father [thrust] into social consciousness.” (alteration in original) (quoting Richard F. Storrow, Naming the Grotesque Body in the “Nascent Jurisprudence of Transsexualism,” 4 MICH. J. GENDER & L. 275, 279 (1997)) (internal quotation marks omitted)); see also Alex Sharpe, Transgender Marriage and the Legal Obligation to Disclose Gender History, 75 MOD. L. REV. 33, 42 (2012) (“This idea of transgender bodies, and particularly sexual congress with them, as evoking legal horror is an important one in understanding the gender history provision.”). Here, I attempt to reclaim the term by using it to describe transgender people’s experience of the legal system, particularly, the horror that transgender people face when the law strips them of their dignity and legal personhood. 104. For example, in In re Estate of Gardiner, J’Noel Gardiner’s birth certificate, driver’s license, passport, health documents, and records at two universities indicated that she was a female, yet the Kansas Supreme Court determined, for purposes of marriage, she was male. In re Estate of Gardiner, 42 P.3d 120, 123, 137 (Kan. 2002). 105. See Green, supra note 15, at 27 (discussing the history of laws “designed to control behavior” which had the effect of “criminaliz[ing] or circumbscrib[ing[ certain people”).

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than beasts of burden, and were frequently regarded as lacking the capacity to reason, even lacking souls.106

Dr. Green notes that to be a “person” in the eyes of the law, to obtain the rights, privilege, and status afforded by the law, transgender people must fall into one of the two categories of the legal binary gender system: male or female.107

[A]s is apparent in the case law evolution, there have been exceptional barriers to transsexual people who attempt to exercise their civil rights and responsibilities simply because their transsexual status renders them suspect, or outside the law to the extent that their altered or different bodies make them seem less than human.108

As Professors Julie Greenberg and Marybeth Herald note in their article, You Can’t Take it With You: Constitutional Consequences of Interstate Gender Identity Rulings, in limiting determinations of sex to these two categories, the U.S. judiciary is out-of-step with the latest medical understanding of sex and lags behind other countries in acknowledging and implementing a non-binary system.109 The courts have looked to history and precedent and have generally ignored or rejected the scientific information found in medical testimony that other countries have been acknowledging for years.110 “Medical testimony [is] crucial in shedding light” on the range

106. Id. at 24. “The Eugenics movement in Britain and in the U[nited] S[tates], as well as American miscegenation laws, attest to this.” Id. at 24 n.4. 107. See id. at 23 (“The status of transsexual people in the law has been dictated historically by a taxonomy of binary sex and gender which posits only male and females as valid and essential physical constructs, with specific social roles.”). 108. Id. at 32. 109. Greenberg & Herald, supra note 36, at 832–33, 838–39 (“Most jurisdictions outside of the United States have rejected the outdated tests used in earlier judicial decisions and have focused on the scientific literature and the importance of brain sex to the development of gender identity.”) (emphasis added); see Roy Austin, Response to We the People Petition on Non-Binary Genders, WE THE PEOPLE (last visited Apr. 14, 2015), https://petitions.whitehouse.gov/response/response-we-people-petition-non- binary-genders (declining to legally recognize genders outside of male-female binary and explaining that “proposals to change when and how gender is listed on official documents should be considered on a case-by-case basis by the affected federal and state agencies”). Many countries and cultures recognize more than two genders, for example, India, Pakistan, Nepal, New Zealand, Australia, Bangladesh, and Germany, Valentine Pasquesoone, 7 Countries Giving Transgender People Fundamental Rights the United States Still Won’t, IDENTITIES.MIC (Apr. 9, 2014), http://mic.com/articles/87149/7-countries- giving-transgender-people-fundamental-rights-the-u-s-still-won-t, and some Native American cultures. Walter L Williams, The “Two Spirit” People of Indigenous North America, THE GUARDIAN (Oct. 11, 2010), http://www.theguardian.com/music/2010/oct/11/two-spirit-people-north-america. 110. See Greenberg & Herald, supra note 36, at 833 (discussing how state courts have relied on dictionaries, “references to God, and references to older decisions that do not reflect the current 2015] Gender Identity Defines Sex 965 of human variation in sex and the fact that the transgender and intersex111 experience is part of human variation.112 However, “a need for consistency, in conjunction with law’s requirement to look to precedent and statutes for guidance, can compel judges to reduce complexity and even reject inconvenient new information.”113 As Dr. Green states, the result is that in the United States, “trans litigants remain at the mercy of individual judges who are free to exercise their personal biases as they interpret whatever laws they can find to apply to the facts at hand.”114 Even as they make strides inside mainstream culture,115 transgender people remain “strangers to the law.”116 When seeking legal recognition in the courts, transgender people “face the possibility of a systematic obliteration of their personal identity,”117 what Professor Taylor Flynn labels, “a legal shredding of self.”118 Transgender people have been dehumanized, have had core, intimate aspects of their selves legally erased and their bodies publicly dissected for purported function and

[scientific] understanding of sexual differentiation”); Green, supra note 15, at 32–33 (discussing legal “barriers” to transsexual people as evidenced in the case law). 111. See Intersex, COLLINS ENGLISH DICTIONARY, http://www.collinsdictionary.com/dictionary/ english/intersex (last visited Apr. 14, 2015) (defining “intersex” as “the condition of having characteristics intermediate between those of a male and a female”); see also What Is Intersex?, INTERSEX SOC’Y OF N. AM., http://www.isna.org/faq/what_is_intersex (last visited Apr. 14, 2015) (defining “intersex” as a condition “in which a person is born with a reproductive or sexual anatomy that doesn’t seem to fit the typical definitions of female or male”). The term “Disorder of Sexual Development” (“DSD”) also describes the conditions of genital ambiguity and has been used increasingly in medical and academic literature for scientific and ethical reasons. Joel Hutcheson et al., Disorders of Sexual Development, MEDSCAPE, http://emedicine.medscape.com/article/1015520- overview#showall (last updated Nov. 12, 2014). This Article, however, exclusively uses the term “intersex” to describe this phenomenon. 112. Green, supra note 15, at 64. 113. Id. at 61; see In re Marriage of Kantaras v. Kantaras, Case No. 98-5375CA, at 535 (Fla. Cir. Ct. Feb. 21, 2003), available at http://www.transgenderlaw.org/cases/kantarasopinion.pdf. 114. Green, supra note 15, at 64–65; see, e.g., In re Harvey, No. CV-2011-1075, slip op. at 1, 5, 6 (Dist. Ct. Okla. Sept. 2, 2011) (denying name change for transgender woman based on a finding that a name change would be “fraudulent” because the individual would still have male DNA even after undergoing sex-change surgery). 115. See, e.g., Katy Steinmetz, Laverne Cox Talks to TIME About the Transgender Movement, TIME (May 29, 2014), http://time.com/132769/transgender-orange-is-the-new-black-laverne-cox- interview/. 116. Abigail W. Lloyd, Defining the Human: Are Transgender People Strangers to the Law?, 20 BERKELEY J. GENDER L. & JUST. 150, 150 (2005); see, e.g., Green, supra note 15, at 56 (“‘The words “sex,” “male,” and “female” in everyday understanding do not encompass transsexuals.’” (quoting In re Estate of Gardiner, 42 P.3d 120, 135 (Kan. 2002))). 117. Taylor Flynn, The Ties that (Don’t) Bind: Transgender Family Law and the Unmaking of Families, in TRANSGENDER RIGHTS 32, 32 (Paisley Currah et al. eds., 2006). 118. Id.

966 Vermont Law Review [Vol. 39:943 appearance.119 Transgender people have been judged defiant and worthy of punishment,120 immoral,121 fraudulent,122 mentally ill,123 delusional,124 medically wrong,125 or imaginary/nonexistent.126 Behind the “legal

119. See id. at 37 (“In determining legal sex, courts typically use an approach that I call a ‘body- parts’ checklist: the court meticulously scrutinizes a litigant’s sexual anatomy and compares its various features to a presumed norm.”); Green, supra note 15, at 64–65 (explaining that in American cases courts “expose the genitals, surgical status, or sexual capacity of . . . transsexual subjects). 120. See, e.g., Cynthia Lee & Peter Kwan, The Trans Panic Defense: Masculinity, Heteronormativity, and the Murder of Transgender Women, 66 HASTINGS L.J. 77, 83–84, 111–13 (2014) (discussing how defendants who murder transgender women and assert a “trans panic” defense might have been motivated by “extreme discomfort with gender noncomformity” and murdered the victim as punishment for “transgress[ing] gender norms”). 121. See, e.g., Oiler v. Winn-Dixie La., Inc., No. Civ. A. 00-3114, 2002 WL 31098541, at *5 (E.D. La. Sept. 16, 2002) (“The plaintiff was terminated because he is a man with a sexual or gender identity disorder who, in order to publicly disguise himself as a woman, wears women's clothing, shoes, underwear, breast prostheses, wigs, make-up, and nail polish, pretends to be a woman, and publicly identifies himself as a woman named ‘Donna.’”). But see Doe v. McConn, 489 F. Supp. 76, 79 (S.D. Tex. 1980) (holding city ordinance, which made it “unlawful for any person to appear on any public street, sidewalk, alley, or other public thoroughfare dressed with the designed intent to disguise his or her true sex as that of the opposite sex” and did not allow an “exception or defense under the ordinance for transsexuals, including those under a doctor's care,” was unconstitutional). 122. Greenberg & Herald, supra note 36, at 867–68 (discussing cases denying petitions to change sex on IDs because of fraud concerns); Flynn, supra note 117, at 41 (discussing fraud as grounds for divorce in trans marriage cases where it is claimed that individuals “defrauded their spouses as to their ‘real’ sex”); see, e.g., In re Harvey, No. CV-2011-1075, slip op. at 6 (Dist. Ct. Okla. Sept. 2, 2011) (“[B]ased on . . . the DNA evidence, a sex change cannot make a man a woman or a woman a man . . . . To grant a name change in this case would be to assist that which is fraudulent.”), rev’d 293 P.3d 224 (Ct. App. Okla. 2012). 123. See Greenberg & Herald, supra note 36, at 865–66 (explaining how states have justified refusing to treat transgender individuals “as their self-identified sex” citing a “desire to discourage ‘psychologically ill persons’ from engaging in sex changes” (quoting Anonymous v. Weiner, 270 N.Y.S.2d 319, 322 (Sup. Ct. 1966)). In Anonymous v. Weiner, the Board of Health consulted with the Committee on Public Health of the New York Academy of Medicine and based its denial of the petition to change a birth certificate because “male-to-female transsexuals are still chromosomally males while ostensibly females; [and] it is questionable whether laws and records such as the birth certificate should be changed and thereby used as a means to help psychologically ill persons in their social adaptation.” Weiner, 270 N.Y.S.2d at 322. 124. See, e.g., Hispanic AIDS Forum v. Estate of Bruno, 792 N.Y.S.2d 43, 46 (App. Div. 2005) (explaining how other tenants complained about “‘men who think they’re women . . . using the women’s bathroom’” (quoting Amended Verified Complaint, Hispanic AIDS Forum v. Estate of Bruno, 792 N.Y.S.2d 43 (App. Div. 2005) (No. 112428/2001))). 125. See, e.g., Corbett v. Corbett, (No.1), [1971] P. 83, 107–8 (Eng.) (issuing decree of nullity based on incapacity of wife to consummate intercourse because, in the judge’s opinion, “intercourse, using the completely artificial cavity . . . , can [not] possibly be described . . . as ‘ordinary and complete intercourse’”). 126. For example, in Littleton v. Prange, “Judge Hardberger states ‘through surgery and hormones, a transsexual male can be made to look like a woman.’” In re Marriage of Kantaras v. Kantaras, Case No. 98-5375CA, at 610 (Fla. Cir. Ct. Feb. 21, 2003), available at http://www.transgenderlaw.org/cases/kantarasopinion.pdf (quoting Littleton v. Prange, 9 S.W.3d 223, 230 (Tex. App. 1999)). However, “[t]hat is the departure point. He does not accept that female genitalia and breasts alone constitute a reconstituted female. He wants the male reconstruct to provide a ‘womb, 2015] Gender Identity Defines Sex 967 horror”127 of courts’ inability to accept and validate transgender people as full human beings is the courts’ failure to embrace the medical understanding of sex, which gives primacy to gender identity when weighing the factors of sex.

A. Courts Have Used Dehumanizing and Inconsistent Methods of Determining Sex That Are Contrary to Medical Authority

1. Marriage/Custody Context

In the past, courts have used a variety of approaches to determine a person’s legal sex that have been inconsistent with, and at times, contrary to the latest understandings of medical science—with harmful and degrading results.128 In the marriage context, for example, courts have used an “essentialist approach [where] sex is immutable and fixed at birth,” rather than multifaceted.129 Using this fixed-determination theory,130 courts have concluded that sex is determined by a person’s genitals, or sometimes chromosomes, and that no matter what one does to one’s body,131 one can never alter one’s originally assigned sex.132

cervix and ovaries.’ Anything short of that is a male ‘look alike.’ He also wants the chromosomes to change from XY to XX. Anything short of these changes is just ‘make believe.’” Id. (emphasis added) (quoting Littleton, 9 S.W.3d at 230). The idea that transgender people do not exist is reflected in current social dialogue, for example the author’s favorite comment on a video about transgender voting rights: “I don’t believe transgender people exist. They are a myth, like unicorns.” What’s It Like to Vote as a Transgender Person?, DAILY BEAST (Nov. 2, 2012), http://www.thedailybeast.com/videos/2012/11/02/ what-s-it-like-to-vote-as-a-transgender-person.html. 127. See supra note 103. 128. Greenberg & Herald, supra note 36, at 832–33. 129. Flynn, supra note 117, at 33. 130. Green classifies this line of case law as the “determinism” strain and explains that the “[determinism] strain privileges the opinions of observers and assumptions about biological ‘normalcy’” and “seek[s] evidence of physical proof of sex and gender”. Green, supra note 15, at 61–63. 131. See Greenberg & Herald, supra note 36, at 840–41; see, e.g., Littleton v. Prange, 9 S.W.3d 223, 231 (Tex. App. 1999) (“Some physicians would consider Christie a female; other physicians would consider her still a male. Her female anatomy, however, is all man-made. The body that Christie inhabits is a male body in all aspects other than what the physicians have supplied.”). 132. See Flynn, supra note 117, at 37 (discussing how courts generally use a “‘body-parts’ checklist” to determine an individual’s legal sex and “[i]n adhering to the view of sex as genitalia-at- birth, the majority of courts simultaneously ‘de-sex’ and hypersexualize trans men and women”); Greenberg & Herald, supra note 36, at 832–36 (discussing case law, beginning with Corbett, that concludes “an individual’s ‘true sex’” is determined by “chromosomal pattern, gonadal sex, and genitalia” (footnote omitted)).

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The defining case for the notion that sex is fixed at birth was the 1970 English case, Corbett v. Corbett.133 In Corbett, the court would not consider the gender identity, or even medical interventions, of the transgender litigant, April Ashley Corbett.134 Instead, the court used dehumanizing language to refer to Ms. Corbett’s body, finding that surgical intervention created “artificial” sex attributes.135 Even though the court was presented with expert medical testimony as to the nature of transsexualism, including testimony about how transsexualism can be considered an intersex condition and the existence of a “male or female brain,” the court determined “that the biological sexual constitution of an individual is fixed at birth (at the latest), and cannot be changed, either by the natural development of organs of the opposite sex, or by medical or surgical means.”136 Though U.S. courts are not bound by court decisions of other countries, they relied almost without exception on the Corbett reasoning and other “determinism” approaches,137 rather than the scientific literature other countries were beginning to consider.138 The U.S. courts embraced what

133. Corbett v. Corbett (No.1), [1971] P. 83, 104 (U.K.). For a discussion of the Corbett decision and its impact, see Green, supra note 15, at 37–41, and Greenberg & Herald, supra note 36, at 833–35. 134. Corbett, [1971] P. at 104. In an interview, Ms. Corbett described her experience of aligning her body with her gender identity: “I hope that everybody at one point in their lives knows the happiness I felt the day after the operation because suddenly my whole mind was in line with my body, and the joy I felt was unbelievable. And to this day I still feel that joy.” LiverpoolGayScene.com, An Evening With April Ashley at the Southbank Centre, Part 1 of 2, YOUTUBE (Apr. 30, 2009), https://www.youtube.com/ watch?v=lJkXfawJRTk. 135. Corbett, [1971] P. at 107. 136. Id. at 104. 137. Green, supra note 15, at 64; Greenberg & Herald, supra note 36, at 833–36; see, e.g., Littleton v. Prange, 9 S.W.3d 223, 226–231 (Tex. App. 1999) (discussing Corbett and cases following Corbett, and holding that transgender woman was a male “as a matter of law”); In re Marriage of Kantaras v. Kantaras, Case No. 98-5375CA, at 587 (Fla. Cir. Ct. Feb. 21, 2003), available at http:// www.transgenderlaw.org/cases/kantarasopinion.pdf (“[In Lim Ying v. Hiok Kian Ming Erie, the judge] chose to follow Corbett, and he said: . . . ‘A person biologically a female with an artificial penis, after surgery and psychologically a male, must, for purposes of contracting a monogamous marriage of one man and one woman, . . . be as a “woman.”’” (quoting Lim Ying v. Hiok Kian Ming Erie, 1 SLR 184, 194 (1992))). But see M.T. v. J.T., 355 A.2d 204, 210–11 (N.J. Super. Ct. App. Div. 1976) (“If such sex reassignment surgery is successful and the postoperative transsexual is . . . thereby possessed of the full capacity to function sexually as a male or female, as the case may be, we perceive no legal barrier, cognizable social taboo, or reason grounded in public policy to prevent that person’s identification at least for purposes of marriage to the sex finally indicated.”); Julie Greenberg, Legal Aspects of Gender Assignment, 13 ENDOCRINOLOGIST 277, 281 (2003) (discussing the 1997 decision Vecchione v Vecchione (no written opinion) where California trial “court held that a postoperative transsexual acquires his postoperative sex for purposes of marriage”). 138. During the same time, other courts affirmed the emerging scientific model in Australia, New Zealand, and the European Court of Human Rights while the United States lagged behind. 2015] Gender Identity Defines Sex 969

Greenberg and Herald call a “kaleidoscope of approaches”139 for determining sex, including the ability to have children,140 religious rhetoric,141 “public policy against same-sex marriages,”142 the plain meaning rule,143 chromosomes,144 and Webster’s dictionary,145 all of which robbed transgender people of their dignity, and at times their families.146 In England, Corbett’s legacy lasted an unfortunate thirty-five years, until in 2004, Parliament adopted the Gender Recognition Act. This law gives credence to gender identity for all purposes of determining sex.147 The Corbett reasoning, however, took hold in the United States, and its impact continues to linger in some U.S. courts, even though it has now been completely overruled in its country of origin. Noting the impact of this case and its legacy in the United States, Dr. Green writes:

This desire to pin, cement, or stabilize sex, based on a narrow view of human experience has damaged the lives of countless transsexual and other sex and gender-variant people by denying

Greenberg & Herald, supra note 36, at 833; see also Greenberg, Roads Less Traveled, supra note 17, 65–66. 139. Greenberg & Herald, supra note 36, at 822. 140. Id. (citing In re Estate of Gardiner, 42 P.3d 120, 135 (Kan. 2002)). The Gardiner court, concluded that “‘[f]emale’ is defined as ‘designating or of the sex that produces ova and bears offspring: opposed to male.’” Gardiner, 42 P.3d at 135; see also B. v. B., 355 N.Y.S.2d 712, 717 (Sup. Ct. 1974) (focusing on a trans person’s inability to beget offspring as proper justification to find marriage invalid). 141. Greenberg & Herald, supra note 36, at 822 & n.6 (“[C]an a physician change the gender of a person with a scalpel, drugs and counseling or is a person’s gender immutably fixed by our Creator at birth?” (quoting Littleton v. Prange, 9 S.W.3d 223, 224 (Tex. App. 1999))). 142. Id. at 865–66 (citing In re Nash, Nos. 2002-T-0149, 2002-T-0179, 2003 WL 23097095, at *6 (Ohio Ct. App. 2003)). 143. Id. at 840–41 (citing Gardiner, 42 P.3d at 135; Nash, 2003 WL 23097095, at *6). The Gardiner court, after discussing dictionary definitions of “sex,” “male,” and “female,” concluded that “the words . . . in everyday understanding do not encompass transsexuals.” Gardiner, 42 P.3d at 135. 144. Greenberg & Herald, supra note 36, at 833–34 (explaining that state courts initially relied on Corbett which determined a person’s sex based on the person’s chromosomes). For example, Greenberg & Herald cite to In re Ladrach, which held “that a post-operative male-to-female transsex person still retained male chromosomes and therefore could not marry in the female role because she was still legally a male.” Id. at 834 n.73 (citing In re Ladrach, 513 N.E.2d 828, 832 (Ohio Prob. 1987)). 145. Id. at 833; see, e.g., In re Marriage of Kantaras v. Kantaras, No. 98-5375CA, at 667–69 (Fla. Cir. Ct. Feb. 21, 2003), available at http://www.transgenderlaw.org/cases/kantarasopinion.pdf. 146. Courts used degrading and de-humanizing language to refer to transgender people’s bodies, all of which is public record. See, e.g., Kantaras, No. 98-5375CA, at 558 (discussing Corbett’s conclusion that transsexual people’s sexual organs are incapable of “ordinary and complete” sexual intercourse and are “the reverse of ordinary, and in no sense ‘natural’”); Gardiner, 42 P.3d at 135 (“A male-to-female post-operative transsexual does not fit the definition of a female.”); Littleton v. Prange, 9 S.W.3d 223, 231 (Tex. App. 1999) (“The body that Christie inhabits is a male body in all aspects other than what the physicians have supplied.”). 147. Greenberg & Herald, supra note 36, at 838–39 (citing Gender Recognition Act, (2004) c. 7 (Eng.)).

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them any possibility of personal development, self-discovery, or access to medical technologies that might permit them to live full lives.148

Interestingly, Greenberg and Herald point out that the lower courts in Kantaras v. Kantaras (Florida trial court)149 and In re Estate of Gardiner (Kansas Court of Appeals)150 “conducted a thorough review of the [latest] medical and legal literature on transsexualism,”151 which included “well- substantiated medical information about the diversity of biological variations in sex.”152 Specifically, the courts were offered evidence “refuting the rigid binary of exclusive male and female categories” that “can be objectively detected by observation at the moment of birth . . . and the assumption that chromosomes always comport with genital configuration, both significant premises in the Corbett reasoning.”153 After reviewing the evidence, the Gardiner court “rejected the earlier decisions as ‘a rigid and simplistic approach to issues that are far more complex than addressed.’”154 However, the court of appeals reversed the trial court’s decision, which had relied entirely upon the record, and instead relied upon Webster’s New Twentieth Century Dictionary and Black’s Law Dictionary155 to define “male” as “designating or of the sex that fertilizes the ovum and begets offspring: opposed to female” and “female” as “designating or of the sex that produces ova and bears offspring: opposed to male.”156 The court of appeals stated: “The plain, ordinary meaning of ‘persons of the opposite sex’ contemplates a biological man and a biological woman and not persons who are experiencing gender dysphoria.”157

148. Green, supra note 15, at 40–41. 149. Kantaras, No. 98-5375CA. 150. In re Estate of Gardiner, 22 P.3d 1086 (Ct. App. Kan. 2001). 151. Greenberg & Herald, supra note 36, at 840; see Kantaras, No. 98-5375CA, at 266–97 (discussing testimony of medical expert Dr. Bockting and his expert opinion that “‘there are other variations in between (male and female) – some of them will result in ambiguous genitalia at birth and others go undetected until maybe some of them may come out in puberty’”). Importantly, the court in Gardiner relied upon Greenberg’s article, Defining Male and Female: Intersexuality and the Collision Between Law and Biology. Gardiner, 22 P.3d at 1094–1100 (Ct. App. Kan. 2001) (quoting Greenberg, Defining Male and Female, supra note 37, at 278–92). 152. Green, supra note 15, at 54–55 (describing Greenberg article relied on in Gardiner). 153. Id. 154. Greenberg & Herald, supra note 36, at 840 (quoting Gardiner, 22 P.3d at 1110). 155. See In re Estate of Gardiner, 42 P.3d 120, 135 (Kan. 2002). 156. Greenberg & Herald, supra note 37, at 841 (quoting Gardiner, 42 P.3d at 135 (quoting WEBSTER’S NEW TWENTIETH CENTURY DICTIONARY (2d. ed. 1970))) (internal quotation marks omitted). 157. Gardiner, 42 P.3d at 135 (emphasis added). 2015] Gender Identity Defines Sex 971

Similarly in Kantaras, the lower court was presented with an array of evidence, including: expert testimony regarding gender identity as innate, fixed, and the most critical factor that contributes to sex determination, as opposed to genital characteristics; expert testimony of the treatment for gender dysphoria according to the established Standards of Care; expert testimony that “it would not be medically ethical to require specific surgical procedures to recognize male social status”; and additional testimony that “the steps of legally changing one’s name and birth certificate are indicative of the medical and social authenticity of a [gender] change which [courts] should recognize as valid.”158 During the three-week custody trial, which was broadcast on Court TV, the court applied what Flynn calls a “‘body- parts’ checklist” to “meticulously scrutinize[] a litigant’s sexual anatomy and compare[] its various features to a presumed [cisgender] norm.”159 The court went into intimate detail about Mr. Kantaras’s body, evaluating whether his penis should be deemed sufficient to enable penetration and asking him to describe his body, how he has sex, and how he urinates,160 all for a marriage validity and custody determination. The lower court gave weight to the medical evidence and found that Mr. Kantaras was sufficiently male for purposes of marriage in Florida, but the Florida Supreme Court reversed:

We agree with the Kansas, Ohio, and Texas courts in their understanding of the common meaning of male and female, as those terms are used statutorily, to refer to immutable traits determined at birth. Therefore, we also conclude that the trial court erred by declaring that Michael is male for the purpose of the marriage statutes. Whether advances in medical science support a change in the meaning commonly attributed to the terms male and female as they are used in the Florida marriage statutes is a question that raises issues of public policy that should be addressed by the legislature.161

158. Green, supra note 15, at 78–79; see also Kantaras, No. 98-5375CA, at 266–97. According to Green, “[Kantaras] is important here because it laid the groundwork for progress by consolidating all the past arguments and focusing on contemporary medical opinion.” Green, supra note 16, at 57. 159. Flynn, supra note 117, at 37; see also Kantaras, No. 98-5375CA, 51–55. Green states that, “Kantaras is a particularly rich case, not for its persuasive decisions, but for the unusual cultural setting imposed by the media presence and by the influence of fundamentalist religion in the appeal process.” Green, supra note 15, at 57. 160. Flynn, supra note 117, at 38 (discussing how Kantaras trial “was devoted almost entirely to a single issue: whether Michael has a penis deemed sufficient for penetration”); see also Kantaras, No. 98-5375CA, at 51–55. 161. Kantaras v. Kantaras, 884 So. 2d 155, 161 (Dist. Ct. App. Fla. 2004).

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In the marriage and custody context, transgender litigants often must undergo a barrage of intrusive inquiries about their bodies, their medical histories and their sex lives in cases where these questions have nothing to do with their parenting ability.162 The courts, using cisgender bodies as a presumed norm, de-humanize transgender and intersex bodies.163 “Trans women and men thus must participate in a system that robs them of dignity and privacy to protect the most precious and personal aspects of their lives.”164 Similarly, when seeking protections under discrimination laws, particularly in the workplace context, courts have historically treated transgender litigants’ claims as somehow separate and undeserving of the law’s promises of formal justice.

2. Discrimination Context

Although it may seem obvious that an employer’s decision to fire an employee based on gender transition could not be anything other than discrimination based on sex,165 early judicial opinions involving Title VII of the federal Civil Rights Act of 1964 excluded transgender people from the concept of “sex.” Courts in the 1970s and 1980s deemed transgender people as legally nonexistent—not a man or a woman.166 Courts repeatedly

162. See, e.g., Flynn, supra note 117, at 38 (“The Kantaras court, in essence, was asking Michael whether he was ‘man enough’ to be a father to his children.”); E-mail from Michael Kantaras to M. Dru Levasseur, Transgender Rights Project Nat’l Dir., Lambda Legal (Jan. 25, 2015) (on file with author (“The only reason I was able to endure that horrendous court proceeding was because I loved my kids and I didn’t want to lose them. I couldn’t give up on them.”). 163. See JULIA SERANO, WHIPPING GIRL 13 (2007) (“While often different in practice, cissexism, transphobia, and homophobia are all rooted in oppositional sexism, which is the belief that female and male are rigid, mutually exclusive categories, each possessing a unique and nonoverlapping set of attributes, aptitudes, abilities, and desires. Oppositional sexists attempt to punish or dismiss those of us who fall outside of gender or sexual norms because our existence threatens the idea that women and men are ‘opposite’ sexes.”); see also Noah Lewis, Making Cisness Visible: Naming the Hidden Cis Ideals that Shape Trans Lives, Presentation at the Eighth Annual Transgender Lives Conference (Apr. 26, 2014) (PowerPoint on file with author) (“Cis[gender] supremacy [is a p]olitical, economic and cultural system in which cis[gender] people control power and material resources, conscious and unconscious ideas of cis[gender] superiority and entitlement are widespread, and relations of cis[gender] dominance and trans subordination are daily reenacted across a broad array of institutions and social settings.”). 164. Flynn, supra note 117, at 38. 165. Cf. Glenn v. Brumby, 663 F.3d 1312, 1316 (11th Cir. 2011) (“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.’” (alteration in original) (quoting Ilona M. Turner, Sex Stereotyping Per Se: Transgender Employees and Title VII, 95 CALIF. L. REV. 561, 563 (2007))). 166. See, e.g., Ulane v. E. Airlines, Inc., 742 F.2d 1081, 1085 (7th Cir. 1984) (reasoning that statute’s legislative history “clearly indicates that Congress never considered nor intended that [Title VII] apply to anything other than the traditional concept of sex”), rev’g 581 F. Supp. 821 (N.D. Ill. 2015] Gender Identity Defines Sex 973 rejected claims of sex discrimination by transgender people on the grounds that “Congress had a narrow view of sex in mind” when it added sex to Title VII and it did not “believe[] that transsexuals should enjoy the protection of Title VII.”167 In doing so, courts revealed a deep lack of understanding of who transgender people are, dismissing the experience as a choice or personal belief, and referring to the litigants’ bodies as “surgically altered” for appearance’s sake.168 For example, in Holloway v. Arthur Anderson & Co., the Ninth Circuit held that Holloway, a transgender woman who was fired when she transitioned on the job, was not discriminated against “because she is male or female, but rather because she is a transsexual who chose to change her sex.”169 Similarly, in Ulane v. Eastern Airlines, Inc., the Seventh Circuit held that a transgender woman, fired from her job as an airline pilot because she transitioned, failed to state a viable claim of sex discrimination under Title VII.170 In dismissing her claim, the court provided a graphic example of the level of disrespect toward transgender plaintiffs bringing Title VII claims at the time:

Ulane is entitled to any personal belief about her sexual identity she desires. . . . But even if one believes that a woman can be so easily created from what remains of a man, that does not decide this case. . . . [I]f Eastern did discriminate against Ulane, it was not because she is female, but because Ulane is a transsexual—a biological male who takes female hormones, cross-dresses, and has surgically altered parts of her body to make it appear to be female.171

1983); Sommers v. Budget Mktg., Inc., 667 F.2d 748, 750 (8th Cir. 1982) (“[E]ven medical experts disagree as to whether Sommers is properly classified as male or female.”); cf. Green, supra note 15, at 71 (“‘Most Americans do not consider, say, a male transsexual, even following conversion, to be a woman.’ . . . The fact that the effort is ‘painful, time-consuming, expensive—and irreversible’ mitigates transsexualism somehow, but does not fully redeem it, nor does it entitle the transsexual body to the status or privileges granted to either a female or a male body.” (quoting POSNER, supra note 103, at 27)). 167. Ulane, 742 F.2d at 1086 (emphasis added); see also Sommers, 667 F.2d at 750 (noting that there is no evidence that transsexuals should be included in Title VII claims in the “legislative history”); Holloway v. Arthur Andersen & Co., 566 F.2d 659, 662 (9th Cir. 1977) (holding that Title VII does not protect against transgender employment discrimination because “Congress had only the traditional notions of ‘sex’ in mind” when passing the law). 168. See, e.g., Ulane, 742. F.2d at 1087 (“Ulane is a transsexual—a biological male who takes female hormones, cross-dresses, and has surgically altered parts of her body to make it appear to be female.” (footnote omitted)); Holloway, 566 F.2d at 664 (referring to the process of “sex change surgery” as “a transsexual individual’s decision”). 169. Holloway, 566 F.2d at 664 (emphasis added). 170. Ulane, 742 F.2d at 1087. 171. Id. at 1087.

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Just as lower courts in the marriage and custody cases tended to pay deference to medical experts’ views of sex and find for the transgender litigant, only to be overturned by the appeals court, the district court in Ulane had held:

[S]ex is not a cut-and-dried matter of chromosomes, and . . . that the term, “sex,” as used in any scientific sense and as used in the statute can be and should be reasonably interpreted to include among its denotations the question of sexual identity and that, therefore, transsexuals are protected by Title VII.172

The U.S. Supreme Court’s expansion of the interpretation of the term “sex” in both the 1989 Price Waterhouse decision (sex stereotyping)173 and the 1998 Oncale decision (same-sex sexual harassment)174 extended the reach of Title VII and state nondiscrimination laws for transgender people, as did the erosion of the Court’s distinction between the terms “sex” and “gender.”175 The exclusion of transgender people from the meaning of sex under Title VII was rooted in a distinction between sex as a fundamental “biological truth” and gender as a psychological, expressive self-identity.176 A handful of courts recognized that sex was, perhaps, not clear-cut, easy to measure, or somehow distinct from self-identity.177 But, in the

172. Ulane v. E. Airlines, Inc., 581 F. Supp. 821, 825 (N.D. Ill. 1983), rev’d, 742 F.2d 1081 (1984). 173. See Price Waterhouse v. Hopkins, 490 U.S. 228, 250 (1989) (collapsing the distinction between sex and gender for purposes of Title VII). 174. See Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 79 (1998) (“[M]ale-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But 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.”). 175. Mottet, supra note 66, at 387 n.44 (“[T]he Supreme Court uses both terms [sex and gender] in its jurisprudence relating to women’s constitutional rights and Congress also has used both sex and gender in different civil rights statutes, while not intending a different meaning.”); see also Schwenk v. Hartford, 204 F.3d 1187, 1202 (9th Cir. 2000) (“Indeed, for purposes of [Title VII and the Gender Motivated Violence Act], the terms ‘sex’ and ‘gender’ have become interchangeable.”); Mary Anne C. Case, Disaggregating Gender from Sex and Sexual Orientation: The Effeminate Man in the Law and Feminist Jurisprudence, 105 YALE L.J. 1, 4 (1995) (explaining that Title VII, if applied correctly, protects from discrimination based on both sex and gender identity). For the history regarding Supreme Court Justice Ruth Bader Ginsburg, see Green, supra note 15, at 67–68. 176. For an overview of the practical consequences and harms of separating sex and gender, see Weiss, supra note 99, at 610–14, and Katherine M. Franke, The Central Mistake of Sex Discrimination Law: The Disaggregation of Sex from Gender, 144 U. PA. L. REV. 1, 1–4 (1995). According to Weiss, “[l]aw cannot effectively battle sex discrimination while it persists in privileging biological anatomy, and it is the insistence that gender is unrelated to sex that permits that privileging.” Weiss, supra note 99, at 613. 177. See cases cited supra note 32. 2015] Gender Identity Defines Sex 975 discrimination context, the conflation of “sex” and “gender” allowed courts leeway to generally avoid examining what sex means where sex could simply be seen as the motivating factor behind the unlawful conduct.178 Transgender people started to “enjoy”179 protections in the workplace under Title VII in 2004, when the Sixth Circuit, in Smith overruled a trial court decision to dismiss the complaint of a transgender woman who claimed discrimination based on failing to conform to sex stereotypes.180 The Sixth Circuit relied on Price Waterhouse, which held that an employee had an actionable sex discrimination claim under Title VII when her employer refused to propose her for partnership based on a perceived failure to conform to sex stereotypes, and “noted that ‘ . . . a label such as ‘transsexual,’ is not fatal to a sex discrimination claim.’”181 Although the Price Waterhouse sex stereotyping theory was successful in providing transgender litigants protection under Title VII where they could prove discrimination for failure to conform to sex stereotypes, it was

178. See Schwenk, 204 F.3d at 1201–02 (applying the Title VII framework of “sex” to the definition of “gender” in the Gender Motivated Violence Act and stating “what matters, for purposes of . . . the Price Waterhouse analysis, is that in the mind of the perpetrator the discrimination is related to the sex of the victim”); Sharon M. McGowan, Working with Clients to Develop Compatible Visions of What It Means to “Win” a Case: Reflections on Schroer v. Billington, HARV. C.R.-C.L. L. REV. 205, 229 (2011) (analyzing Schroer in an attempt to differentiate between “sex” and “gender”). 179. See Ulane v. E. Airlines, Inc., 742 F.2d 1081, 1086 (7th Cir. 1984) (“If Congress believes that transsexuals should enjoy the protection of Title VII, it may so provide.” (emphasis added)). 180. See McGowan, supra note 178, at 210 (citing Smith v. City of Salem, 378 F.3d 566, 575 (6th Cir. 2004)). Following Smith, a number of courts held that transgender individuals are protected by anti-discrimination statutes. See, e.g., Barnes v. City of Cincinnati, 401 F.3d 729, 737–38 (6th Cir. 2005) (holding that transgender police officer was member of protected class by alleging discrimination against plaintiff for failure to conform to sex stereotypes); Rosa v. Park W. Bank & Trust Co., 214 F.3d 213, 215–16 (1st Cir. 2000) (holding male in traditionally feminine attire could bring action against bank that refused him service because of his attire under antidiscrimination statutes based on sex discrimination); Creed v. Family Express Corp., No. 3:06-CV-465RM, 2009 WL 35237, at *6 (N.D. Ind. Jan. 5, 2009) (“‘Sex stereotyping based on a person’s gender non-conforming behavior is impermissible discrimination, irrespective of the cause of that behavior. . . .’” (quoting Smith, 378 F.3d at 575)); Lopez v. River Oaks Imaging & Diagnostics Grp., Inc. 542 F. Supp. 2d 653, 660 (S.D. Tex. 2008) (“Lopez’s ‘transsexuality is not a bar to her sex stereotyping claim. Title VII is violated when an employer discriminates against any employee, transsexual or not, because he or she has failed to act or appear sufficiently masculine or feminine enough for an employer.’” (citing Schroer v. Billington, 525 F.Supp.2d 58, 63 (D.D.C. 2007)); Schroer v. Billington, 424 F. Supp. 2d 203 (D.D.C. 2006) (denying a motion to dismiss Schroer’s claim that the Library of Congress refused to hire her based on her sexual identity); Mitchell v. Axcan Scandipharm, Inc. No. 05-243, 2006 WL 456173, at *2 (W.D. Pa. Feb. 17, 2006) (“Having included facts showing that his failure to conform to sex stereotypes of how a man should look and behave was the catalyst behind defendant’s actions, plaintiff has sufficiently pleaded claims of gender discrimination.”); Tronetti v. TLC HealthNet Lakeshore Hosp., No. 03-CV- 0375E(SC), 2003 WL 22757935, at *4 (W.D.N.Y. Sept. 26, 2003) (holding Tronetti’s claim that was discriminated against for not acting like a man was properly asserted under Title VII). 181. McGowan, supra note 178, at 210–11 (quoting Smith, 378 F.3d at 575 (citing Price Waterhouse v. Hopkins, 490 U.S. 228, 250–51)).

976 Vermont Law Review [Vol. 39:943 less effective where a transgender person was gender-conforming and the adverse employment action was based solely on the idea of gender transition itself, as in the 2008 case Schroer v. Billington.182 In Schroer, the court recognized that discrimination against individuals because they have transitioned from one gender to another is just as much sex discrimination as it would be religious discrimination to penalize someone for converting from one religion to another.183 The “conversion theory” of Schroer helped expand the scope of Title VII protections so that transgender litigants could fight discrimination where gender transition itself was targeted. Then, in 2011, the Eleventh Circuit applied Title VII sex stereotyping and conversion theories to an equal protection claim on behalf of a transgender woman fired after informing her employer, the Georgia State Assembly, that she intended to transition.184 Tying it all together, the court explained: “A person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes . . . . Accordingly, discrimination against a transgender individual because of her gender-nonconformity is sex discrimination, whether it’s described as being on the basis of sex or gender.”185 The following year, the Equal Employment Opportunity Commission (“EEOC”)

182. In her article, McGowan, the attorney for the transgender litigant in Schroer, discusses the tension of weighing the need to respect her client’s identity as a transgender woman against the need to bring a strong claim under Title VII where the case law prior to that point was generally limited to sex stereotyping claims. See McGowan, supra note 178, at 205, 212 (quoting Diane Schroer, saying, “‘I haven’t gone through all this only to have a court vindicate my rights as a gender non-conforming man’” and explaining “[i]t felt as though we would be disavowing Ms. Schroer’s identity as a woman, and accepting society’s discriminatory conception that transgender women are just men who want to dress as women”). 183. Schroer, 424 F. Supp. 2d at 212 (“[D]iscrimination against transsexuals because they are transsexuals is ‘literally’ discrimination ‘because of . . . sex.’” (quoting Ulane v. E. Airlines, Inc., 581 F. Supp. 821, 825 (N.D. Ill. 1983)); see also Rentos v. OCE-Office Sys., No. 95 CIV. 7908 LAP., 1996 WL 737215, at *1–2, *8–9 (S.D.N.Y. Dec. 24, 1996) (citing Amended Complaint at ¶¶ 6–19, Rentos v. OCE-Office Sys., No. 95 CIV. 7908 LAP., 1996 WL 737215 (S.D.N.Y. Dec. 24, 1996); Maffei v. Kolaeton Indus., Inc., 626 N.Y.S.2d 391 (Sup. Ct. 1995)) (finding that plaintiff had adequately alleged a protected status under New York employment discrimination law when she suffered adverse employment actions as a result of her transition from male to female); Maffei v. Kolaeton Indus., 626 N.Y.S.2d 391, 396 (N.Y. Sup. Ct. 1995) (“[T]he creation of a hostile work environment as a result of derogatory comments relating to the fact that as a result of an operation an employee changed his or her sexual status, creates discrimination based on ‘sex,’ just as would comments based on the secondary sexual characteristics of a person.”). 184. Glenn v. Brumby, 663 F.3d 1312, 1314, 1316–17 (11th Cir. 2011). 185. Id. at 1316–17 (“[T]he very acts that define transgender people as transgender are those that contradict stereotypes of gender-appropriate appearance and behavior.” (quoting Turner, supra note 166, at 563) (internal quotation marks omitted)); see also Taylor Flynn, Transforming the Debate: Why We Need to Include Transgender Rights in the Struggles for Sex and Sexual Orientation Equality, 101 COLUM. L. REV. 392, 392 (2001) (defining transgender persons as those whose “appearance, behavior, or other personal characteristics differ from traditional gender norms”). 2015] Gender Identity Defines Sex 977 issued the Macy v. Holder decision, clarifying that “intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination ‘based on . . . sex,’ and such discrimination therefore violates Title VII.”186 While these developments in Title VII jurisprudence provided a new opportunity for transgender people to seek protections from discrimination in the workplace, the limits of the sex stereotyping and conversion theories began to emerge.

B. Limits to Sex-Stereotyping and Conversion Theories: The “Biological Sex” Misnomer

While these cases cleared the path for transgender people to bring claims of sex discrimination under civil rights law, neither the Price Waterhouse sex stereotyping theory nor the Schroer conversion theory addressed the full range of discrimination that transgender people face in the workplace and beyond.187 Courts were reticent to interpret sex discrimination against transgender people as a “per se” violation of Title VII.188 Without a firm understanding of gender identity as the core determinant of sex,189 courts carved out a new exception, this time in the realm of single-sex restrooms.190 Although courts have found it can be unlawful to not hire or to fire someone on the basis of their gender identity, they have somehow simultaneously found it can be lawful to deny someone use of the restroom that matches their gender identity. When it comes to interpreting sex in the discrimination context, many courts have reverted back to the notion of sex as a biologically fixed truth, determined by genital characteristics,191 and somehow separate from core gender identity.192 As

186. Macy v. Holder, EEOC Appeal No. 0120120821, at 14 (Apr. 20, 2012), available at http://www.pcc.edu/programs/paralegal/documents/macy-v-holder.pdf. 187. Cf. McGowan, supra note 178, at 219 (“Although sex stereotyping was a sound theory for our Title VII claim, we had lingering concerns that a court viewing transgender issues only through this lens might not gain a sufficient understanding of what it meant to be transgender.”). 188. See, e.g., Etsitty v. Utah Transit Auth., 502 F.3d 1215, 1224 (10th Cir. 2007) (noting that a “per se” claim under Title VII cannot be made based solely on an employer’s restroom policies); Goins v. W. Grp., 635 N.W.2d 717, 725 (Minn. 2011) (holding that an employer’s designation of restroom use “based solely on biological gender” was not a “prima facie” case of employment discrimination). 189. See McGowan, supra note 178, at 219 (discussing concern while working on Schroer case that the court would not understand what gender identity meant). 190. See, e.g., Etsitty, 502 F.3d at 1225 (noting that employers do not handicap employees based on their sex by asking that they use single-sex restrooms); Goins, 635 N.W.2d at 725–26 (stating that an employer’s policy of designating bathrooms according to biological gender does not justify hostile work discrimination claims based on sexual orientation). 191. See Green, supra note 15, at 78 (“Visible external genitalia, presumed chromosomal makeup, and presumed reproductive capacity are viewed as primal, objective, fixed, and ‘true’ . . . .”).

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Sharon McGowan points out, even in jurisdictions with explicit protections on the basis of gender identity,193 “courts have sua sponte crafted exceptions to these laws with respect to gender-segregated facilities such as restrooms.”194 For example, in the 2001 Corbett v. Corbett195 of bathroom cases, Goins v. West Group, the court distinguished “biological gender” from gender identity (or, in the court’s words, “self-image of gender”),196 ironically in Minnesota, the first state to pass an explicit “gender identity” nondiscrimination law in 1993.197 In Goins, a transgender woman sued her employer when it refused to allow her to use the women’s restroom at work.198 With little analysis, the court stated that the legislature could not have intended to upset what it termed “the cultural preference for restroom designation based on biological gender.”199

192. See, e.g., Etsitty, 502 F.3d at 1222 (“[T]here is nothing in the record to support the conclusion that the plain meaning of ‘sex’ encompasses anything more than male and female. In light of the traditional binary conception of sex, transsexuals may not claim protection under Title VII from discrimination based solely on their status as a transsexual. Rather, like all other employees, such protection extends to transsexual employees only if they are discriminated against because they are male or because they are female.”). 193. Eighteen states, the District of Columbia, and over 140 jurisdictions have laws and ordinances that explicitly prohibit discrimination on the basis of gender identity. Non-Discrimination Laws, TRANSGENDER LAW CENTER, http://transgenderlawcenter.org/equalitymap (follow “State Non- Discrimination Laws” hyperlink; then click on “Table Format” tab) (last visited Apr. 14, 2015). 194. McGowan, supra note 178, at 240. 195. Corbett was a similar case where the court deeply misunderstood transgender people, and the precedent left a lasting effect on the lives of transgender Americans. See Corbett v. Corbett (No. 1), [1971] P. 83, 104 (U.K.). 196. See Goins v. W. Grp., 635 N.W.2d 717, 723–25 (Minn. 2011). 197. DANA BEYER, JILLIAN T. WEISS & RIKI WILCHINS, NEW TITLE VII AND EEOC RULINGS PROTECT TRANSGENDER EMPLOYEES 4 (2014), available at http://transgenderlawcenter.org/wp- content/uploads/2014/01/TitleVII-Report-Final012414.pdf; see also McGowan, supra note 178, at 240 & n.143 (quoting and citing MINN. STAT. ANN. § 363A.03(44) (West 2009)) (discussing inclusion of “gender identity” within Minnesota’s nondiscrimination law). 198. Goins, 635 N.W.2d at 720. 199. Id. at 723. For a discussion of how civil rights movements always play out in the restroom, see Brief of Appellant Me. Human Rights Comm’n at 15, Doe v. Clenchy, 2014 ME 11, 86 A.3d 500 (No. PEN-12-582), 2013 WL 8351143, available at https://www.glad.org/uploads/docs/cases/doe-v- clenchy/2013-03-14-doe-v-clenchy-mhrc-brief.pdf (“[T]he court in Goins provided no analysis of the language in the statute, noting simply that bathrooms have historically been segregated by sex and the statute is not express. The same could be said for racial segregation leading up to the passage of the Title VII of the Civil Rights Act 1964. Then, the traditional and accepted practice in parts of the country was to segregate bathrooms and other facilities based on race. Here, as with Title VII, the “traditional and accepted” norms must yield to the requirements of the MHRA.” (citation omitted)), and Transgender Rights Toolkit: A Legal Guide for Trans People and Their Advocates: Equal Access to Public Restrooms, LAMBDA LEGAL, http://www.lambdalegal.org/sites/default/files/publications/downloads/trt_ equal-access-to-public-restrooms_3.pdf (last visited Apr. 14, 2015) (“Bathrooms have played a role in virtually every civil rights movement in the United States.”). 2015] Gender Identity Defines Sex 979

Similarly, in the 2005 case, Hispanic AIDS Forum v. Estate of Bruno, the court relied solely on Goins, without any independent analysis, in its interpretation of the New York City Human Rights Law, ruling that a nonprofit organization could not pursue a claim for discrimination when a landlord refused to renew a lease based on his objection to the restroom use by transgender clients.200 The landlord cited complaints from other tenants who allegedly objected to the use of restrooms by “men who think they’re women . . . using the women’s bathroom.”201 In spite of the explicit gender identity protections the court read into the law, it dismissed the claims, holding that there was no discrimination where the landlord applied the exclusion to everyone on the basis of “‘their biological sexual assignment.’”202 In the 2007 case, Etsitty v. Utah Transit Authority, a federal court denied a transgender woman’s employment discrimination claim where she was fired from her job as a bus driver.203 The employer asked Krystal Etsitty “where she was in the sex change process” and whether “she still had male genitalia.”204 In the absence of any complaint about Ms. Etsitty’s “performance, appearance, or restroom usage,” the employer fired her based solely on a “concern about liability” if she “was observed using the female restroom” and a “concern that [she] would switch back and forth between using male and female restrooms.”205 The court found this to be a “legitimate, nondiscriminatory reason.”206 Relying on Ulane’s “traditional binary conception of sex,” the court found that a transsexual “may not claim protection . . . based solely on their status as a transsexual.”207 The court deemed termination for the use of the gender-appropriate restroom nondiscriminatory because the transgender litigant was seen as neither male nor female, and thus, outside the law’s protection on the basis of sex.208 Ironically, the Etsitty court cited cases that discussed the multi-faceted nature of sex and contemplated the biological root of gender identity,209 yet

200. See Hispanic AIDS Forum v. Estate of Bruno, 792 N.Y.S.2d 43, 47 (App. Div. 2005). 201. McGowan, supra note 178, at 241 (internal quotation marks omitted). 202. Id. (quoting Hispanic AIDS Forum, 792 N.Y.S.2d at 47). 203. Etsitty v. Utah Transit Auth., 502 F.3d 1215, 1218–19 (10th Cir. 2007). 204. Id. at 1219. 205. Id. 206. Id. at 1224. 207. Id. at 1222. 208. See id. at 1224 (concluding employer’s reason for terminating Ms. Etsitty was permissible because it was unreasonable for the employer to comply with her restroom preferences). 209. Id. at 1222 (“Scientific research may someday cause a shift in the plain meaning of the term ‘sex’ so that it extends beyond the two starkly defined categories of male and female.” (citing Schroer v. Billington, 424 F. Supp. 2d 203, 212–13 & n.5 (D.D.C. 2006); Brown v. Zavaras, 63 F.3d 967, 971 (10th Cir. 1995)).

980 Vermont Law Review [Vol. 39:943 it failed to grasp that gender identity is a part of sex—the core component. Several courts have relied on the flawed reasoning of Etsitty to deny gender-appropriate restroom usage for transgender employees.210 The key to undoing these harms is to update the law with modern medical science.

III. GENDER IDENTITY IS “BIOLOGICAL” AND THE PRIMARY DETERMINANT OF SEX

A. The Third Theory of Schroer

The Schroer case was groundbreaking in expanding protections for transgender people in the workplace and beyond. The court in Schroer, like many trial courts before, reviewed extensive medical testimony on the components of sex but found it unnecessary to rely upon these factors in determining that the litigant had experienced sex discrimination when her job offer was rescinded based on her gender transition.211 Sharon McGowan, the ACLU lawyer in Schroer and, at the time of this Article’s publication, Deputy Chief of the Appellate Section of the Civil Rights Division of the U.S. Department of Justice, analyzes her team’s litigation strategy in her article, Working with Clients to Develop Compatible Visions of What It Means to “Win” a Case: Reflections on Schroer v. Billington.212 In discussing her team’s litigation strategy, McGowan explains that they feared what many transgender litigants face: that the court would have “no familiarity with the concepts of gender identity.”213 As McGowan describes, the ACLU’s expert, Dr. Walter Bockting of WPATH, testified that the community of scientific experts:

recognized nine214 elements that comprised one’s sex: chromosomal sex, gonadal sex, fetal hormonal sex (prenatal

210. See, e.g., Michaels v. Akal Sec., Inc., No. 09-cv-01300-ZLW-CBS, 2010 U.S. Dist. LEXIS 62954, at *9 (D. Colo. June 24, 2010) (citing Etsitty to state that “transsexuals are not a protected class under Title VII,” and holding that “Etsitty precludes [a Title VII] claim based solely upon restrictions on Plaintiff’s usage of certain bathrooms”). 211. Schroer, 424 F. Supp. 2d at 212–13 (recognizing various scientific components of sexual identity but preferring to focus on a straightforward theory of sex stereotyping and a religious conversion analogy). 212. McGowan, supra note 178. 213. Id. at 219. 214. While experts agree that there is a range of components that comprise one’s sex, the categories have evolved over time. See, e.g., In re Heilig, 816 A.2d 68, 73 (Md. 2003) (citing Greenberg, Defining Male and Female, supra note 37, at 278; In re Estate of Gardiner, 22 P.3d 1086 (2001); Maffei v. Kolaeton Indus., Inc., 626 N.Y.S.2d 391 (Sup. Ct. 1995)) (listing seven factors relevant to the determination of gender); Greenberg & Herald, supra note 36, at 825–26 (discussing eight factors that contribute to a person’s sex, including gender identity). Regardless of the total and 2015] Gender Identity Defines Sex 981

hormones produced by the gonads), internal morphologic sex (internal genitalia, i.e., ovaries, uterus, testes), external morphological sex (external genitalia, i.e., penis, clitoris, vulva), hypothalamic sex (i.e., sexual differentiations in brain development and structure), sex of assignment and rearing, pubertal hormonal sex, and gender identity and role.215

In his testimony, Bockting agreed with the defendant’s expert that one’s chromosomes cannot be changed, but pointed out that “scientific study had also concluded that attempts to change one’s gender identity have been unsuccessful and in many cases were very harmful to the individual involved.”216

Accordingly, he testified that, whenever there is a lack of congruence among the various elements of sex, the goal of the gender specialists is to bring the other elements of sex into conformity with one’s gender identity, thus confirming the primacy of gender identity relative to the other aspects of sex.217

McGowan further notes that Bockting explained that while experts do not yet have a precise biological explanation for gender identity, the “best science available definitively eliminated the possibility that only psychosocial influences produce gender identity,218 and the scientific inquiries underway were looking at how, not whether, biological forces influence the development of gender identity.”219 The litigation team presented evidence that “gender identity was, in fact, part of one’s biological sex, and that a definitive biological etiology was not necessary in order for gender identity to be part of ‘sex’ as a matter of law.”220 Of note, even the defendant’s expert conceded in his testimony that “if and when a varying language, all agree that gender identity or self-identity is biologically based and a core, immutable factor that should be given primacy for determining sex. 215. McGowan, supra note 178, at 234. “For most people, all aspects of sex are in alignment, and therefore a lay person may not necessarily think about all of the component parts of sex when describing themselves as male or female.” Id. Yet, “[t]he existence of transgender and intersex people . . . demonstrates that there can be a lack of consonance among the various aspects of a person’s sex.” Id. 216. Id. at 234–35 (citing Tr. of Bench Trial at 212–12, 445–46, Schroer v. Billington, 525 F. Supp. 2d 58 (D.D.C. 2007) (No. 05-1090)). 217. Id. at 235 (citing Tr. of Bench Trial at 212–12, 445–46, Schroer, 525 F. Supp. 2d 58 (No. 05-1090)). 218. Id. at 237 (citing Tr. of Bench Trial at 219–22, Schroer, 525 F. Supp. 2d 58 (No. 05- 1090)). 219. Id. at 237 (emphasis added) (citing Tr. of Bench Trial at 442–43, Schroer, 525 F. Supp. 2d 58 (No. 05-1090)). 220. Id. at 235.

982 Vermont Law Review [Vol. 39:943 cause for gender dysphoria is finally identified, it would probably reflect a combination of both biological and psychosocial influences.”221 In the end, the Schroer court did not need to conclude that gender identity is part of a person’s biological sex to reach the groundbreaking ruling that helped define gender transition itself as transgressing sex stereotypes. But, a “biological sex blind spot” remained. In her post- litigation reflections, McGowan questions whether the litigation team “lost an opportunity to secure a legal ruling on [gender identity as a component of sex] that would have been tremendously useful in later advocacy efforts.”222 It is important to understand gender identity as both biological and primary in determining sex. Transgender people continue to suffer indignities and harms in their daily lives by not having their gender identity respected or seen as real.223 When “gender identity” is separated from “biological sex,” it is the equivalent of stripping a transgender person of legal, medical, and social identity. Thus, it is critical for courts to have a basic understanding of the etiology of sex.

B. Etiology of Sex

For transgender people to be treated equally before the law and in the eyes of society, courts must use the latest medical science of determining sex.224 Segregating so-called “real” or tangible sex characteristics using coded language, such as “physical,” “anatomical,” “biological,” or “genetic,”—from so-called “imaginary” or intangible or psychological characteristics like “gender identity” or “self-identity,” reflects a fundamental misunderstanding of sex.225 The etiology of sex reveals that it is a multi-faceted determination.226

221. Id. (emphasis added) (citing Tr. of Bench Trial at 376, 395, Schroer, 525 F. Supp. 2d 58 (No. 05-1090)). 222. Id. at 239. McGowan continued, “I suspect . . . that such a ruling would have been a powerful tool in our arsenal for combating the kinds of discrimination that most regularly interfere with transgender people’s ability to participate meaningfully in society.” Id. at 241. 223. See id. at 241 (“If advocates had a definitive legal ruling making clear that gender identity is part of what constitutes a person’s biological sex, it seems like it would—or at least should—be much more difficult to restrict the access of transgender people to gender identity appropriate facilities simply by characterizing access restrictions as neutral rules reflecting an irrefutable biological truth about sex.”). 224. See Greenberg, Roads Less Traveled, supra note 17, at 51–52 (proposing that legal understanding of sex should reflect scientific understanding that sex is not a fixed binary); Flynn, supra note 117, at 34–35 (critiquing approach taken by majority of courts of defining sex as an “inflexible category” and suggesting instead using gender identity, which reflects “current understanding of sex”). 225. Separating gender identity from the physical attributes of the body is not only inaccurate, but frames it as a matter of preference or self-expression, rather than a core aspect of identity. Cf. Jesse 2015] Gender Identity Defines Sex 983

Sex determinations have not always been based on “genital shorthand.”227 The definition of sex has evolved over time. For example, during the Renaissance Era, also known as the “Age of the Gonads,”228 determinations of sex were based on the ability to reproduce.229 As Greenberg and Herald describe, beginning in the 1950s, the

idea that gender identity was based upon nurture and not nature became the conventional wisdom . . . [P]sychologists believed that children were born without a sense of a male or female gender and that gender identity would develop consistently with the appearance of the child’s genitalia and the gender role in which the child is raised.230

Doctors began the practice of surgically altering the infant genitalia that did not conform in size and shape to what was considered “acceptable” or “normal,”231 even if it “destroy[ed] the person’s ability to have satisfactory sex.”232 The practice still persists and is the subject of active litigation.233

Bering, Stop Saying “Sexual Preference,” SLATE (June 17, 2013, 7:45 AM), http://www.slate.com/ articles/health_and_science/science/2013/06/sexual_preference_is_wrong_say_sexual_orientation_inste ad.html (discussing the debate regarding use of the term “sexual preference” versus “sexual orientation” and stating “[t]hink how bizarre it would sound if we were to apply the same language [or preference] to any other unalterable biological trait”). 226. See Greenberg, Defining Male and Female, supra note 36, at 278–79; Greenberg & Herald, supra note 36, at 825–26; McGowan, supra note 178, at 234-35; cf. Green, supra note 15, at 78 (“[T]o define ‘sex’ as the fixed point of a compass that always tells us the ‘truth’ about a person is both archaic and naive.”). 227. Flynn, supra note 117, at 34 (referring to “shorthand use of one’s birth genitalia to identify sex”); see also Greenberg, Roads Less Traveled, supra note 17, at 58 (noting that gender is not always identifiable at birth). For example, the Olympics has a shifting policy on sex determination—genitals, then chromosomes, and currently recognizing transgender people according to gender identity if the person has had surgery. Transsexual Athletes OK for Athens, CNN.COM (May 18, 2004), http://edition.cnn.com/2004/SPORT/05/17/olympics.transsexual/. 228. Alice Domurat Dreger, A History of Intersexuality: From the Age of Gonads to the Age of Consent, 9 J. CLINICAL ETHICS, 345, 345–46 (1998) [hereinafter Dreger, A History of Intersexuality]. 229. Greenberg & Herald, supra note 36, at 826–27 (explaining that genitals were not always the test); Alice Domurat Dreger, “Ambiguous Sex”—or Ambivalent Medicine? Ethical Issues in the Treatment of Intersexuality, 28 HASTINGS CENTER REP. 24, 26 (1998) [hereinafter Dreger, “Ambiguous Sex”]. 230. Greenberg & Herald, supra note 36, at 827–28. 231. An “adequate penis” must be “2.5 centimeters (one inch) when stretched at birth.” Greenberg & Herald, supra note 36, at 828 n.35 (citing Dreger, A History of Intersexuality, supra note 228). “The penis became the essential determinant of sex because . . . a man could only be a true man if he possessed a penis that was capable of performing two acts: penetrating a vagina and being used to urinate while standing.” Id. at 828 (citing Dreger, “Ambiguous Sex”, supra note 229, at 26). Infants with XY chromosomes with “inadequate” penises or other genital ambiguity turned into girls. Id. at 829. Infants with XX chromosomes who had an “unacceptable” size clitoris were surgically reduced even if it destroyed the person’s ability to have satisfactory sex.” Id. An “adequate vagina” was defined as

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There are unlimited ambiguities that may occur within each of the components of sex, including gender identity.234 For most people, these factors are congruent. For transgender and intersex people, one or more of these categories vary. When any of these conflict, “gender identity is the determinative component.”235 Many years of research have confirmed the importance and immutability of gender identity in sex determinations.236 As discussed in Part I, the case studies have shown that attempts to change or dismiss gender identity can have serious consequences.237 “[E]xperts in a variety of disciplines . . . believe that the brain plays the primary role in determining gender self-identity.”238 Flynn states, “[r]eliance on gender identity to capable of being penetrated by an ‘adequate penis.’” Id. at 828. “In other words, men are defined based on their ability to penetrate females, and females are defined based on their ability to procreate. Sex, therefore, can be viewed as a social construct rather than a biological fact.” Greenberg, Roads Less Traveled, supra note 17, at 52. 232. Greenberg & Herald, supra note 36, at 829. Anne Tamar-Mattis, Exceptions to the Rule: Curing the Law’s Failure to Protect Intersex Infants, 21 BERKLEY J. GENDER L. & JUST. 59, 60 (2006) (mentioning genital-normalizing procedures that aim to allow intersex individuals to live “normal” lives). For a detailed, scientific discussion on intersex medical conditions, see, Greenberg, Defining Male and Female, supra note 36, at 278–92 (providing a thorough background on the biological components of intersexuality). See also Kishka-Kamari Ford, “First, Do No Harm”—The Fiction of Legal Parental Consent to Genital Normalizing Surgery on Intersexed Infants, 19 YALE L & POL’Y REV. 469, 470 (2001) (specifying the myriad intersex conditions). 233. See, e.g., M.C. ex rel. Crawford v. Amrhein, Nos. 13-2178, 13-2182, 12-2183, 2015 WL 310523, at *1–2 (4th Cir. Jan. 26, 2015). 234. “[A]t least eight attributes contribute to a person’s sex”: (1) “genetic or chromosomal sex”; (2) “gonadal sex (reproductive sex glands)”; (3) “internal morphologic sex (seminal vesicles, prostate, vagina, uterus, fallopian tubes)”; (4) “external morphologic sex (genitalia)”; (5) “hormonal sex”; (6) “phenotypic sex (secondary sexual features such as facial hair or breasts)”; (7) “assigned sex and gender of rearing”; (8) “gender identity”. Greenberg & Herald, supra note 36, at 825–26 (citing JOHN MONEY, SEX ERRORS OF THE BODY AND RELATED SYNDROMES: A GUIDE TO COUNSELING CHILDREN, ADOLESCENTS AND THEIR FAMILIES 4 (2d ed. 1994)). 235. Flynn, supra note 117, at 34; see also supra note 36. 236. See Greenberg & Herald, supra note 36, at 830–31 (“[G]ender identity is not as malleable as was once believed.”). “There is evidence suggesting that the brain differentiates into ‘male’ and ‘female’ brains, just as the fetus’s rudimentary sex organs differentiate into ‘male’ and ‘female’ genitalia.” Id. at 832. 237. See Greenberg, Roads Less Traveled, supra note 17, at 63 (noting “[t]he reports about . . . intersex persons, whose self-identities do not conform to their assigned genders, have forced the medical and psychiatric communities to question their long-held beliefs about sexual identity formation”); John Colapinto, The True Story of John/Joan, ROLLING STONE, Dec. 11, 1997 (reporting on an attempt to change gender identity resulting in a patient who “struggled against his imposed girlhood from the start”). 238. Greenberg & Herald, supra note 36, at 829. “[R]ecent studies of gender-identity development indicate that gender identity may be more dependent upon brain function and hormonal influences than the appearance of the genitalia.” Id. at 830; see, e.g., Berglund, et al., Male-to-Female Transsexuals Show Sex-Atypical Hypothalamus Activation When Smelling Odorous Steroids, 18 CEREBRAL CORTEX, 1900, 1908 (2008) (suggesting that “in transsexuals the organization of certain sexually dimorphic circuits of the anterior hypothalamus could be sex atypical”); Besser et al., Atypical 2015] Gender Identity Defines Sex 985 determine legal sex is straightforward.”239 In her article, The Roads Less Traveled: The Problem with Binary Sex Categories, Greenberg proposes that “legal sex reflect scientific developments that emphasize the importance of self-identification.”240 She argues that “[s]uch an approach will benefit the people most affected by these laws and is consistent with principles of justice and other legal values.”241 Greenberg’s proposal would provide an opportunity for courts to have a deeper understanding of who transgender people are and of why gender identity is essential in legal determinations of sex. The next subpart discusses an example of a case litigated by a pioneering transsexual attorney, Rachael Wallbank,242 in which an Australian court was provided the most recent medical science of sex and, in contrast to the “legal horrors” discussed in Part II, the court validated and affirmed the transgender litigant.

C. Transgender as Intersex: Success of In re Kevin

The landmark 2001 Australian case, In re Kevin, involving the status of a transgender man’s marriage and his relationships with his wife and child,

Gender Development: A Review, 9 INT’L J. TRANSGENDERISM 29, 38 (2006) (demonstrating that gender dysphoria has a physical origin); Ernest Govier et al., Dichotic Listening, Handedness, Brain Organization and Transsexuality, 12 INT’L J. TRANSGENDERISM 144, 152 (2010) (describing scientific studies resulting in the conclusion that “[t]he recent reevaluation of the standard view of sexual differentiation of the brain sees the different expression of genes in male and female brains as playing a major role in sexing brains”); Alicia Garcia-Falgueras & Dick F. Swaab, A Sex Difference in the Hypothalamic Uncinate Nucleus: Relationship to Gender Identity, 131 BRAIN 3132, 3141–45 (2008) (showing that section of male-to-female transsexual brain is similar in volume and neuron number to section of female brain); Frank Kruijver et al., Male–to–Female Transsexuals Have Female Neuron Numbers in a Limbic Nucleus, 85 J. CLINICAL ENDOCRINOLOGY & METABOLISM 2034, 2037–38 (2000) (showing neuronal sex differences in brains of transsexuals); Eileen Luders et al., Regional Gray Matter Variation in Male-to-Female Transsexualism, 46 NEUROIMAGE 904 (2009), available at http://www.sciencedirect.com/science/article/pii/S1053811909003176 (finding evidence that transsexualism has distinct cerebral patterns, which helps confirm that brain anatomy plays a role in gender identity); Giuseppina Rametti et al., White Matter Microstructure in Female to Male Transsexuals Before Cross-Sex Hormonal Treatment: A Diffusion Tensor Imaging Study, 45 J. PSYCHIATRIC RES. 199, 201–03 (2011) (showing inherent difference in the brain structure of transsexuals); D.F. Swaab, Sexual Differentiation of the Human Brain: Relevance For Gender Identity, Transsexualism and Sexual Orientation, 19 GYNECOL ENDOCRINOL 301, 301 (2004) (“In the human brain, structural differences have been described that seem to be related to gender identity . . . .”); Mariko Tanaka et al., Regional Cerebral Blood Flow Changes in Female to Male Gender Identity Disorder, 64 PSYCHIATRY & CLINICAL NEUROSCIENCES 157, 157–58 (2010) (showing that subjects with gender dysphoria had significant brain differences from those without); Zhou et al., supra note 61, at 68 (showing cisgender female brain structure in transgender women). 239. Flynn, supra note 117, at 35. Flynn “urge[s] an approach already taken by a handful of courts—relying on gender identity as the defining basis for determining legal sex.” Id. at 34. 240. Greenberg, Roads Less Traveled, supra note 17, at 52. 241. Id. 242. See Green, supra note 15, at 53.

986 Vermont Law Review [Vol. 39:943 set an international standard of respect and validation for transgender people in the eyes of the law.243 Attorney Wallbank provided the court with extensive medical testimony about transsexualism and how the purpose of treatment is “to alter [the] sexually differentiated body in order to bring it into better harmony with the individual’s innate sexual identity (otherwise called neurological, psychological or brain sex.)”244 According to McGowan, “the judge concluded that, on balance, it was more likely than not that gender identity is a product of biological influences, including brain development, and that transsexuality was a natural variation of gender that, like intersexuality, demonstrated that gender was a spectrum rather than a rigid binary.”245 The court specifically refuted the “absolute and unsupported assertions,” from the Corbett decision, “that a person’s sex is fixed unalterably at birth.”246 As Green presents, the court stated it is a “question of law what criteria should be applied in determining whether a person is a man or a woman for purposes of the law of marriage, and a question of fact whether the criteria exist in a particular case.”247 The court was convinced “‘that the characteristics of transsexuals are as much ‘biological’ as those of people thought of as intersex.’”248 Following the court’s declaration, the Attorney-General for the Commonwealth petitioned for a final disposition before the full Family Court of Australia.249 Further, as Green describes, after considering the full record, as well as “the history of the institution of marriage” and the “‘contemporary and ordinary’ meanings of the words man and woman,” the court affirmed the lower court’s ruling.250 Green writes that the court wrote, “‘an intersex person appears to be defined as someone with at least one sexual incongruity. If brain sex can give rise to such an incongruity then, legally, we think that there may be no difference between an intersex person and a transsexual person.’”251

243. See In re Kevin: Validity of Marriage of a Transsexual (2001) FamCA 1074 (Austl.), available at http://www.wallbanks.com/PDF/Re%20Kevin_ChisholmDecision.pdf. 244. Wallbank, supra note 18, at 461–62. 245. McGowan, supra note 178, at 239 (citing In re Kevin, FamCA 1074 [312]) (Austl.). 246. In re Kevin, FamCA 1074 [315]. 247. Green, supra note 15, at 52 (internal quotation marks omitted). “[The task of the law], in a legal and social context that divides all human beings into male and female, is to assign individuals to one category or the other, including individuals whose characteristics are not uniformly those of one or the other sex.” Id. at 52–53 (quoting In re Kevin, FamCA 1074). 248. Green, supra note 15, at 53 (quoting Re Kevin, FamCA 1074). 249. Id. at 58. 250. Id. (quoting Kevin & Jennifer, FamCA 94). 251. Id. (quoting Kevin & Jennifer, FamCA 94). 2015] Gender Identity Defines Sex 987

Unlike the U.S. case law discussed above, in making a determination of sex, the Australian court treated the transgender litigant with respect. Dr. Green notes that, “the Court refrained from exposing Kevin in a verbal, genital, and sexual dissection, and from requiring his external genitalia to have specific dimensions.”252 In her article, Wallbank credits her success to positioning transsexuality “squarely within the intersexual continuum”253 so that the court could view transsexualism as “a form of human diversity in sexual formation.”254 Wallbank asserts that the limitation of “common law sex” is that it “does not require or invite some scientific investigation or argument as to which (or which set) of the sexually differentiated aspects of a person determine their possibly multi-faceted biological sex.”255 She continues:

A human being’s sexual identity derives from the sexual differentiation of [the] human brain as to either the male or the female sex, in the same way as the other sexually differentiated aspects of the human body such as the genitalia, and is fixed and unalterable by the completion of infancy at the latest irrespective of social environment.256

Thus, “whether one is able to live a reasonable life as a male or a female is ultimately determined by one’s brain-sex differentiation rather than the appearance of one’s genitalia and/or other sexually differentiated body parts.”257 In other words, “biological sex” is determined by “brain sex,” i.e., gender identity.258 The In re Kevin decision provides an example of how courts can better understand, validate, and respect transgender people. A court presented with expert medical testimony of the multifaceted components of sex can properly acknowledge gender identity as a biological factor, rather than a choice, and will be more likely to provide a transgender litigant with understanding and proper legal recognition.

252. Id. at 53. Green also discusses Rachael Wallbank and her article about the In re Kevin case. Id. 253. See Wallbank, supra note 18, at 471. 254. See id. at 461. 255. Id. at 466. 256. Id. at 474. 257. Id. at 467. 258. See id.

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D. Forgiveness, Choice, and Biological Justification

One of the barriers to recognition and respect that transgender people face in the courts and beyond is that “brain sex” is not readily apparent,259 and transgender people must be believed about who they are.260 The law has taken an interest in distinguishing transsexuals from intersex people.261 Unfortunately, as Dr. Green notes, even the Encyclopedia Britannica is at odds with modern science, “establishing the transsexual person [as]: one who claims the other sex without biological justification.”262 Professor Alex Sharpe, in her article, Transgender Marriage and the Legal Obligation to Disclose Gender History, notes “[w]hile both intersex and transgender people may undergo genital surgeries, in the case of intersex people, surgery is understood as assisting nature, whereas in the case of transgender people, surgery is understood as a departure from it.”263 Once the In re Kevin court understood the nature of gender identity and that it was biological, and not a choice, the court extended the legal forgiveness granted to intersex conditions to transgender people. A common misunderstanding about the transgender experience is that it is about choice.264 Professor Jillian Weiss states: “Transgender identity is a choice only in the sense of ‘Hobson’s choice,’ the option of taking the one thing offered or nothing. . . . Essentially, gender chooses us, and not the other way around.”265 If the goal for transgender people is to provide for the most self-determination under the law, we must go to the root of the reason for “changing” one’s sex. A proper understanding of medical science reveals the “‘innocence’ with respect to the underlying condition that is triggering discrimination by third parties.”266 Transition is not altering one’s sex, but affirming one’s underlying gender identity.267 It is not done to evade or to be someone you are not; rather, it is to realize who you deeply are.

259. See supra notes 55, 257 and accompanying text. 260. See Wallbank, supra note 18, at 481 (explaining that a challenge for transgender litigants is the fact that “[p]eople with transsexualism self-diagnose their condition”). 261. Green, supra note 15, at 36. 262. Id. at 26 (emphasis added) (citing Transsexualism, ENCYCLOPEDIA BRITANNICA). 263. Sharpe, supra note 103, at 42–43. 264. Laura Jane Grace, lead singer of a popular punk band, has written lyrics in response to this common misperception. See AGAINST ME!, TRANSGENDER DYSPHORIA BLUES (Total Treble 2014) (“You know it’s obvious, but we can’t choose how we’re made.”). 265. Jill Weiss, Gender Autonomy, Transgender Identity and Substantive Due Process: Finding a Rational Basis for Lawrence v. Texas, 5 TOURO J. RACE, GENDER & ETHNICITY 2, 7–8 (2010), available at https://www.tourolaw.edu/JournalRGE/uploads/Issues/Vol5Issue1/Weiss_Final.pdf. 266. McGowan, supra note 178, at 242. 267. Clenchy Amicus, supra note 34, at 9. 2015] Gender Identity Defines Sex 989

By providing a framework for the importance of gender identity, medical science validates, rather than further pathologizes, transgender people’s existence in the eyes of the law.268 Understanding the importance of self-identity provides an avenue to liberation. Such framing provides the necessary context for arguing for heightened scrutiny under the Constitution, shifting the concept from expressing oneself by choice to aligning oneself with a core, immutable trait.269 The more the courts understand gender identity as the primary component of sex, the more deference will be given to transgender people under the law to define themselves. The next Part will provide an overview of how recent gains in transgender rights law have been linked to a proper understanding of gender identity as the core determinant of sex.

IV. LEGAL GAINS HINGE ON UNDERSTANDING GENDER IDENTITY AS THE PRIMARY COMPONENT OF SEX

Where courts have given weight to the etiology of sex, transgender people have found validation and dignity in the eyes of the law. Even during the Corbett era, a handful of U.S. courts validated the transgender litigant’s gender identity, after reviewing, at times, “overwhelming medical evidence”270 of its importance among the factors that determine sex, in

268. See Weiss, supra note 265, at 22–23 (noting that Laura Langley, in her note, Self- Determination in a Gender Fundamentalist State: Toward Legal Liberation of Transgender Identities, “acknowledges the problems inherent in medicalization, but suggests that ‘under current paradigm, understanding, manipulating and exploding these regulatory entities is prerequisite to obtaining the maximum gender self-determining agency possible for any transgender individual’ because courts often rely on medical experts in this area” (quoting Laura Langley, Self-Determination in a Gender Fundamentalist State: Toward Legal Liberation of Transgender Identities, 12 TEX. J. C.L. & C.R. 101 (2006)); Dean Spade, Resisting Medicine, Re/modeling Gender, 18 BERKELEY WOMEN’S L.J. 15, 23–24 (2003), reprinted in SEXUALITY, GENDER, AND THE LAW 1457 (William N. Eskridge & Nan D. Hunter eds., Foundation Press 2d ed. 2004) (discussing how medical authority is tied to trans identity); cf. Press Release, Walter Bockting et al., President, World Prof’l Ass’n of Transgender Health (May 26, 2010), available at http://www.wpath.org/uploaded_files/140/files/de-psychopathologisation%205-26-10%20 on%20letterhead.pdf (noting that “psychopathologisation” can lead to “discrimination”). 269. See, e.g., Chai R. Feldblum, The Right to Define One’s Own Concept of Existence: What Lawrence Can Mean for Intersex Transgender People, 7 GEO. J. GENDER & L. 115, 116 (2006). Feldblum, current EEOC Commissioner, argued that under Lawrence v. Texas: [T]he right “to define one’s own concept of existence”—is an interest that speaks directly . . . to the efforts of transgender people to define their gender identity and expression . . . .[The state has an obligation] to provide intersex and transgender people with the affirmative protection and social structures necessary for them to realize their efforts towards self-definition. Id. For a detailed analysis of scholarship applying Lawrence v. Texas to transgender rights, see generally Weiss, supra note 265. 270. Richards v. U.S. Tennis Ass’n, 400 N.Y.S.2d 267 (Sup. Ct. 1977).

990 Vermont Law Review [Vol. 39:943 marriage determinations,271 birth certificate challenges,272 court orders affirming sex,273 and equal protection challenges.274 In recent landmark cases involving transgender people, courts have finally properly interpreted Title IX and state nondiscrimination statutes to protect transgender litigants. There has also been a shift in policy to better define gender identity as the core biological determinant of sex.

A. Title IX Interpretation of Sex Recognizing Gender Identity

Drawing on the significant advances under Title VII over the last several years,275 the U.S. Department of Education has paid increasing

271. For example, in M.T. v. J.T., the cisgender spouse of a transgender woman claimed that his wife, who transitioned prior to the marriage, was male and that the marriage was void. M.T. v. J.T., 355 A.2d 204, 205 (N.J. Super. Ct. App. Div. 1976). “The court relied on the predominant view within the medical establishment that, among the many components involved in determining sex, chief among them is gender identity. When birth anatomy and gender identity conflict, the court stated, the role of anatomy is merely ‘secondary.’” Flynn, supra note 117, at 35. For other examples, see In re Estate of Araguz, 443 S.W.3d 233, 245 (Tex. Ct. App. 2014) (discussing whether decedent’s marriage was void as a matter of law as a same-sex marriage); In re Beatie v. Beatie, 333 P.3d 754, 757–58 (Ariz. Ct. App. 2014) (holding trial court erred in concluding it did not have subject matter jurisdiction to dissolve a marriage between a transgender man and a cisgender woman, when the transgender man had complied with statutory requirements to legally amend his birth certificate); and Miller v. Angel, No. GD053180, slip. op. at 8, 10 (Cal. Super. Ct. Aug. 6, 2014) (rejecting expert testimony that “the absence of a birth certificate for Petitioner demonstrating he was male” rendered the marriage an “absolute nullity”). See also Greenberg, Roads Less Traveled, supra note 17, at 51, 68–69 (noting that courts must begin to recognize gender identity as a key factor in determining a person’s sex); Greenberg & Herald, supra note 36, at 840 (discussing state trial courts’ ruling that “post-operative transsex persons acquire their self-identified sex as their legal sex”). 272. See, e.g., Anonymous v. Mellon, 398 N.Y.S.2d 99, 103 (Sup. Ct. 1977) (noting that the practice of Bureau of Vital Records not to list transgender petitioner’s post-transition gender on birth certificate would not “preclude petitioner under appropriate circumstances in attempting to establish female gender when legal obligations are to be decided;” “sexual gender is not merely a matter of anatomy. Other determinants include psychological identity, acceptability by others, chromosomal makeup, reproductive capacity and endocrine levels. . . . Basing determinations of gender upon any one indicator might well lead to an unwarranted conclusion”); Richards v. U.S. Tennis Ass’n, 400 N.Y.S.2d 267, 267 (Sup. Ct. 1977) (explaining that reliance on chromosomes as sole determinant of person’s sex is discriminatory in light of “overwhelming medical evidence” that transgender person was female; multiple other factors must also be considered to determine a person’s sex). 273. See, e.g., In re Heilig, 816 A.2d 68, 73, 87 (Md. 2003) (citing Greenberg, Defining Male and Female, supra note 37, at 278; In re Estate of Gardiner, 22 P.3d 1086 (2001); Maffei v. Kolaeton Indus., 626 N.Y.S.2d 391 (Sup. Ct. 1995)) (listing seven medically recognized factors comprising a person’s gender and concluding lower court possessed equitable jurisdiction to grant order changing plaintiffs’ name and “sexual identity” designation on her birth certificate). 274. See, e.g., Brown v. Zavaras, 63 F.3d 967, 970–71 (10th Cir. 1995) (stating that the possibility that gender identity may be biological suggests reevaluating whether transgender people are a protected class for purposes of the Equal Protection Clause); In re Lovo-Lara, 23 I&N Dec. 746, 747, 752 (BIA 2005), available at http://www.justice.gov/eoir/vll/intdec/vol23/3512%20.pdf. 275. See, e.g., Franklin v. Gwinnet Cnty. Pub. Schs., 503 U.S. 60, 76 (1991) (applying Title VII to Title IX); Glenn v. Brumby, 663 F.3d 1312, 1321 (11th Cir. 2011) (holding that a supervisor at the 2015] Gender Identity Defines Sex 991 attention to transgender students. The Department has clarified on multiple occasions that discrimination on the basis of sex under Title IX includes discrimination on the basis of gender identity.276 For example, in two recent settlements with school districts, the U.S. Department of Justice (“DOJ”) and the U.S. Department of Education Office of Civil Rights (“OCR”) affirmed that protection on the basis of sex means being treated in accordance with the student’s gender identity for all purposes, including use of the restroom. In 2013, the DOJ reached a settlement with a California school on behalf of a twelve-year-old transgender boy who was told to use a restroom in the nurse’s office instead of the boys’ restroom and locker room.277 The school also told him that he could not room with the other boys on a field trip.278 The settlement required the school district to take a number of steps to ensure that the school would treat the transgender student like the other boys, including allowing the student to use the boys’ multi-stall restroom and locker room.279 Then, in 2014, the OCR approved an agreement between a transgender girl and her school district, after she complained of gender-based peer

Georgia State Assembly did not have a satisfactorily important governmental interest that would justify firing an employee who intended to transition); Schroer v. Billington, 424 F. Supp. 2d 203, 213 (D.D.C. 2006) (applying Title VII to a straightforward understanding of transsexuality); Macy v. Holder, EEOC Appeal No. 0120120821 6–7 (Apr. 20, 2012), available at http://www.pcc.edu/programs/paralegal/ documents/macy-v-holder.pdf (reinforcing the notion that Title VII prohibits discrimination on the basis of both sex and gender, which includes “the cultural and social aspects associated with masculinity and femininity”); Harper Jean Tobin & Jennifer Levi, Securing Equal Access to Sex-Segregated Facilities for Transgender Students, 28 WISC. J. L. GENDER & SOC’Y 301, 314 (2013) (documenting how “at least eight states” and “numerous municipalities” have adopted policies that focus on gender identity, rather than so-called “biological sex,” for determining access to school restrooms and facilities). 276. See, e.g., CATHERINE E. LHAMON, U.S. DEP’T OF EDUC., QUESTIONS AND ANSWERS ON TITLE IX AND SINGLE-SEX ELEMENTARY AND SECONDARY CLASSES AND EXTRACURRICULAR ACTIVITIES 25 (2014) (“Under Title IX, a recipient generally must treat transgender students consistent with their gender identity in all aspects of the planning, implementation, enrollment, operation, and evaluation of single-sex classes.”); Letter from Russlynn Ali, Assistant Sec’y for Civil Rights, Office for Civil Rights, U.S. Dep’t of Educ., to Colleague (Oct. 26, 2010), available at http://www2.ed.gov/about/ offices/list/ocr/letters/colleague-201010.pdf; cf. Letter from Leon Rodriguez, Dir., Office for Civil Rights, U.S. Dep’t of Health & Human Servs., to Maya Rupert, Esq., Fed. Policy Dir., Nat’l Ctr. for Lesbian Rights (July 12, 2012) (stating that the Department of Health and Human Services, Office of Civil Rights recognizes that § 1557 of the Affordable Care Act, which prohibits discrimination on the grounds prohibited under Title IX of the Education Amendments of 1972, “extends to claims of discrimination based on gender identity”). 277. See Resolution Agreement Between Arcadia Unified Sch. Dist., U.S. Dep’t of Educ., & U.S. Dep’t of Justice, OCR Case No. 09-12-1020, DOJ Case No. 169-12C-70, at 1 (July 24, 2013), available at http://www.nclrights.org/wp-content/uploads/2013/09/Arcadia_Resolution_agreement_ 07.24.2013.pdf. 278. Id. 279. Id. at 3.

992 Vermont Law Review [Vol. 39:943 harassment.280 The agreement memorialized the student’s use of sex- designated facilities “for female students at school . . . consistent with her gender identity.”281 More recently, the DOJ issued a Statement of Interest in Tooley v. Van Buren Public Schools, where a fourteen-year-old transgender boy endured severe bullying by classmates and was denied access to the boys’ restroom by the school.282 The DOJ clarified that gender identity is a component of sex and that “transgender persons may allege sex discrimination based on sex stereotyping under Title IX and the Equal Protection Clause [as well as on the basis of] gender identity and transgender status.”283 These major steps by federal agencies ensuring proper application of the protections against sex discrimination, including discrimination on the basis of gender identity, reveal significant progress. Jennifer Levi and Harper Jean Tobin in their article, Securing Equal Access to Sex-Segregated Facilities for Transgender Students, summarize the shift in thinking:

Denying equal access to school facilities for transgender students effectively singles them out, apart from all others in the community, with a stigmatizing message that a transgender boy is not a normal or real boy, or a transgender girl is not a normal or real girl. This message, which coincides precisely with the cultural messages that drive bullying of transgender youth, is reinforced on a daily basis when students are treated differently from other boys and girls.284

The cost to the transgender student when the student’s gender identity is not respected can be severe.285 “This is precisely the kind of ‘badge of inferiority’ that antidiscrimination laws, such as Title IX, forbid.”286

280. Resolution Agreement, Downey Unified Sch. Dist., OCR Case No. 09-12-1095, at 1 (Oct. 8, 2014), available at http://www2.ed.gov/documents/press-releases/downey-school-district- agreement.pdf. 281. Id. at 1. 282. Statement of Interest of the United States, at *4–5, Tooley v. Van Buren Pub. Schs., No. 2:14-cv-13466 (E.D. Mich. Feb. 20, 2015), ECF No. 60. 283. Id. at *8; see also id. at *11 (stating that the U.S. Department of Justice agrees that “an individual’s gender identity is one aspect of an individual’s sex”). 284. Tobin & Levi, supra note 275, at 309. 285. See generally id. (discussing the adverse psychological and physical effects of denying transgender people equal access to public facilities). 286. Id. (quoting Lake v. Arnold, 112 F.3d 682, 688 (3d Cir. 1997); citing Plessy v. Ferguson, 163 U.S. 537, 551 (1896); Plessy, 163 U.S. at 562 (Harlan, J., dissenting)). “If the concept of gender identity discrimination as sex discrimination is to have any real meaning for transgender people, it must protect a transgender girl’s ability to live in her community as a girl, and a transgender boy’s ability to live as a boy.” Id. at 310. 2015] Gender Identity Defines Sex 993

B. State Nondiscrimination Laws: Proper Interpretation of Gender Identity

When interpreting state nondiscrimination laws that protect on the basis of gender identity, courts and administrative bodies must first understand who transgender people are. In 2014, the Maine Supreme Court ruled in Doe v. Clenchy that forcing a teenage transgender girl to use a staff-only, non-communal restroom in isolation from her peers was a violation of the Maine Human Rights Law prohibiting discrimination on the basis of gender identity.287 In their opening brief, Gay and Lesbian Advocates and Defenders (“GLAD”), wrote simply: “Susan Doe is a girl. She is also transgender.”288 GLAD’s framing of the case allowed the court to see that the student’s female gender identity defined her sex and that treating her differently from other girls was the type of discrimination that the State law was meant to protect.289 This landmark decision followed the 2011 Maine Superior Court’s denial of a motion to dismiss a transgender woman’s claim for discrimination when a Denny’s restaurant told her not to use the women’s restroom until she provided proof of genital surgery.290 In another landmark decision in 2013, the Colorado Division of Civil Rights (“the Division”) found that a school discriminated on the basis of both sex and gender identity when it singled out Coy Mathis, a six-year-old transgender girl, and required she use the nurse’s bathroom rather than the girls’ bathroom.291 The Division rejected the school’s argument that sex is “biological” and separate from “gender,” noting the law’s evolution in understanding sex and gender as interchangeable.292 Notably, the Division also conducted its own independent research into the medical science of sex and the possible intersex variations, finding: “[R]esearch demonstrates that sex assignments given at birth do not accurately reflect the sex of a child, indicating that birth certificates may no longer constitute conclusive evidence of a child’s sex.”293 The Division found that Coy was a girl socially, legally, and medically for purposes of the law. As Tobin and Levi noted, in its letter issuing a probable cause determination, the Division

287. Doe v. Reg’l Sch. Unit 26, 2014 ME 11, ¶¶ 3, 9, 24, 86 A.3d 600 (Me. 2014). 288. Brief of Appellants John & Jane Doe as Parents & Next Friend of Susan Doe at 2, Doe v. Clenchy, 2014 ME 11, 86 A.3d 600 (No. PEN-12-582), 2013 WL 8351143, available at http://www.glad.org/uploads/docs/cases/doe-v-clenchy/2013-03-14-doe-v-clenchy-brief-of- appellants.pdf. 289. Reg’l Sch. Unit 26, 2014 ME 11, ¶ 22. 290. Denial of Motion to Dismiss at 1, Freeman v. Realty Res. Hospitality, LLC, No. CV 09- 199 (Me. Super. Ct. May 27, 2010). 291. Mathis, Charge No. P20130034X, at 7, 13–14 (Colo. Civil Rights Div. June 17, 2013) (determination), available at http://www.transgenderlegal.org/media/uploads/doc_529.pdf. 292. Id. at 10. 293. Id. at 6.

994 Vermont Law Review [Vol. 39:943 stated: “‘Telling [her] that she must disregard her identity while performing one of the most essential human functions constitutes severe and pervasive [disparate] treatment, and creates an environment that is objectively and subjectively hostile, intimidating or offensive.’”294 The Mathis matter is an important example of how medical science can provide clarity to a court or administrative body on how to properly apply protections on the basis of sex or gender identity. Some agencies and jurisdictions are taking the lead on better defining laws to ensure proper interpretation and avoid “biological sex blind spots.”

C. Policy Changes Defining Gender Identity as Determinant of Sex

Because of the difficulties transgender people face when courts and administrative bodies do not defer to the latest medical science, some jurisdictions and agencies have taken proactive steps to clarify that existing laws prohibit discrimination on the basis of “sex” or “gender identity.”

1. Clarification of Sex (Includes Gender Identity)

In light of the advances in Title VII case law to include transgender people—prohibiting discrimination on the basis of both sex stereotyping and the transition itself (i.e., the conversion theory of Schroer)—multiple federal agencies in the last several years have taken steps to clarify that their own workplace EEO policies protect workers on the basis of sex. Specifically, agencies have clarified that “sex” includes gender identity and that single-sex facilities, such as restrooms and locker rooms, should be used consistently with gender identity.295

294. Tobin & Levi, supra note 275, at 314 (alteration in original) (quoting Mathis, No. P20130034X, at 12). Similarly, in Jones v. Johnson County Sheriff’s Department, the Iowa Civil Rights Commission held that a transgender woman had a valid gender identity discrimination claim when she was singled out and denied access to the restroom in a courthourse. Id. at 313–14 (quoting and citing Jones v. Johnson Cnty. Sheriff’s Dep’t, CP No. 12-11-61830, at 8 (Iowa Civil Rights Comm’n Feb. 11, 2013) (finding of probable cause)). 295. For example, the Office of Personnel Management’s policy states “sex (includes gender identity and pregnancy)” and restroom use should be “consistent with one’s gender identity.” Diversity & Inclusion Reference Materials: Guidance Regarding the Employment of Transgender Individuals in the Federal Workplace, U.S. OFFICE OF PERSONNEL MGMT., http://www.opm.gov/policy-data- oversight/diversity-and-inclusion/reference-materials/gender-identity-guidance/ (last visited Apr. 14, 2015) (“agencies should allow access to restrooms and (if provided to other employees) locker room facilities consistent with his or her gender identity”). For other examples, see 41 C.F.R. § 60-1.8 (2014) available at http://www.dol.gov/ofccp/LGBT/OFCCP_LGBT_Rule%20Final_12114_JRF_QA_ 508c.pdf (noting that sexual orientation and gender identity are now included in the list of reasons employers cannot use to discriminate); OFFICE OF FED. CONTRACT COMPLIANCE PROGRAMS, DEP’T OF LABOR, DIRECTIVE 2014-02: GENDER IDENTITY AND SEX DISCRIMINATION (2014), available at 2015] Gender Identity Defines Sex 995

2. Gender Identity (Defining Component of Sex)

In an effort to clarify the existing protections of sex and provide notice of their meaning, states and municipalities have passed explicit protections on the basis of gender identity. However, legislative drafting contributes to confusion by separating gender identity from sex, leading to a “biological sex blind spot” in the case law.296 Some states and jurisdictions have attempted to address this problem by clarifying that: (1) sex includes gender identity; and (2) gender identity is an individual’s internal sense of their own sex and a definitive component of sex.297 This framing reflects the latest medical understanding of sex and leaves no room for discriminatory interpretation, or so-called “biological sex” carve-outs. In 2013, California passed Assembly Bill 1266, the School Success and Opportunities Act, which further clarified the already existing protections on the basis of gender identity to ensure that transgender students have access to single-sex facilities and can participate in sports regardless of their gender identity.298 Additionally, a number of jurisdictions have clarified, through guidance or regulation, that “sex” refers to gender identity for purposes of single-sex spaces, like school restrooms, and in places of public accommodation.299

http://www.dol.gov/ofccp/regs/compliance/directives/dir2014_02.html; Equal Employment Opportunity, CONSUMER FIN. PROT. BUREAU, http://www.consumerfinance.gov/equal-employment-opportunity/ (last visited Apr. 14,, 2015); Employment Polices, U.S. DEP’T OF THE TREASURY, BUR. OF PUBLIC DEBT, http://www.publicdebt.treas.gov/careers/policies.htm (last updated Jan. 6, 2014); and U.S. DEP’T OF THE INTERIOR, PERSONNEL BULLETIN NO: 13-03: TRANSGENDER AND OTHER GENDER NON-CONFORMING EMPLOYEE POLICY (2013), available at http://www.doi.gov/pmb/eeo/directives/upload/PB-13-03.pdf. 296. See McGowan, supra note 178 (analyzing Schroer and discussing “legal blind spots”). 297. See, e.g., Ann Arbor, Mich. Code of Ordinances tit. IX, ch. 112, § 9:151(12), (24), (25) (2014) (defining “gender identity” as “[a]n individual’s internal sense of their own sex, and a defining component of sex”; defining “sex” as “[i]nclud[ing], but . . . not limited to, an individual’s gender, gender identity, gender expression, pregnancy, childbirth, and medical conditions related to pregnancy or childbirth. An individual’s sex shall be defined by that individual’s gender identity; and use and/or occupancy of, access to and/or participation in sex-segregated facilities and/or entities shall be granted on that basis. Such sex-segregated facilities and entities include, but are not limited to, dwellings, housing, public accommodations, lavatories, locker rooms, instructional programs, athletic events and athletic teams”; and finally, defining “sexual harassment” to include “sex discrimination”). 298. The School Success & Opportunity Act, Assemb. B. 1266 (Cal. 2013), available at http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140AB1266. 299. See Tobin & Levi, supra note 275, at 310–11; see, e.g., Statement of Interest of the United States at *11, Tooley v. Van Buren Pub. Schs., No. 2:14-cv-13466 (E.D. Mich. Feb. 20, 2015), ECF No. 60).

996 Vermont Law Review [Vol. 39:943

V. NORMALIZING/LEGALIZING TRANSGENDER BODIES: DIFFERENCE WITHOUT SHAME

A. Privacy, but for Whom?

Despite recent gains and efforts to codify the proper interpretation of sex and the importance of gender identity, transgender people continue to face enormous difficulties in seeking legal recognition and respect. In this subpart, I discuss ways that courts often reinforce a cisgender norm and privilege certain perspectives and bodies over others. In the discrimination context, courts have carved out an exception for restroom-use based on a misunderstanding that “biological sex” and gender identity are separate. These opinions often focus on the imagined experience of a cisgender person sharing a restroom with a transgender person, and center on the cisgender person’s comfort or feeling of safety in the presence of a transgender person. For example, “the [Etsitty] court stated that because the employer ‘was nevertheless genuinely concerned about the possibility of liability and public complaints . . . [t]he question of whether UTA was legally correct about the merits of such potential lawsuits is irrelevant.’”300 The court’s offensive view that transgender people are less valued than cisgender people privileges the cisgender experience over the transgender experience. And, rather than considering the well- documented safety risks (e.g., the high rate of murders of transgender people, particularly of women of color) or the well-being of transgender people, whose medical treatment is to live in their affirmed gender,301 often courts concern themselves with the potential prejudice that others manifest.302 These arguments send a message to transgender people—and reinforce with cisgender people—that there is something inherently flawed about a transgender person’s existence or body. Courts assume and legitimize that the general public have “an aversion to sharing a restroom with a transgender person.”303 This presumption is incredibly harmful and damaging to transgender people who are already struggling to find the

300. Tobin & Levi, supra note 275, at 320 (quoting Etsitty v. Utah Transit Auth., 502 F.3d 1215, 1227 (10th Cir. 2007)). 301. The importance of which cannot be understated. See supra notes 59–75 and accompanying text. 302. See Tobin & Levi, supra note 275, at 316 (“A commonly asserted justification for discrimination against transgender people in gender-specific settings is that such discrimination is necessary to protect the privacy interests of others who are uncomfortable with the presence of a transgender person.”). 303. See id. at 320 (discussing this assumption in Etsitty). 2015] Gender Identity Defines Sex 997 courage each day to be their true selves and find some shred of dignity in a world that marginalizes their existence. This struggle is compounded when courts find that it is not discriminatory for their employer to deny them the use of the restroom based on a misunderstanding of their identity and other peoples’ level of comfort. As Levi and Tobin point out, these arguments, however regularly made, are legally unsound.304 In Cruzan v. Special School District #1, the court rejected a cisgender woman’s claim that her personal privacy was violated when her employer permitted a transgender coworker to use the gender-appropriate restroom.305 And, the recent federal agencies’ involvement in cases about transgender students highlights that “generalized concerns about safety and privacy” do not justify denial of access to facilities based on gender identity.306 While many people—not just transgender people—might enjoy increased privacy options,307 courts have recognized a constitutional right to privacy for transgender people, specifically with regard to medical

304. Id. at 316–20. Compare Etsitty, 502 F.3d at 1224 (noting that an employer’s worries about cisgender customers’ reactions to sharing a restroom with a transgender person is a sufficient reason for terminating transgender person), with Glenn v. Brumby, 663 F.3d 1312, 1321 (11th Cir. 2011) (“Brumby advances only one putative justification for Glenn’s firing: his purported concern that other women might object to Glenn’s restroom use. . . . The fact that such a hypothetical justification may have been sufficient to withstand rational-basis scrutiny, however, is wholly irrelevant to the heightened scrutiny analysis that is required here.”). For further support that the argument is legally unsound, see Ricci v. DeStefano, 557 U.S. 557, 563 (2009) (holding that fear of third-party litigation cannot constitute a legitimate nondiscriminatory motive absent “a strong basis in evidence that, had it not taken the [challenged] action, it would have been liable” to third parties); Fernandez v. Wynn Oil Co., 653 F.2d 1273, 1276–77 (9th Cir. 1981) (citing Diaz v. Pan Am. World Airways, Inc., 442 F.2d 385, 389 (5th Cir. 1971), cert. denied, 404 U.S. 950 (1971)) (stating that a female employee could not be fired simply because certain foreign clients would only work with men); Schroer v. Billington, 577 F. Supp. 2d 293, 302 (D.D.C. 2008) (stating that if an employer defers to the biases of others, he is acting discriminatorily, “no less than if [he] act[ed] on behalf of his own prejudices”); EEOC Decision No. 78- 47, 1978 WL 5798, at *3 (Oct. 2, 1978) (concluding company discriminated under Title VII when it refused to hire a white, female truck driver because African-American employees of the company were uncomfortable riding with a white woman through predominantly African-American areas). 305. Tobin & Levi, supra note 275, at 317–18 (citing Cruzan v. Special Sch. Dist. #1, 294 F.3d 981, 983–84 (8th Cir. 2002)). 306. See id. at 316 n.80 (quoting Letter from Anurima Bhargava, Chief of Educ. Opportunities Section, Civil Rights Div., U.S. Dep’t of Justice, & Arthur Zeidman, Dir. San Francisco Reg’l Office, Office for Civil Rights, U.S. Dep’t of Educ., to Asaf Orr, Nat’l Ctr. for Lesbian Rights 3 (July 24, 2013), available at http://www.scribd.com/doc/155984958/Arcadia-Notification-Letter); see also Mathis, Charge No. P20130034X, at 13 (Colo. Civil Rights Div. June 17, 2013) (determination), available at http://www.transgenderlegal.org/media/uploads/doc_529.pdf (rejecting school district’s argument that allowing a student who is a transgender girl to use the girls’ bathroom posed safety concerns). 307. See, e.g., Tobin & Levi, supra note 275, at 325 (“Just as students with other physical differences, such as different stages of sexual development, visible disabilities or medical devices, or unusual scars or skin conditions, must be treated equally, so much transgender students.”).

998 Vermont Law Review [Vol. 39:943 privacy.308 However, as illustrated above, courts, like the general public,309 feel that transgender people’s bodies are fair game for discussion and dissection310 and demand that transgender people disclose intimate details about their bodies, which courts then analyze through a cisgender lens of what is considered “normal.”311

B. Dissecting Transgender Bodies: Disclosure and Legitimacy

The question of whether a transgender person is a “legitimate man or woman” is inherent in the expectation that transgender people disclose intimate details about their bodies, functions, and sexual practices. The “‘body-parts’ checklist”312 is really just an inventory to determine whether a transgender person is man or woman “enough” and is an effort to detect what Sharpe calls “interpersonal fraud.”313 In her article questioning the legal obligation to disclose one’s “gender history” prior to marriage under the U.K.’s Gender Recognition Act of 2004,314 Sharpe addresses the underlying problem:

The assumption, implicit within the non-disclosure provision, that non-disclosure of gender history represents a form of harm, appears to be an effect of law’s inability to suspend its disbelief about bodies it has otherwise incorporated within social and legal order. This difficulty points to the transphobia and/or homophobia of law. . . .

308. Id. at 317 (“In recognizing this right, the U.S. Court of Appeals for the Second Circuit has stated that ‘[t]he excru[c]iatingly private and intimate nature of transsexualism, for persons who wish to preserve privacy in the matter, is really beyond debate.’” (quoting Powell v. Schriver, 175 F.3d 107, 111 (2d Cir. 1999))); see also id. at 317 n.84 (“We now hold . . . that individuals who are transsexuals are among those who possess a constitutional right to maintain medical confidentiality.” (quoting Powell, 175 F.3d at 112)). 309. See, e.g., Mey, Flawless Trans Women Carmen Carrera and Laverne Cox Respond Flawlessly To Katie Couric’s Invasive Questions, AUTOSTRADDLE (Jan. 7, 2014, 5:00 AM), http://www.autostraddle.com/flawless-trans-women-carmen-carrera-and-laverne-cox-respond- flawlessly-to-katie-courics-invasive-questions-215855 (“Things started to seem a little odd when the viewers kept being reminded about Carrera’s transition by being shown pictures of her in bandages and mentions of her transition at every chance.”); Dan Savage, When Should a Transgender Person Disclose?, METROTIMES (Apr. 2, 2014), http://www.metrotimes.com/detroit/when-should-a- transgender-person-disclose/Content?oid=2143827. 310. See Flynn, supra note 117, at 37 (discussing court’s use of the “body-parts” checklist). 311. See supra Part V.B. 312. See supra note 159 and accompanying text. 313. Sharpe, supra note 103, at 50. 314. See id. at 47, 52 (arguing that the legal requirement to disclose “gender history” prior to marriage is discriminatory and encroaches on the right to privacy guaranteed by Article 8 of the European Convention on Human Rights). 2015] Gender Identity Defines Sex 999

This idea of transgender bodies, and particularly sexual congress with them, as evoking legal horror is an important one in understanding the gender history provision.315

The U.K. law reinforces the notion that transgender bodies are available for public discourse (that everyone should be able to weigh in on whether one is truly a man or a woman), placing transgender people in the position of constantly defending their identity, and privileging cisgender opinions over theirs.316 Rather than viewing transgender status as medically private information, the U.K. law privileges cisgender people’s reactions and opinions.317 For example, transgender people are seen as “a source of sexual danger.”318 Notably, the law applies only to transgender people and, not intersex people, based on what Sharpe calls a “nature/artifice dyad.”319 Legitimizing transgender people’s existences requires both leveling expectations of privacy for transgender and cisgender bodies and viewing transgender bodies as equally acceptable and fully human under the law. If the law takes into account the current medical science that defers to gender identity as the key determinant of sex, the law must allow for the range of human variation and must refrain from privileging certain bodies over others by enforcing a cisgender standard as a “norm.” Even if the general public does not fully understand the etiology of sex, courts must account for the variations in factors that comprise a determination of sex, how common those variations are, and why gender identity is considered the core determinant of sex.320 Courts should not rely on popular opinion of what constitutes sex, while ignoring medical reality. The lives of many people, transgender and intersex, are at stake. The general assumption that all bodies in single-sex spaces, like restrooms or locker rooms, are similar is something that many people do not consciously reflect upon, but when the assumption is evaluated, it

315. Id. at 40–41. 316. Cf. id. at 40 (arguing that the U.K.’s “gender history” disclosure law is premised on the assumption that “a transgender woman is really not a woman”); Savage, supra note 311 (discussing how cisgender people are not held to the same expectation). 317. See supra Part V.A. 318. Sharpe, supra note 103, at 43. 319. Id. at 42; see supra Part III.D. 320. See Greenberg, Roads Less Traveled, supra note 17, at 51–52 (arguing that “legal sex” should “reflect scientific developments”); Flynn, supra note 117, at 34 (arguing that “gender identity” should be the “defining basis for determining legal sex”); cf. Tobin & Levi, supra note 275, at 325 (discussing how the “very purpose of nondiscrimination laws” is to protect against norms and stereotypes and “[a]dopting and institutionalizing social discomfort with a specific group has the opposite effect of reifying the underlying social norms that give rise to the discriminatory attitudes in the first place”).

1000 Vermont Law Review [Vol. 39:943 becomes clear that the assumption is rooted in sex-stereotypes321 about what an idealized or average woman or man ought to look like.322 Most considerations of sex stereotyping stop at clothing, appearance, and mannerisms (i.e., gender role or expression). The law is clear that discrimination on the basis of sex includes sex stereotyping, specifically whether the way a person looks or acts meets expectations about what is “normal” according to the binary gender.323 Sex stereotyping is not always limited to outward expressions or mannerisms, but also includes body characteristics and traits that are not considered “typical” for a man or a woman.324 Many people who do not fit gender stereotypes are subject to “gender- policing” when accessing single-sex spaces.325 But “bathroom panic” concerns go beyond people’s appearances. The offense is not that transgender people are insufficiently male or female for that space; rather, the panic stems from the fear of different bodies326 and people’s refusal to acknowledge or validate that a transgender woman is actually a woman, or a transgender man is actually a man. In other words, a transgender person could fit all of the stereotypes of how a woman or man should look and act,

321. See M.T. v. J.T., 355 A.2d 204, 206 (N.J. Super. Ct. App. Div. 1976) (“[JT’s] vagina had a ‘good cosmetic appearance’ and was ‘the same as a normal female vagina after a hysterectomy.’”); In re Marriage of Kantaras v. Kantaras, No. 98-5375CA at 49–52, 309 (Fla. Cir. Ct. Feb. 21, 2003), available at http://www.transgenderlaw.org/cases/kantarasopinion.pdf (summarizing how trial court refused to call Mr. Kantaras’s penis a penis even after Mr. Kantaras affirmed that this is the language he uses). 322. See Tobin & Levi, supra note 275, at 324 & n.131 (discussing specific discomfort with trans people’s bodies, including depictions of trans bodies as “monstrous”); see also supra note 126 (Kantaras discussing Littleton); Glenn v. Brumby, 663 F.3d 1312, 1320 (11th Cir. 2011) (“In this case, Brumby testified at his deposition that he fired Glenn because he considered it ‘inappropriate’ for her to appear at work dressed as a woman and the he found it ‘unsettling’ and ‘unnatural’ that Glenn would appear wearing women’s clothing.”). 323. See Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989) (noting that Congress intended to do away with all discrimination based on gender, including discrimination based on gender stereotypes). 324. Cf. Kylie Byron, Note, Natural Law and Bona Fide Discrimination: The Evolving Understanding of Sex, Gender, and Transgender Identity in Employment, 6 WASH. U. JURISPRUDENCE REV. 343, 357–69 (2014) (arguing that gender identity, rather than biology alone, is the only logical method of determining a “Bona Fide Occupational Qualification (BFOQs)” and that “sex-based BFOQs . . . are structures that both actively endorse and further violence and oppression”). 325. See Jody L. Herman, Gendered Restrooms and Minority Stress: The Public Regulation of Gender and Its Impact on Transgender People’s Lives, 19 J. PUB. MGMT. & SOC. POL’Y 65, 65–66 (2013), available at http://williamsinstitute.law.ucla.edu/wp-content/uploads/Herman-Gendered- Restrooms-and-Minority-Stress-June-2013.pdf (discussing American policies of gender segregation in public facilities). 326. See Green, supra note 15, at 29–30 (discussing transphobia). 2015] Gender Identity Defines Sex 1001 but the repulsion comes in reaction to their bodies or gender histories being somehow different.327 While cisgender bodies may be considered most common, they are not the only bodies, and certainly not the only bodies entitled to protection or respect under the law. The notion that cisgender bodies are somehow “normal” is entrenched in the law and creates a legal hierarchy of recognition and treatment.328 Transgender bodies are considered “monstrous” and “unnatural”; cisgender bodies are privileged as the standard.329 Although in reality a range of bodies exist, the U.S. legal system still requires everyone to fit into a binary category of male or female to enjoy the full rights and privileges of personhood under the law. However, there is no requirement that bodies look or function a certain way to be recognized as male or female—to qualify as “normal” or “enough.” As Professors Greenberg and Herald note, if that were the case, many cisgender people might fall outside of the categories because of breast or penis size for example.330 Which bodies get to be male? Which bodies get to be female? If you take away a certain body characteristic, for example, if a woman has a mastectomy, does that take away her legal status as a woman? Courts have no business in doing a “‘body-parts’ checklist.”331 Nor should they violate one’s body by prying into the appearance and function of one’s genitals or how one uses them to have sex. They should not ask a cisgender man the length of his penis or a cisgender woman the size of her breasts. Yet, transgender bodies are somehow placed in a separate category for display and assessment in the courtroom, using sex stereotyping as a compass. For example, for one to have the legal status of male, one must have the following combination: XY chromosomes; chest hair; testicles; deep voice; and a phallus that is more than one inch at birth (stretched) and

327. Cf. Sharpe, supra note 103, at 35–36 (discrediting the assumption that failure to disclose gender history prior to marriage will result in some type of “harm” upon discovering that the body or history of the non-disclosing partner is somehow different). 328. See Green, supra note 15, at 83 (“[F]or trans people the issue is not that bodies need to be understood as similar, but they must be recognized as different. This difference must not be made qualitative such that trans bodies are valued as inferior to non-trans bodies. All bodies must be valued as intrinsically equal.”). 329. See supra note 324. 330. See Greenberg & Herald, supra note 36, at 869–70 (arguing that, in rejecting scientific development, courts are engaging in sex stereotyping). Greenberg and Herald analogize, “if a state adopted a test for the determination of sex that defined men according to the size of their penises and women according to the size of their breasts, it would undoubtedly fail even the rational basis test. ” Id. at 870. 331. See supra note 159 and accompanying text.

1002 Vermont Law Review [Vol. 39:943 completely functioning sexually, meaning large enough to have intercourse with a vagina. 332 During the Kantaras trial, the court asked Mr. Kantaras if he refers to his genitals as his penis.333 In spite of his affirmative answer, the court went on to refer to his body as “his enlarged clitoris.”334 The court refused to acknowledge his genitals as a penis by refusing to use the language that he used to refer to his own body.335 Mr. Kantaras testified that his penis “might not be a ‘standard-sized penis as everyone wants to call it, but it does function. You have feeling there. You can urinate. And that’s why I don’t have the problem that everybody seems to be—hung up on that I don’t have a standard size penis.’”336 To affirm transgender people’s existence, the law must grasp that sex is multi-faceted and must look to gender identity. If gender identity is the decisive legal component for sex, then self-identity defines the rest of the body, and the legal recognition and affirming language must follow. There is no need to dissect a person’s private bodily integrity to satisfy a court’s purported need to find an individual masculine or feminine enough.

C. Respecting and Affirming: A Body Positive Approach

Even well-meaning transgender allies might say, “[i]t doesn’t matter what is in your pants,” in an effort to provide acceptance to a transgender person. While the statement appears to reassure a person that he or she will not be judged on difference, it can also be viewed as dismissive of the bodies that transgender people do have. In fact, it does matter what is in your pants—all bodies matter. That said, legal or social validation should not hinge on how a body looks. Language is important for affirming a transgender person, and language must be led by the person with that body.337 The importance of language extends to correct names, pronouns, and also to labeling body

332. See Greenberg & Herald, supra note 36, at 828–29 & n.35 (citing Dreger, A History of Intersexuality, supra note 228) (discussing “‘normal’ genitalia” for men under majority protocol). 333. In re Marriage of Kantaras v. Kantaras, No. 98-5375CA, at 51 (Fla. Cir. Ct. Feb. 21, 2003), available at http://www.transgenderlaw.org/cases/kantarasopinion.pdf. 334. Id.; see also Flynn, supra note 118 (discussing the Kantaras case on Court TV); cf. M.T. v. J.T., 355 A.2d 204, 206 (N.J. Super. Ct. App. Div. 1976) (“Plaintiff[’s] . . . vagina had a ‘good cosmetic appearance.’”). 335. See, e.g., Kantaras, No: 98-5375CA, at 309 (referring to Mr. Kantaras’s penis as “an enlarged clitoris”). 336. Id. at 51–52. 337. See Langer, supra note 56, at 70 (“There can be enough of a match up for language to bridge what is missing or in the way.”). 2015] Gender Identity Defines Sex 1003 parts.338 If we afford legal recognition to people through identity documents, there is no reason to deny social recognition to the language used to describe their experience of gender and their bodies. Even if a court must decide which binary gender most suits a person,339 there is no reason for judicially labeling or stripping a transgender or intersex person of dignity, as the court did to Mr. Kantaras. Many transgender people need surgery340 to bring their bodies into alignment with their gender identity; but legal, medical, and social affirmation of gender identity should not depend on the presence of primary or secondary sex characteristics or the shape of one’s genitals. A transgender person may experience those body parts according to their brain sex, not based on other people’s idea of whether they are male or female enough.341 Moreover, labeling body parts according to a cisgender body norm (e.g., genitals must look a certain way to be male or female, she is a transgender woman with “male anatomy,” he is “female-bodied”) relies on sex stereotyping. If gender identity is core and immutable, courts must refrain from dissecting a transgender person’s body. If a sex determination is necessary for legal purposes, the courts should rely upon the medical standard that appropriately elevates gender identity above all other components and recognizes that treatment may not warrant or accomplish a precise alignment of stereotypical (cisgender-typical) body parts. It is possible for transgender people to have equal status under the law and to enjoy the rights and privileges that others enjoy. One such privilege is having their self-identity and language about their bodies respected. When advocating for equal access to restrooms, arguments often hinge on an “assumption of shame.” These arguments presume, for example, that transgender people will prefer to stay clothed—as if there is inherent shame in having a body that is somehow different from the cisgender norm (which

338. See, e.g., Jameson v. Donahoe, EEOC Decision No. 0120130992, 2013 WL 2368729, at *2 (May 21, 2013) (“Intentional misuse of the employee's new name and pronoun may cause harm to the employee, and may constitute sex based discrimination and/or harassment.”); supra notes 1–10 and accompanying text (discussing Donisha McShan’s experience). 339. See Wallbank, supra note 18, at 483 (“The task of the law in determining the sex of a person . . . is not that of determining the person’s ‘true sex’ or predominant biological sex, but rather the sex, male or female, into which the person best fits having regard to the sexually differentiated characteristics of the person, the person’s ability to function and live in either sex, the person’s gender expression as well as cultural expectations of what it means to be a man/male or a woman/female person . . . .”). 340. Even with surgery, “[t]he body must ultimately be accepted as an imperfect project. ‘Ambiguity is of the essence of human existence.’” Langer, supra note 57, at 70 (quoting M. MERLEAU- PONTY, PHENOMONOLOGY OF PERCEPTION 169 (Colin Smith trans., Routledge 1996)). 341. See Langer, supra note 56, at 69 (“Once the process begins of the individual recognizing the individual’s own gender identity by connecting to this internal sense of self and awareness of how that clashes with public perception is when the individual considers modifications.”).

1004 Vermont Law Review [Vol. 39:943 is likely not “achieved” by many cisgender individuals). The law should question and reject this assumption of shame. Transgender people have the right to live without fear or shame. Full equality requires a level of comfort with a range of bodies that might not fit the cisgender ideal.342 Transgender people have a right to exist and be fully recognized under the law in every respect.

CONCLUSION

In U.S. courtrooms, transgender people face a “legal shredding of self.”343 This happens regardless of their efforts to come to terms with themselves, their struggles to explain who they are to friends and loved ones, and the medical processes they have endured. Furthermore, courts violate, shame, and ridicule transgender people and their bodies and refuse to recognize transgender people as people. So long as a legal binary gender system exists in the United States, it is critical that transgender people receive legal validation and have access to the rights and privileges they deserve. Transgender people deserve to have their identities affirmed by the law. They deserve to have their privacy respected, not their bodies dissected. The most protective method for the courts to use is also the most legally and medically sound: Sex is multifaceted, and of the multiple factors that determine sex, gender identity must be given primary weight, as the single most important biological determinant of sex.

342. See Tobin & Levi, supra note 275, at 324–26 (“Adopting and institutionalizing social discomfort with a specific group has the . . . effect of reifying the underlying social norms that give rise to the discriminatory attitudes in the first place.”). 343. Flynn, supra note 117, at 32. National LGBT Bar Association

Lavender Law 365

M. Dru Levasseur, Esq. Deputy Program Officer Pronouns: he/him/his [email protected] National LGBT Bar Association GA State Bar CLE Oct 2019

Strategic Leadership Press

Lambda Legal, TLDEF, Jim Collins Foundation, New New York Times, Washington Post, CBS, AP, England Trans Pride Reuters, People Magazine

International Policy Work Presentations

World Health Organization, International Network Spoken at dozens of law schools and workplaces of Civil Liberties Organizations including: National LGBT Bar National LGBT Bar Association GA State Bar CLE Oct 2019

Lavender Law 365 Value all people every day

The National LGBT Bar Association’s new LGBTQ+ inclusion coaching & consulting for Law Firms, Law Schools and Workplaces National LGBT Bar Association GA State Bar CLE Oct 2019

National Transgender Rights Advocacy Population & Discrimination Statistics National LGBT Bar Association GA State Bar CLE Oct 2019

1.4 Million Adults

Source: Williams Institute, 2016 National LGBT Bar Association GA State Bar CLE Oct 2019 2015 U.S. Trans Survey

● 40 % attempted suicide rate

● 10% experienced violence from family Sexual Orientation and Gender members Identity ● 54% verbal harassment; 24% physically attacked; 13% sexually assaulted in schools (K- 12)

● 29% living in poverty v. 12% US population

● 3 times unemployment rate

● 5 times rate of HIV

Source: USTS, 2016 (n=27,715) National LGBT Bar Association GA State Bar CLE Oct 2019

The Compounding Impact of Other Forms of Discrimination National LGBT Bar Association GA State Bar CLE Oct 2019

#RaceAnd Video Series Transgender Rights Issue Areas National LGBT Bar Association GA State Bar CLE Oct 2019 Trans Rights Toolkit ● Equal Access to Public Restrooms ● Transition-Related Health Care ● Survival Tips for Trans Youth ● Trans Aging: We're Still Here! ● Transgender Parents ● Workplace Rights & Wrongs ● Identity Documents ● Transgender People and Marriage Laws ● Fighting Anti-Trans Violence ● Overcoming Health Care Discrimination ● Transgender Incarcerated People in Crisis ● Immigration Issues ● Transgender College Students National LGBT Bar Association GA State Bar CLE Oct 2019

Anti-Trans Violence

- November 20th is Transgender Day of Remembrance

- 26 murders in 2018

- 18 murders so far in 2019 (as of Sept 25) National LGBT Bar Association GA State Bar CLE Oct 2019

Federal Advocacy

● Equality Act

● Affordable Care Act

● Trans Military Ban

● Judicial Nominations National LGBT Bar Association GA State Bar CLE Oct 2019

State and Local Advocacy

● Nondiscrimination Generally ● Employment (beyond written policies) ● Housing (beyond written policies) ● Health - HIV, remove exclusions to care/coverage, suicide prevention ● Identity Docs ● Schools and Youth ● Criminal Justice and Judicial Systems National LGBT Bar Association GA State Bar CLE Oct 2019

Driver’s License Policy Map Source: Movement Advancement Project National LGBT Bar Association GA State Bar CLE Oct 2019

Birth Certificate Policy Map

Source: Movement Advancement Project Transgender Rights Litigation National LGBT Bar Association GA State Bar CLE Oct 2019

Barriers to Trans-Inclusion in the Courts

Etsitty v. Utah Transit Authority, 502 F.3d 1215 at 1222 (2007) (holding that Oncale does allow a trans plaintiff to bring a claim based on their sex, but that this only holds if they can show discrimination “because they are male” or “because they are female” – not because they are trans). National LGBT Bar Association GA State Bar CLE Oct 2019

Dehumanized When seeking legal recognition in the courts, and Dissected transgender people have Transgender people have been been dehumanized, have had judged defiant and worthy of their core, intimate aspect of punishment, immoral, fraudulent, mentally ill, their selves legally erased and delusional, medically wrong, or their bodies publicly dissected imaginary/nonexistent. for purported function and appearance. National LGBT Bar Association GA State Bar CLE Oct 2019

Nine factors used to determine sex

1. Chromosomes 5. Fetal Hormones 2. Gonads 6. Pubertal Hormones 3. External Morphologic Sex 7. Secondary Sex Characteristics 4. Internal Morphologic Sex 8. Sex of Assignment and Rearing

Most importantly… 9. Gender Identity or Brain Sex National LGBT Bar Association GA State Bar CLE Oct 2019 National LGBT Bar Association GA State Bar CLE Oct 2019

Case Highlights

Identity Docs - In Re Feldhaus - Zzyym v. Pompeo - Foster v. Andersen

Health Care - Conforti v. St. Joseph’s Healthcare System - Ashley Diamond v. Brian Owens National LGBT Bar Association GA State Bar CLE Oct 2019

SCOTUS: Oct 8th

QUESTION PRESENTED:

Whether Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping under Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). National LGBT Bar Association GA State Bar CLE Oct 2019

Thank you.

M. Dru Levasseur, Esq. Deputy Program Officer Pronouns: he/him/his

National LGBT Bar Association and Foundation 202-637-7661 [email protected] lavenderlaw365.org FAIRNESS, SAFETY AND OPPORTUNITY FOR THE GEORGIA LGBT+ COMMUNITY

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The Economic Impact of Stigma and Discrimination against LGBT People in Georgia

Christy Mallory, Brad Sears, Eric R. Wright & Kerith Conron

January 2017

AUTHORS This report was primarily researched and authored by: Christy Mallory, JD, Anna M. Curren Fellow and Senior Counsel at the Williams Institute;

Brad Sears, JD, Associate Dean at UCLA School of Law and Executive Director and Roberta A. Conroy Scholar of Law and Policy at the Williams Institute;

Eric R. Wright, PhD, 2nd Century Initiative Professor of Sociology and Public Health and Chair of the Sociology Department at Georgia State University; and

Kerith Conron, ScD, Blachford-Cooper Research Director and Distinguished Scholar at the Williams Institute.

ACKNOWLEDGEMENTS In addition, the following scholars made substantial contributions to the paper: Taylor N.T. Brown, MA, Policy Analyst at the Williams Institute, assisted in analysis of the Georgia BRFSS data that is presented in the section on health disparities facing LGBT people, and contributed to the presentation of that data in the paper.

Jody L. Herman, PhD, Scholar of Public Policy at the Williams Institute, and Taylor N.T. Brown, MPP, Policy Analyst, researched and authored the economic impact of discrimination against transgender people in Georgia on Medicaid and housing programs and services.

This report was informed by an approach to understand the economic consequences of stigma and discrimination articulated in: M.V. LEE BADGETT, SHEILA NEZHAD, KEES WAALDIJK & YANA VAN DER MEULEN RODGERS, USAID & WILLIAMS INST., THE RELATIONSHIP BETWEEN LGBT INCLUSION AND ECONOMIC DEVELOPMENT: AN ANALYSIS OF EMERGING ECONOMIES 2 (2014).

We thank Adam P. Romero, Arnold D. Kassoy Scholar of Law and Senior Counsel at the Williams Institute, for his thoughtful review of this report.

TABLE OF CONTENTS

Executive Summary ...... 1 Section I. LGBT Population, Legal Landscape, and Social Climate ...... 7 A. LGBT People in Georgia ...... 7 1. LGBT Adults ...... 7 2. LGBTQ Youth ...... 9 B. Legal Landscape ...... 11 C. Public Opinion ...... 16 Section II. Approach to Analyzing Economic Implications of Stigma and Discrimination ..22 Section III. Economic Implications of Stigma and Discrimination in the Workplace and Other Settings ...... 25 A. Discrimination and Harassment against LGBT People ...... 25 1. Employment Discrimination ...... 25 2. Discrimination in Housing and Public Accommodations ...... 27 B. Wage Gaps ...... 28 C. Poverty ...... 30 D. Economic Impact of LGBT Stigma and Discrimination on Employers ...... 32 1. The Business Case for Diversity ...... 33 E. Illustration of Costs to the State Associated with Stigma and Discrimination ...... 38 Section IV. Economic Implications of Bullying and Family Rejection of LGBT Youth ...... 42 A. Bullying and Harassment of LGBT Youth ...... 43 1. Middle School & High School ...... 43 2. Higher Education ...... 44 B. Family Rejection ...... 45 C. Health Disparities Among LGBT Youth ...... 46 1. Depression and Suicidality ...... 48 2. Substance Use ...... 49 D. Economic Impact of Bullying and Family Rejection of LGBT Youth ...... 50 1. School Outcomes ...... 50 2. Overrepresentation in Foster Care, Juvenile Justice System, and among the Homeless Population ...... 52 Section V. LGBT Health Disparities ...... 54 A. LGB Health Disparities in Georgia ...... 54 B. Impact of Anti-LGBT Policies and Social Climates on LGBT Health ...... 58 C. Illustration of Economic Impacts of Increased Incidence of Major Depressive Disorder and Smoking ...... 62 1. Excess Costs Associated with LGBT Major Depressive Disorder ...... 64 2. Excess Costs Associated with LGBT Smoking ...... 65 Conclusion ...... 66

EXECUTIVE SUMMARY

In Georgia, LGBT people face a challenging legal landscape and social climate, which contribute to stigma and discrimination against LGBT people in the workplace, at school, in housing, and in public life. Stigma and discrimination have been linked to negative economic impacts on governments, businesses, and the economy. For example, stigma and discrimination against LGBT employees affect businesses by creating a workforce that is less productive, and by making it more difficult for employers to recruit and retain the most talented employees. In addition, stigma and discrimination can lead to economic instability and health disparities for individuals, which increase social safety net costs for the state, and impact the economy by reducing productivity and increasing health care costs. For example, in terms of increased social safety net costs, we estimate that workplace and housing discrimination against transgender people costs the State of Georgia approximately $1,048,000 in state Medicaid expenditures and $477,000 in homeless shelter expenditures each year. In addition, we estimate that reducing the disparity between LGBT and non-LGBT people in rates of major depressive disorder would benefit the state’s economy by $110.6 million to $147.3 million each year, and reducing the disparity in rates of smoking would benefit the state’s economy by $81.5 million to $108.6 million each year. We conclude that if Georgia were to move toward a more supportive environment for LGBT people, the state government, business, and the economy would likely benefit.

Georgia is home to over 300,000 LGBT adults State Rankings on LGBT Social & Political Climate Scores and 58,200 LGBT youth. LGBT people in the state face a challenging legal landscape and social climate. Statewide laws in Georgia offer no protections from discrimination on the bases of sexual orientation and gender identity in areas such as employment, housing, and public accommodations, and do not adequately protect LGBT youth from bullying in schools.

The state also lacks a number of protections for LGBT people that have been enacted in other states, such as an LGBT-inclusive hate crimes law and laws that facilitate family formation for same-sex couples. Only a few localities in Georgia extend protections from discrimination to LGBT people through local ordinances, and generally, only to municipal government employees. In terms of social environment, Georgia ranks 38th in the nation on public support for LGBT rights and acceptance of LGBT people.

Georgia’s unsupportive legal landscape and social climate contribute to an environment in which LGBT people experience stigma and discrimination. Research has linked several forms stigma and discrimination against LGBT people to negative economic effects on businesses and governments. In this study, we consider three forms of LGBT stigma and discrimination that have economic implications: discrimination in employment and other settings; bullying and family rejection of youth; and health disparities experienced by LGBT people. In our analysis, we provide data and research documenting the prevalence of each type of stigma and discrimination in Georgia, and describe how each form is likely to affect the state’s economy. We also provide several illustrations of the magnitude of economic impact, in terms of annual cost to the state’s economy, where we have state-level data that allow us to make these estimates.

Key findings include:

LGBT People in Georgia Experience Discrimination in Employment and Other Settings  The 2011 National Transgender Discrimination Survey found that 80% of the transgender respondents from Georgia reported experiencing harassment or mistreatment at work, 34% reported losing a Gender Identity Discrimination among 2011 National Transgender job, 26% reported being Discrimination Survey Respondents in Georgia denied a promotion, and 60% reported not being 60% hired because of their gender identity at some 34% 26% 24% point in their lives. In 15% addition, 23% reported becoming homeless because of their gender Denied Lost Job Not Hired Denied a Evicted Promotion Home or identity at some point in Apartment their lives. Discrimination in Employment Discrimination in Housing  A 2011 statewide survey of over 2,000 LGBT Georgians conducted by the Phillip Rush Center found that one-quarter of respondents reported experiencing employment discrimination because of their sexual orientation or

gender identity, and 45% reported that they had experienced homophobia, transphobia, or harassment at work within the year prior to the survey.  In addition, 48% of respondents to the 2011 Phillip Rush Center survey said they had experienced homophobia, transphobia, or harassment at a public establishment in the year prior to the survey; and 6% of respondents said that they had been denied housing in the past year because of their sexual orientation or gender identity.  Public opinion polling indicates that 82% of Georgia residents, non-LGBT and LGBT, believe that LGBT people experience discrimination in the state.  Discrimination against LGBT people in Georgia has also been documented in a number of court cases and the media. Instances of discrimination documented in these sources involve private and public sector workers in the state, including a security guard, a police officer, an automechanic, and state government employees.

LGBT People in Georgia Experience Economic Instability  Gallup polling data from 2012-2014 indicate that 36% percent of LGBT adults in Georgia reported having a household income below $24,000 compared to 28% of non- LGBT adults.  Gallup data further show that same-sex couples raising children have average household incomes of over $10,000 less than different-sex married couples raising children in Georgia.  In addition, nearly one-third of LGBT adults (32%) in Georgia reported that they do not have enough money for food compared to around one-fifth of non-LGBT adults (21%) in response to Gallup polls. Similar proportions of LGB and non-LGB people reported that they do not have enough money to meet their health care needs.  The 2011 National Transgender Discrimination Survey suggests that transgender people in Georgia are five times as likely to be poor and three times as likely to be unemployed as the general population in the state.  The Trans Housing Atlanta Program estimated that more than 2% of the city’s transgender residents are homeless.

Stigma and Discrimination against LGBT People in Employment and Other Settings Has Economic Consquences for Employers and the State Government  Productivity. Unsupportive work environments can mean that LGBT employees are less likely to be open about their sexual orientation or gender identity at work, and more likely to be distracted, disengaged, or absent, and to be less productive. These outcomes could lead to economic losses for state and local governments, as employers, and private businesses in the state. Given that nearly 200,000 workers in Georgia identify as LGBT, the loss in productivity from a discriminatory environment could be significant.  Retention. LGBT employees in less supportive work environments feel less loyal to their employers, and are more likely to plan to leave their jobs. Given the average replacement

costs of an employee, public and private employers risk losing $9,100, on average, for each employee that leaves the state or changes jobs because of an unsupportive environment in Georgia.  Recruitment. Many LGBT and non-LGBT workers, in particular those who are younger and more highly educated, prefer to work for companies with more LGBT-supportive policies, and in states with more supportive laws. To the extent that workers from other states perceive Georgia to be unsupportive of LGBT people, it may be difficult for public and private employers in the state to recruit talented employees from other places.  Public Benefits Expenditures. Discrimination in employment and housing can lead to hardships for individuals including lower earnings, underemployment or unemployment, and loss of housing, which in turn can lead to increased reliance on public benefits. As an illustration of how the state is impacted by the economic instability of LGBT residents, we estimate that discrimination in the workplace and in housing against transgender people annually costs Georgia approximately $1,048,000 in state Medicaid expenditures and $477,000 in homeless shelter expenditures.

LGBT Youth in Georgia Experience Bullying and Harassment at School  The 2015 Youth Risk Behavior Survey from DeKalb County Georgia, found that LGB students were more likely to report being bullied at school (20.8% v. 12.8%) and electronically bullied (12.0% v. 8.0%) in the 12 months prior to the survey than non-LGB students.  In addition, LGB students in DeKalb County were more likely than non-LGB students to report missing school because they felt unsafe at least once in the month prior to the survey (13.9% v. 8.7%).  The 2011 National Transgeder Discrimination Survey found that 83% of respondents who identified as transgender while in grades K-12 reported experiencing harassment at school, and 39% reported experiencing physical assault at school because of their gender identity.  The 2011 Phillip Rush Center Survey found that 46% of respondents had been harassed or bullied when they were in middle or high school.  A 2016 campus climate report based on a survey of students, faculty, and staff at the University of Georgia found that 65% of the transgender and genderqueer respondents reported experiencing exclusionary, intimidating, offensive, or hostile conduct on campus, and 47% of respondents who had experienced such conduct said that it was because of their gender identity.

LGB Youth in Georgia Experience Health Disparities  The 2015 Youth Risk Behavior Survey from DeKalb County, Georgia found that LGB students were over twice as likely to have seriously considered suicide in the year prior to the survey compared to non- LGB students (35.2% v. 12.9%).

 LGB students in DeKalb Depression and Suicidality among DeKalb County, Georgia, County were also more likely High School Students, by Sexual Orientation (Past 12 Months) than non-LGB students to report 46.8% smoking cigarettes (23.1% v. 35.2% 9.9%), drinking (33.0% v. 24.2% 19.2%), and using marijuana (27.8% v. 21.6%) in the month 11.6% 12.9% prior to the survey. 3.3%

Injury from suicide Seriously Felt sad or Bullying and Family Rejection of LGBT attempt requiring considered suicide hopeless for 2 Youth Negatively Impacts the Economy medical care weeks  Bullying and family rejection of LGB Non-LGB LGBT youth can cause them to miss or drop out of school, become homeless, or unemployed or underemployed.  In response to the 2011 National Transgender Discrimination Survey, of those respondents from Georgia who said they had been harassed in school, 25% reported that the harassment was so severe that they had to drop out of primary, secondary, or higher education.  A 2015 survey of homessless youth in Atlanta found that 28.2% of the respondents identified as LGBT, far exceeding the proportion of LGBT youth in the general adolescent population.  School drop-out and homelessness that arise due to bullying and family rejection are harmful not only to individual LGBT youth, but also have societal consequences in that they reduce the capacity of these youth to contribute to the economy as adults.  In addition, school-based harassment and family rejection can increase costs to the state via Medicaid expenditures, incarceration, and lost wages. The Jim Casey Foundation has estimated that homelessness, juvenile justice involvement, and poor educational and employment outcomes cost nearly $8 billion per cohort that ages out of foster care each year in the U.S. The best available data suggest that LGBT youth make up one-fifth, if not more, of each annual aging out cohort.

LGBT People Experience Health Disparities  Research indicates that a lack of legal protections and a less favorable social climate for LGBT people contribute to adverse health outcomes for LGBT people such as major depressive disorder and smoking.

 LGB adults in Georgia who completed the 2015 Health Characteristics of Adults in Georgia, by Sexual Orientation Behavioral Risk Factor 49.7% Surveillance System (BRFSS) 7.6 survey were significantly more 34.4% likely to have been disagnosed 18.4% 3.6 17.6% with a depressive disorder by a health care professional than non-LGB adults who completed Health care Average number of Current smoker the survey (49.7% v. 18.4%). professional ever days during past 30 In addition, LGB adults were told has depressive days mental health significantly more likely to disorder not good smoke than non-LGB adults on LGB Non-LGB the 2015 BRFSS survey (34.4% v. 17.6%).

Health Disparites for LGBT People in Georgia Cost Hundreds of Millions of Dollars Each Year  A more supportive legal landscape and social climate for LGBT people in Georgia is likely to reduce health disparities between LGBT and non-LGBT people which would increase worker productivity and reduce health care costs.  We estimate that reducing major depressive disorder and smoking among LGBT people in Georgia by 25% to 33.3% could benefit the state’s economy by $192.1 to $255.9 million in increased productivity and reduced health care costs each year. To the extent that a more supportive legal landscape and social climate would reduce other health disparities, the state’s economy would benefit even more.

Reduction in Costs Associated with Major Depressive Disorder and Smoking in Georgia if LGBT Disparity Were Reduced Reduction in disparity between LGBT Annual LGBT and Non-LGBT individuals reduction in Health Characteristic Georgians impacted costs (millions) Major Depressive Disorder 25%-33.3% 7,444-9,916 $110.6-$147.3 Smoking 25%-33.3% 12,633-16,827 $81.5-108.6

Georgia’s legal landscape and social climate for LGBT people is contributing to a discriminatory environment in the workplace, at school, in housing, and in public life—creating economic and health disparities for LGBT people in the state. If the state were to move toward creating a more supportive environment for LGBT people, it would likely lead to the economic advantages that result from inclusion of its LGBT residents.

SECTION I. LGBT POPULATION, LEGAL LANDSCAPE, AND SOCIAL CLIMATE IN GEORGIA

Georgia is home to an estimated 300,000 LGBT adults and approximately 58,200 LGBT youth who reflect the diversity of the state’s overall population. There are few legal protections for LGBT people in Georgia.1 Additionally, the state is ranked 38th in the nation on LGBT social climate (as measured by public support for LGBT rights and acceptance of LGBT people).2 However, despite this standing, public opinion polls also show that a majority of Georgians support extending discrimination protections to LGBT people.3 A. LGBT People in Georgia

1. LGBT Adults in Georgia

Georgia is home to over 300,000 LGBT adults (3.9% of adults self-identify as LGBT)4, including 55,650 (0.75%) transgender adults.5 About 170,000 LGBT adults, live in the Atlanta metropolitan area (4.2% of the metropolitan population).6 They are diverse across many socio- demographic characteristics, including age, sex, race-ethnicity, and the presence of children in the household.

 Representative data from the combined 2012-2014 Gallup Daily Tracking Surveys indicate that LGBT adults in Georgia, like LGBT adults elsewhere in the South and across the United States, are younger than non-LGBT adults.7 As shown in Table 1 below, over half of LGBT adults in Georgia are under the age of 40.

 Approximately half of both LGBT and non-LGBT adults are female.

1 See Section I.B., infra for a discussion of the legal landscape for LGBT people in Georgia. 2 See Section I.C., infra for a discussion of public opinion on LGBT issues in Georgia. 3 Andrew R. Flores, Jody L. Herman & Christy Mallory, Transgender Inclusion in State Non-Discrimination Policies: The Democratic Deficit and Political Powerlessness, _ RESEARCH & POLITICS 1 (Oct. – Dec. 2015). 4 LGBT Data & Demographics: Georgia, Williams Inst., http://williamsinstitute.law.ucla.edu/visualization/lgbt- stats/?topic=LGBT&area=13#density (last visited Oct. 12, 2016) (percentage of adults in Georgia identifying as LGBT). Total adult population in the state is 7,712,446. For total adult population: search American FactFinder, http://factfinder.census.gov/faces/nav/jsf/pages/index.xhtml (last visited Oct. 19, 2017) (select advanced search, enter "Population by Single Year of Age and Sex" under topic or table name and "Georgia" under state, county or place, select "Annual Estimates of the Resident Population by Single Year of Age and Sex for the United States, States, and Puerto Rico Commonwealth: April 1, 2011 to July 1, 2015" 2015 estimates). 5 ANDREW R. FLORES, JODY L. HERMAN, GARY J. GATES & TAYLOR N.T. BROWN, WILLIAMS INST., HOW MANY ADULTS IDENTIFY AS TRANSGENDER IN THE UNITED STATES? 2 (2016), http://williamsinstitute.law.ucla.edu/wp- content/uploads/How-Many-Adults-Identify-as-Transgender-in-the-United-States.pdf. 6 Frank Newport & Gary J. Gates, San Francisco Metro Area Ranks Highest in LGBT Percentage, GALLUP.COM, Mar. 20, 2015, http://www.gallup.com/poll/182051/san-francisco-metro-area-ranks-highest-lgbt- percentage.aspx?utm_source=Social%20Issues&utm_medium=newsfeed&utm_campaign=tiles. 7 LGBT Data & Demographics: Georgia, Williams Inst., supra note 4.

 Over half of LGBT adults in Georgia are people of color, including 28% African American/black, 8% Latino/a, 3% Asian, Pacific Islander, American Indian or Alaska Native, and 14% identified as another race or other.

Table I.a. Weighted Characteristics of Georgia Adult Participants in the 2012-2014 Gallup Daily Tracking Surveys by LGBT and non-LGBT Status (N=10,741)8 LGBT (n=358) nonLGBT (n=10,383) % % Age 18-24 30 13 25-39 26 26 40-64 35 46 65+ 9 15 Sex Female 49 51 Male 51 49 Race-ethnicity White 46 58 African-American/black 28 25 Latino/a or Hispanic 8 6 Asian, Pacific Islander, American 3 2 Indian, or Alaska Native Other 14 9 Children under 18 in Household 29 41

 Many LGBT adults in Georgia are raising children, in the context of same- and opposite- sex relationships, married and unmarried, and as single parents. Approximately 29% of LGBT adults in Georgia (87,000 individuals)9 and one in five same-sex couples are raising children.10 As of 2010, there were 21,320 same-sex couples living in Georgia;11 by 2018, 10,659 of these couples are likely to be married.12 While different-sex married couples are more likely to be raising children than same-sex couples, same-sex couples in the state are more likely to be raising adopted children (12%) than different-sex married couples (3%).13

8 Id. 9 Id. 10 Same-Sex Couple Data & Demographics: Georgia, Williams Inst., supra note 4. 11 Id. 12 JUSTIN M. O’NEILL, CHRISTY MALLORY & M.V. LEE BADGETT, WILLIAMS INST., ESTIMATING THE ECONOMIC BOOST OF MARRIAGE FOR SAME-SEX COUPLES IN GEORGIA 1 (2014), http://williamsinstitute.law.ucla.edu/wp- content/uploads/GA-Econ-Impact-Aug-2014.pdf. 13 Id. at 30, 31.

2. LGBT Youth in Georgia

The Youth Risk Behavior Surveillance System survey (YRBS) is a state-administered, school- based survey of health and health determinants that is managed by the Centers for Disease Control and Prevention (CDC). The YRBS is one of the few sources of data about LGB youth in grades 9 through 12. In 2016, the CDC released a report about the health and well-being of these youth from states and large urban school districts that included measures of sexuality from their 2015 YRBS survey.14 Questions that would make transgender youth participants identifiable on the YRBS have not yet been added to the survey.

Weighted estimates from the national YRBS indicate that 8.0% of youth in grades 9-12 identify as gay or lesbian (2.0%) or bisexual (6.0%) (see Figure 1.a.).15 While data were unavailable from the state of Georgia, data from the DeKalb County School District, a school district encompassing parts of the metropolitan Atlanta area, and one of the largest school districts in the U.S, indicate that a large minority of students in this county are LGB. An estimated 11.3% of youth in grades 9-12 in the DeKalb County School District identify as gay or lesbian (3.1%) or bisexual (8.2%) (see Figure 1.b.).

Figure I.a. Sexual Orientation of High School Figure I.b. Sexual Orientation of High School Students in the US (2015) Students in Dekalb County, GA (2015)

Not sure Not sure Bisexual 3.2% Bisexual 5.0% Gay or 6.0% 8.2% Lesbian 2.0% Gay or Lesbian 3.1%

Heterosexual Heterosexual (straight) (straight) 88.8% 83.7%

We estimate that there are approximately 58,200 LGBT youth in the state of Georgia, including almost 57,100 LGB youth (8%16,17 of 713,400 youth ages 13 to 17 in Georgia)18 plus an

14 See Sexual Identity, Sex of Sexual Contacts, and Health-Related Behaviors Among Students in Grades 9-12— United States and Selected Sites, 2015, http://www.cdc.gov/mmwr/volumes/65/ss/pdfs/ss6509.pdf 15 See id. 85 16 See Sexual Identity, Sex of Sexual Contacts, and Health-Related Behaviors Among Students in Grades 9-12— United States and Selected Sites, 2015, http://www.cdc.gov/mmwr/volumes/65/ss/pdfs/ss6509.pdf

9 additional 1,100 transgender youth who are straight/heterosexual (i.e., are not LGB). An estimated 4,950 youth ages 13 to 17 in Georgia are transgender.19 We estimate that 22% of these transgender youth identify as straight/heterosexual.20

Figure I.c. Estimates of the LGBT Youth Population of Georgia ages 13-17 Sources: National YRBS, 2015; Herman et al., 2016; American Community Survey, 2015

1,100 Transgender, non-LGB youth Transgender youth 3,850 Transgender, LGB youth

LGB Youth LGB, non-transgender youth 53,250

LGBT Youth, n = 58,200

LGB youth are more likely to be female than male. Among national YRBS participants, male and female students were equally as likely to identify as gay or lesbian (2.0%). However, a larger percentage of female students identified as bisexual than male students (9.8% versus 2.4%, respectively).

17 We assume the same distribution of sexual orientation across all youth in the state, including those who declined to answer this question on the YRBS and those who are not enrolled in school. 18 Population data (aged 13-19): search American FactFinder, http://factfinder.census.gov/faces/nav/jsf/pages/index.xhtml (last visited Nov. 9, 2016) (select advanced search, enter "Population by Single Year of Age and Sex" under topic or table name and "Georgia" under state, county or place, select "Annual Estimates of the Resident Population by Single Year of Age and Sex for the United States, States, and Puerto Rico Commonwealth: April 1, 2011 to July 1, 2015" 2015 estimates). 19 ANDREW R. FLORES ET AL., WILLIAMS INST., AGE OF INDIVIDUALS WHO IDENTIFY AS TRANSGENDER IN THE UNITED STATES 4 (2016), http://williamsinstitute.law.ucla.edu/wp-content/uploads/TransAgeReport.pdf. 20 JODY L. HERMAN, LGB WITHIN THE T: SEXUAL ORIENTATION IN THE NATIONAL TRANSGENDER DISCRIMINATION SURVEY AND IMPLICATIONS FOR PUBLIC POLICY 1 (2016), available at http://williamsinstitute.law.ucla.edu/wp- content/uploads/Sexual-Orientation-in-NTDS-March-2016.pdf.

B. Legal Landscape for LGBT People in Georgia

Georgia’s legal landscape reflects a history of state laws and policies that have sought to limit protections for LGBT people or to discriminate against them. Although same-sex couples are now able to marry in the state following the U.S. Supreme Court’s decision in Obergefell v. Hodges,21 the state and most localities continue to lack protections against sexual orientation and gender identity discrimination in the workplace, housing, public accomomdations, and other areas.

1. Historical Legal Landscape

Although Georgia’s sodomy law is no longer on the books, and marriage has been extended to same-sex couples in the state, these historical anti-LGBT laws likely have lingering negative effects on the social climate for LGBT people in the state.

Sodomy Law. Enforcement of Georgia’s sodomy law indicates a decades-long history of discrimination against LGB people in the state. Georgia’s sodomy law was never limited to sexual behavior between same-sex partners, but documented cases tracing back to the 18th Century suggest that the law was more frequently enforced against same-sex partners than different-sex partners.22 Georgia’s sodomy law was also used to justify employment discrimination by the state against LGB people. For example, in 1991, a woman’s offer to work at the Georgia Attorney General’s office was rescinded after she told coworkers about her upcoming wedding to her same-sex partner.23 The Attorney General’s office revoked the offer because employing her “would create the appearance of conflicting interpretations of Georgia law and affect public credibility about the Department’s interpretations [and]…interfere with the Department’s ability to enforce Georgia’s sodomy law.”24 The woman filed a lawsuit challenging the decision, but both the district court and the Eleventh Circuit ruled in favor of the Attorney General.25

The U.S. Supreme Court upheld Georgia’s sodomy law in the 1986 case Bowers v. Hardwick.26 The Georgia Supreme Court did not invalidate the state’s sodomy law until 1998.27 Five years later, the U.S. Supreme Court reversed Bowers in Lawrence v. Texas, holding that laws banning private, consensual sexual conducting between adults violated the Due Process Clause.28

21 576 U.S. __ (2015); Inniss v. Aderhold, No. 1: 14-cv-1180-WSD (N.D. Ga. Oct. 7, 2015). 22 George Painter, Sodomy Laws: Georgia, Aug. 10, 2004, http://www.glapn.org/sodomylaws/sensibilities/georgia.htm#fn5. 23 Shahar v. Bowers, 114 F.3d 1097, 1101 (11th Cir. 1997). 24 Id. 25 Id. at 1099. 26 478 U.S. 186 (1986). 27 Powell v. State, 510 S.E.2d 18 (Ga. 1998). 28 539 U.S. 558 (2003).

Marriage Equality. Nearly a decade before any state extended marriage to same-sex couples, Georgia passed a statute prohibiting marriage equality.29 In 2004, voters in Georgia approved a more sweeping constitutional ban that prohibited civil unions as well.30 The referendum passed with 76% support.31 Georgia’s statutory and constitutional bans remained in effect until the U.S. Supreme Court ruled in 2015 that state-level bans on marriage for same-sex couples violate the Due Process and Equal Protection Clauses of the U.S. Constitution.32

Months after the U.S. Supreme Court’s decision extending marriage nationwide, the Georgia legislature passed a bill allowing faith-based organizations to discriminate against LGBT employees and allowing ministers and faith-based organizations to refuse to perform or host wedding ceremonies for same-sex couples.33 The bill also stated that individuals had the right to choose not to attend any religious marriage ceremony.34 The bill passed the Georgia House and Senate, but was vetoed by Governor Nathan Deal. In a press conference, Governor Deal stated that “we do not have to discriminate to protect the faith-based community in Georgia.”35

2. Current Legal Landscape

Discrimination Protections. Unlike most states, Georgia does not have a broad, statewide nondiscrimination law that prohibits discrimination based on personal characteristics in employment or public accommodations. Georgia does have a statute that prohibits housing discrimination based on race, religion, sex, disability, familial status, and national origin,36 as well as several employment non-discrimination laws that apply in limited circumstances. One employment nondiscrimination law in Georgia prohibits discrimination based on race, disability, religion, sex, national origin, and age in state government employment,37 and separate laws prohibit discrimination based on age38 and disability39 in both private and public sector employment. Georgia does not have any state-level non-discrimination laws that include sexual orientation or gender identity as protected characteristics.40

29 1996 Ga. Laws 624. 30 GA. CONST. § IV (2005). 31 Georgia Election Results: 2004 General Election, Ga. Sec. of State, Nov. 2, 2004, http://sos.ga.gov/elections/election_results/2004_1102/. 32 Obergefell v. Hodges, 576 U.S. __ (2015); Inniss v. Aderhold, No. 1: 14-cv-1180-WSD (N.D. Ga. Oct. 7, 2015). 33 H.B. 757, 2015-2016 Reg. Sess., 153rd Gen. Assem. (Ga. 2016). 34 Id. 35 Transcript: Deal HB 757 Remarks, Ga. Office of the Governor, Mar. 28, 2016, https://gov.georgia.gov/press- releases/2016-03-28/transcript-deal-hb-757-remarks-0. 36 GA. CODE ANN. § 8-3-200 (2015). 37 GA. CODE ANN. §§ 45-19-20 to 45-19-46. 38 Id. § 34-1-2. 39 Id. § 34-6A-2. 40 Some federal laws that prohibit discrimination based on sex, including Title VII, have been interpreted by some courts and federal agencies to also prohibit discrimination based on gender identity and sexual orientation. These laws would apply to workers and residents of Georgia, though they are not discussed here because they are outside the scope of this memo. See Examples of Court Decisions Supporting Coverage of LGBT-Related Discrimination

Several localities in Georgia have enacted local ordinances or personnel policies that prohibit discrimination based on sexual orientation and gender identity, creating a patchwork of legal protections for LGBT people in the state. Atlanta is the only locality in Georgia that has enacted a broad local ordinance that prohibits discrimination based on sexual orientation and gender identity in public and private sector employment, housing, public accommodations, and other areas.41 At least thirty-five other localities in Georgia have adopted ordinances or personnel policies that protect their own municipal government employees from discrimination based on sexual orientation.42 Thirteen of these laws and policies also protect municipal employees from gender identity discrimination.43

Under Title VII, U.S. EEOC, https://www.eeoc.gov/eeoc/newsroom/wysk/lgbt_examples_decisions.cfm (last visited Jan. 3, 2017). 41 Other areas include employment by city contractors, decisions regarding potential lessors of the Atlanta Cyclorama or the Atlanta Civic Center, and decision regarding the sale of alcohol by an individual or company licensed to sell alcohol in the city. Atlanta, Ga., Bill of Rights, A § 4; ATLANTA, GA., CODE §§ 94-111, 94-112, 94- 91 to 94-97, 94-68, 10-224(a), 46-1(b), 46-37, 2-1381, 2-1414, 2-1466, 10-223. 42 These localities include: Carrollton, Chamblee, Chattahoochee Hills, Clarkston, Dallas, Decatur, Doraville, East Point, Hapeville, Hinesville, Loganville, Macon, Midway, Norcross, North High Shoals, Oakwood, Pine Lake, Port Wentworth, Riverdale, Sandy Springs, St. Marys, Savannah, Tybee Island, Vidalia, Athens-Clarke County, Bibb County, Clayton County, Colquitt County, Dekalb County, Fulton County, Jackson County, Lincoln County, Putnam County, Rockdale County, Ware County. Carrollton, Ga., Employment, http://www.carrollton-ga.gov/city- departments/human-resources/employment/ (last visited Oct. 17, 2016); Application for Employment, Chamblee, Ga., http://www.chambleega.com/DocumentCenter/View/88 (last visited Oct. 17, 2016); Application for Employment, Chattahoochee Hills, Ga., http://www.chatthillsga.us/Assets/Files/Employment_Opportunities/Employment_Application.PDF (last visited Oct. 17, 2016); CLARKSTON, GA., CODE § 14-4; Application for Employment, Dallas, Ga., http://www.cityofdallasga.com/Forms/Employment_App_2015.pdf (last visited Oct. 17, 2016); Peggy Meriss, Nondiscrimination Policy, Decatur, Ga., http://www.decaturga.com/about/nondiscrimination-policy (last visited Oct. 17, 2016); DORAVILLE, GA., CODE, Ch. 2, Art. IX, § 2-244; EAST POINT, GA., CODE, Div. 1, Bill of Rights, § 6; Employment, Hapeville, Ga., http://www.hapeville.org/index.aspx?NID=120 (last visited Oct. 17, 2016); Human Resources Dep’t, Hinesville, Ga., http://www.cityofhinesville.org/77/Human-Resources (last visited Oct. 17, 2016); MACON, GA. CODE § 16-47; Employment Application, Midway, Ga., http://www.historicmidway.com/Employment_Application05714.pdf (last visited Oct. 17, 2016); MILTON, GA., CODE § 38-91; Application for Employment, Norcross, Ga., http://www.norcrossga.net/DocumentCenter/View/397 (last visited Oct. 17, 2016); NORTH HIGH SHOALS, GA., CODE § 12-7; Oakwood, Ga., Application for Employment, http://www.cityofoakwood.net/Assets/Files/Application12.03.12.pdf (last visited Oct. 17, 2016); City of Pine Lake Personnel Manual Revised & Adopted (1999); Employment Application, Port Wentworth, Ga., http://www.cityofportwentworth.com/users/forms/nonpublicSafety_employmentapplication.pdf (last visited Oct. 17, 2016); Equal Employment Opportunity Policy, Riverdale, Ga., http://www.riverdalega.gov/index.aspx?NID=102 (last visited Oct. 17, 2016); Careers, Sandy Springs, Ga., http://www.sandyspringsga.org/Careers (last visited Oct. 17, 2016); Employment Application, St. Marys, Ga., http://www.stmarysga.gov/stmarys/department/human_resources/uploads/St_Marys_Employment_Application_revi sed_072014.pdf (Oct. 17, 2016); Dawn Ennis, Savannah Votes to Protect LGBT City Employees from Discrimination, ADVOCATE.COM, Dec. 10, 2015, http://www.advocate.com/transgender/2015/12/10/savannah-votes- protect-lgbt-city-employees-discrimination; TYBEE, GA., CODE § 2-4-1; ATHENS-CLARKE CTY, GA., CODE § 1-17; Equal Employment Opportunity Plan, Clayton Cty, Ga., http://www.claytoncountyga.gov/pdfs/human_resources/EEOP_2010_final.pdf (last visited Oct. 17, 2016); Application for Employment, Colquitt Cty, Ga., http://www.ccboc.com/document_center/Employment/1_EmploymentApplication_Fill_In.pdf (last Oct. 17, 2016); DEKALB, GA., CODE Art. I § 20-16 and Art. IX § 20-194; FULTON CTY, GA., CODE Art. I § 38-1; Employment Application, Jackson Cty, Ga., http://www.jacksoncountygov.com/Index.aspx?page=96 (click link to download

Atlanta’s non-discrimination ordinances provide for administrative enforcement through the city’s Human Relations Commission as well as a private right of action, allowing individuals who have experienced discrimination to file a lawsuit in court.44 The code does not specify the remedies available if the Human Relations Commission or court determines that unlawful discrimination has occurred.45 Non-discrimination ordinances and policies that apply only to municipal employees do not provide similar enforcement mechanisms.46

Nearly 200,000 workers in Georgia identify as LGBT (4.0% of the state’s workforce). An estimated 6% of the state’s workforce is protected from employment discrimination based on sexual orientation or gender identity under local ordinances and personnel policies.47 An estimated 5% of Georgia’s total adult population is also protected from discrimination in other areas, such as housing and public accommodations, under Atlanta’s broader ordinance.48

Parenting Rights. Same-sex couples face legal barriers to securing parental rights in Georgia. Georgia statutes regulating parentage use gendered terms that facially exclude same-sex couples. For instance, the donor insemination statute only applies to “a husband and wife;”49 according to the text of the statute, a man who consents to his wife’s insemination with donor sperm would be recognized as a legal parent, but a woman with a female spouse would not. This treatment poses constitutional problems in light of the Supreme Court’s recognition of same-sex couples’ right to marry in Obergefell v. Hodges.50 While recent experiences of same-sex couples in Georgia indicate that the Office of Vital Records will recognize married same-sex partners listed on a child’s birth certificate,51 a birth certificate alone does not establish parentage. Legal parentage is important because it establishes rights to and responsibilities for the child. Male same-sex couples face an even more hostile environment with regard to family formation. Because no employment application) (last visited Oct. 17, 2016); Application for Employment, Lincoln Cty., Ga., http://www.lcgagov.org/uploads/3/1/8/8/3188716/lcgjobapp.pdf (last visited Oct. 17, 2016); Putnam Cty., Ga., Human Resources, http://www.putnamcountyga.us/departments/human-resources/ (last visited Oct. 17, 2016); Rockdale Cty, Ga., Equal Opportunity Statement, http://www.rockdalecountyga.gov/about/company-history/county- departments/human-resources/equal-opportunity-statement/ (last visited Oct. 17, 2016), Ware Cty, Ga., Mission, http://www.warecounty.com/HumanResourcesMission.aspx (last visited Oct. 17, 2016). 43 These localities include: Atlanta, Clarkston, Decatur, Doraville, East Point, Hapeville, Macon, North High Shoals, Pine Lake, Savannah, Wentworth, Athens/Clarke County, and Fulton County. 44 ATLANTA, GA., CODE §§ 94-210 et seq. 45 See id. 46 See note 42, supra. 47 For workforce data: search American FactFinder, http://factfinder.census.gov/faces/nav/jsf/pages/index.xhtml (last visited Oct. 18, 2016) (enter Georgia or locality name and select go, click on income tab, choose Selected Economic Characteristics for the 2015 American Community Survey). 48 For population data, search American FactFinder, http://factfinder.census.gov/faces/nav/jsf/pages/index.xhtml (last visited Oct. 18, 2016) (enter Georgia or locality name and select go, search for “age by sex”, choose Age by Sex for the 2015 American Community Survey). 49 GA. CODE ANN. § 31-10-9(f) (2015). 50 576 U.S. __ (2015); Douglas NeJaime, Marriage Equality and the New Parenthood, 129 HARVARD L. REV. 1186 (2016). 51 Barbara E. Katz, Marriage Equality and the Parent-Child Relationship, GEORGIALORDLAW.COM, http://cdn.georgialordlaw.com/wp-content/uploads/2015/12/katz_handout_marriage_equality-002.pdf (last visited Oct. 18, 2016).

14 statutes in Georgia directly address gestational surrogacy, for same-sex male couples, the non- biological father would ordinarily need to adopt the child and could only do so after the gestational surrogate relinquishes parental rights following the child’s birth. Safe Schools. Georgia’s anti-bullying statute prohibits bullying (including cyber-bullying) and harassment at school.52 Unlike many state anti-bullying laws, Georgia’s statute does not include an enumerated list of personal characteristics based on which students are likely to be bullied, such as race, sex, sexual orientation, or gender identity.53 However, the anti-bullying policy developed by the Georgia Department of Education does expressly prohibit harassment and intimidation at schools based on sexual orientation, among other personal characteristics.54 The policy does not expressly include gender identity in the enumerated list of protected characteristics.

Gender Marker and Name Changes. Georgia allows individuals to change their gender marker and name on identification documents, but requires proof of surgery for a gender marker change. To amend a birth certificate, an individual in Georgia must have a certified court order stating that their sex “has been changed by surgical procedure” and that their name has been changed.55 The law does not specify the type of medical interventions that would be considered “surgical procedures.” Georgia also allows individuals to change their names and gender markers on a driver’s license. To obtain a name change, the individual must submit certified documentation supporting the name change to the Department of Driver Services.56 Documentation can include a legal name change, which may be obtained by petitioning the court and publishing a notice of the name change in county records once a week for four weeks.57 To obtain a gender marker change, the individual must submit a court order or physician’s letter certifying gender change, including the date of “gender reassignment operation.”58

Other protections. Finally, Georgia also lacks a number of protections for LGBT people that have been enacted in other states, including a hate crimes law that includes sexual orientation or gender identity,59 a law that prohibits health insurance providers from discriminating based on

52 GA. CODE ANN. § 20-2-751.4. 53 18 states and the District of Columbia have enumerated anti-bullying laws that include sexual orientation and gender identity along with other personal characteristics. State Maps, GLSEN.ORG, http://www.glsen.org/article/state-maps (last visited Oct. 19, 2016). 54 GA. DEP’T OF EDUC., POLICY FOR PROHIBITING BULLYING, CYBERBULLYING, HARASSMENT AND INTIMIDATION 5 (2015), available at https://www.gadoe.org/Curriculum-Instruction-and-Assessment/Curriculum-and- Instruction/Documents/GaDOE%20Bullying%20Policy_May%202015.pdf. 55 GA. CODE ANN. § 31-10-23(e). 56 Changes to Your License, Ga. Dept’ of Driver Services, http://www.dds.ga.gov/drivers/dldata.aspx?con=1748208403&ty=dl (last visited Oct. 18, 2016). 57 GA. CODE ANN. § 19-12-1. 58 Changes to Your License, Ga. Dept’ of Driver Services, supra note 56. 59 Georgia is one of five states that does not have a hate crimes law. Nancy Badertscher, South Carolina, Georgia, 3 Other States Do Not Have Hate Crimes Laws, POLITFACT.COM, July 1, 2015, http://www.politifact.com/georgia/statements/2015/jul/01/various-media-reports/south-carolina-georgia-3-other- states-dont-have-ha/.

15 sexual orientation or gender identity, 60 a law that requires such providers to offer coverage for transition-specific medical care,61 and a ban on professional therapists enganging in efforts to change people’s sexual orientation or gender identity.62 C. Public Opinion

In 2014, Williams Institute scholars created the LGB Social and Political Climate Index to characterize the social environments in which LGB people reside.63 The Index summarizes four items about acceptance of LGB people and attitudes toward LGB rights: 1) approval of marriage for same-sex couples; 2) approval of adoption rights for same-sex couples; 3) approval of laws that protect lesbians and gay men from employment discrimination; and 4) belief that homosexuality is a sin.64 The Index provides climate scores for each state, denoting relative levels of social and political support for LGBT people across the U.S.65 Higher Index scores indicate higher levels of social acceptance of LGB people, while lower scores indicate lower levels of acceptance.66 As Figure I.d. shows, LGB Social and Political Climate Index scores range from 45 in West Virginia to 92 in the District of Columbia. Georgia has a climate score of 51, placing the state below the national average of 60, and ranking the state 38th its level of support for LGBT people and issues. However, among southern states, Georgia ranks fifth, behind Kansas, Missouri, North Carolina, and Virginia.

60 At least 16 states and the District of Columbia have such laws (research on file with the authors). 61 At least 15 states and the District of Columbia have such laws (research on file with the authors). 62 Four states in the U.S. and the District of Columbia have such bans, which generally prohibit therapists and other medical professionals from trying to change a youth’s sexual orientation or gender identity (research on file with the authors). 63 AMIRA HASENBUSH, ANDREW R. FLORES, ANGELIKI KASTANIS, BRAD SEARS & GARY J. GATES, WILLIAMS INST., THE LGBT DIVIDE: A DATA PORTRAIT OF LGBT PEOPLE IN THE MIDWESTERN, MOUNTAIN & SOUTHERN STATES 5 (2015), http://williamsinstitute.law.ucla.edu/wp-content/uploads/LGBT-divide-Dec-2014.pdf. 64 Id. at 6. 65 Id. at 5. 66 Id. at 6.

Figure I.d. State Rankings on LGBT Social & Political Climate Index Scores (2014)

Although Georgia ranks below the national average in terms of support for LGBT people, attitudes toward LGBT people in the state are improving over time. Figure I.e. shows an increase in acceptance of same-sex marriage in Georgia, among other southern states, from 1992 to the present day.67

Figure I.e. Public Support for Same-Sex Marriage in the South 1992-2016

In addition, recent public opinion surveys also indicate that a majority of Georgians support expanding non-discrimination protections to include LGBT protections and oppose policies allowing businesses to refuse service to LGBT people on religious grounds. The 2015 American Values Atlas, a survey of 42,000 Americans in all 50 states and 30 major metropolitan areas, found that two-thirds (66%) of Georgia residents favored legal protections from discrimination for LGBT people in areas such as employment, housing, and public accommodations.68 Younger

67 Changes in support for marriage equality are rooted in two causes: generational change and attitude change. ANDREW R. FLORES & SCOTT BARCLAY, WILLIAMS INST., TRENDS IN PUBLIC SUPPORT FOR MARRIAGE FOR SAME- SEX COUPLES BY STATE (2015), http://williamsinstitute.law.ucla.edu/wp-content/uploads/Trends-in-Public-Support- for-Same-Sex-Marriage-2004-2014.pdf. Less than half of the changes over time are due to younger and more accepting generations replacing older ones. Gregory B. Lewis and Charles W. Gossett, Changing Public Opinion on Same-Sex Marriage: The Case of California, 36 POLITICS & POLICY 4 (2008). 68 ROBERT P. JONES, DANIEL COX, BETSY COOPER & RACHEL LIENESCH, A PROFILE OF GEORGIA RESIDENTS’ ATTITUDES ON LGBT ISSUES: FINDINGS FROM THE 2015 AMERICAN VALUES ATLAS 1 (2016), available at http://prri.org/wp-content/uploads/2016/02/PRRI-AVA-Georgia-LGBT-Report.pdf.

18 residents were more likely to express support, with 78% of respondents under 30 years old in Georgia saying they were in favor of LGBT non-discrimination laws.69

Figure I.f. Support for Laws That Would Protect LGBT People from Discrimination in Jobs, Public Accommodations, and Housing among Adults in Georgia, by Age Source: American Values Atlas, 2015

78% 66%

All Adults Adults aged 18-29

The survey found support for LGBT non-discrimination laws across political parties (74% of Democrats, 68% of Independents, and 59% of Republicans were in favor) and across major religious affiliations in Georgia (73% of Catholics, 67% of white mainline protestants, 65% of black protestants, 54% of white evangelical Protestants, and 76% of religiously unaffiliated were in favor).70 There were no significant differences in opinion by race (65% of white Georgians and 67% of black Georgians were in favor).71

Figure I.g. Support for Laws That Would Protect LGBT People from Discrimination in Jobs, Public Accommodations, and Housing among Adults in Georgia, by Political Affiliation Source: American Values Atlas, 2015

74% 66% 68% 59%

All Adults Republican Independent Democrat

69 Id. 70 Id. at 2. 71 Id.

Similarly, a 2011 national public opinion poll found that 77% of respondents from Georgia were in favor a federal law to prohibit employment discrimination based on sexual orientation and gender identity.72

The 2015 American Values Atlas also found that the majority of respondents (57%) from Georgia were opposed to allowing small businesses to refuse service to LGBT people on religious grounds.73 Younger residents were more likely to oppose religious refusals, with 64% of respondents under age 30 saying that small businesses should not be allowed to refuse service to LGBT people on religious grounds.74 Black respondents were more likely to oppose religious refusals than white respondents (66% v. 53%).75

Figure I.h. Opposed to Allowing Small Businesses to Refuse to Provide Services or Products to LGBT People if Doing so Violates Their Religious Beliefs among Adults in Georgia, by Age Source: American Values Atlas, 2015

64% 57%

All Adults Adults aged 18-29

The majority of respondents from Georgia in all but one religious group said they opposed religious refusals by small businesses. Nearly two-thirds of black Protestants (66%), religiously unaffiliated (64%), and Catholics (63%) said they were opposed to allowing small businesses to refuse service to LGBT people, along with 53% of white mainline protestants.76 A slim majority (52%) of white evangelical Protestants said they favored a policy that would allow small businesses to refuse service to LGBT people on religious grounds.77

72 Andrew R. Flores, Jody L. Herman & Christy Mallory, Transgender Inclusion in State Non-Discrimination Policies: The Democratic Deficit and Political Powerlessness, RESEARCH & POLITICS 1 (Oct.-Dec. 2015). 73 JONES ET AL., supra note 68. 74 Id. 75 Id. 76 Id. at 3. 77 Id.

Figure I.i. Opposed to Allowing Small Businesses to Refuse to Provide Services or Products to LGBT People if Doing so Violates Their Religious Beliefs among Adults in Georgia, by Religious Affiliation and Race Source: American Values Atlas, 2015

66% 63% 64% 57% 53% 43%

All Adults Catholic Black Protestant White mainline White evangelical Unaffiliated Protestant Protestant

In addition, a poll commissioned by the Atlanta Journal-Constitution in May 2016 found that a slight majority of Georgia voters (51%) were opposed to the legislature reintroducing a bill that would allow businesses to refuse service to LGBT people on religious grounds.78 The bill had passed the legislature and was vetoed by Governor Deal earlier in the year.79

78 Aaron Gould Sheinin, Poll: Overall Rating Steady for Georgia’s Deal, but GOP Support Falls, AJC.COM, May 15, 2016, http://www.ajc.com/news/state--regional-govt--politics/poll-overall-rating-steady-for-georgia-deal-but- gop-support-falls/7uBxj1kSumWs8UUJwdkoZM/. 79 H.B. 757, 2015-2016 Reg. Sess., 153rd Gen. Assem. (Ga. 2016).

SECTION II. APPROACH TO ANALYZING ECONOMIC IMPLICATIONS OF STIGMA AND DISCRIMINATION AGAINST LGBT PEOPLE

In 2014, USAID and the Williams Institute produced a study addressing how stigma and discrimination against LGBT people can have economic impacts. In this report, we draw from that study and look to three forms of stigma and discrimination to assess the impact of an unsupportive legal landscape and social climate on Georgia’s economy: 1) discrimination and harassment in the workplace and other settings; 2) bullying and harassment of youth; and 3) health disparities experienced by LGBT people.80 In our analysis, we draw on data specific to Georgia, and illustrate the magnitude of some of the costs resulting from different types of stigma and discrimination. Due to limited available data on LGBT people in the state, we are able to estimate a few of the costs related to LGBT stigma and discrimination in Georgia. In the 2014 USAID and Williams Institute study, the authors explored both micro- and macro- level analyses to assess possible links between discrimination against LGBT people, as well as exclusionary treatment of LGBT people, and economic harms.81 In the micro-level analysis, the authors considered five types of exclusion of LGBT people and explained how they might be linked to harmful economic outcomes: 1) Police abuse and over-incarceration; 2) Higher rates of violence; 3) Workplace harassment and discrimination; 4) Discrimination and bullying of LGBT students in schools; and 5) Health disparities.82

After considering these, the authors concluded that “human rights violations experienced by LGBT people diminish economic output and capacity at the micro-level. When LGBT people are targets of violence, denied equal access to education, stigmatized in communities, and discouraged from pursuing the jobs that maximize their skills, their contributions to the

80 The USAID and Williams Institute study also assessed the economic impacts of two other forms of stigma and discrimination against LGBT people: 1) police abuse and over-incarceration and 2) higher rates of violence. We do not consider these forms in this report due to a lack of state-level data on effects of such stigma and discrimination against LGBT people in Georgia. 81 M.V. LEE BADGETT, SHEILA NEZHAD, KEES WAALDIJK & YANA VAN DER MEULEN RODGERS, USAID & WILLIAMS INST., THE RELATIONSHIP BETWEEN LGBT INCLUSION AND ECONOMIC DEVELOPMENT: AN ANALYSIS OF EMERGING ECONOMIES 2 (2014), http://williamsinstitute.law.ucla.edu/wp-content/uploads/lgbt-inclusion-and- development-november-2014.pdf. The micro-level analysis focused on the experiences of LGBT individuals and the defined inclusion as the ability to live one’s life as one chooses. Id. at 1. The macro-level analysis analyzed the effect of LGBT rights on economic development (measured by per capita gross domestic product and the Human Development Index) after controlling for other factors that influence development. Id. at 2. 82 Id.

22 whole economy are diminished, holding back economic advancement for the national economy.”83

Turning to the macro-level, the authors found an association between greater protections of legal rights for sexual and gender identity minorities and economic development in emerging economies, measured by per capita GDP.84 Notably, they found that non-discrimination laws in particular “have an especially strong correlation with GDP per capita. The importance of nondiscrimination laws could be related to their stronger connection to the treatment of LGBT people in the workplace and other settings that have direct economic relevance.”85

While the USAID and Williams Institute study focused on national economies, similar types of discrimination and stigma confront LGBT people in Georgia and are likely to have similar economic effects.

Before we turn to the analysis, five important points:

First, we map out economic impacts in each of the three areas we analyze due to stigma and discrimination against LGBT people in Georgia in general. We do not consider how the effects specifically relate to any particular law or policy in the state.

Second, we illustrate just a few of the economic impacts created by a challenging legal landscape and social climate for LGBT people in Georgia. This report is not intended to quantify the total amount of harmful economic impacts related to stigma and discrimination against LGBT people in the state.

Third, while the forms of discrimination and stigma that we address in this study provide a useful way to understand some of the significant challenges that LGBT people face throughout their lives, different types of discrimination and stigma interact with each other and all may contribute to one or more negative outcomes for LGBT people. For example, LGBT people are more likely to be poor because of school bullying and workplace discrimination, to have poor health, and to have higher rates of incarceration and violent crime victimization. Because these factors overlap and interact, the economic impacts that we have estimated should not be summed together.

Fourth, focusing on LGBT stigma and discrimination alone will not address all negative outcomes experienced by LGBT people. LGBT people have a minority sexual orientation and/or gender identity, but also have other identities including race, ethnicity, age, disability, and gender. While a singular focus on LGBT stigma will not entirely eliminate the disparities we discuss, an approach that embraces eliminating disparities for diverse LGBT people, no

83 Id. at 6. 84 Id. at 10. 85 Id. at 3.

23 matter what their cause, will improve the lives of many non-LGBT people as well. For example, eliminating gender and racial-ethnic wage gaps in the U.S. would both eliminate the poverty gap between same-sex and different sex-couples, as well as to lift many non-LGBT people out of poverty as well.86

Finally, as the authors of the USAID and Williams Institute study emphasize, to move this analysis beyond this framework and the illustrations of economic impact below, we need more complete and better data on LGBT populations. In particular, the routine inclusion of sexual orientation and gender identity measures on large, population-based surveys would provide a rich source of information about LGBT people and disparities they face related to their sexual orientation and gender identity. The value of such data collection is illustrated by our use of three data sets specific to LGBT people in Georgia that were unavailable just a few years ago— data from the Youth Risk Behavior Survey (YRBS), the Behavioral Risk Factor Surveillance System (BRFSS), and the National Transgender Discrimination Survey (NTDS). We also need more research about the lived experiences of LGBT people and the effectiveness of legal protections to further assess the impact of LGBT supportive laws and climates on LGBT people.87

86 M.V. LEE BADGETT & ALYSSA SCHNEEBAUM, WILLIAMS INST., THE IMPACT OF WAGE EQUALITY ON SEXUAL ORIENTATION POVERTY GAPS (2015), http://williamsinstitute.law.ucla.edu/wp-content/uploads/Impact-of-Wage- Equality-on-Sexual-Orientation-Poverty-Gaps-June-2015.pdf. 87 BADGETT, NEZHAD, WAALDIJK & RODGERS, supra note 81 at 49.

SECTION III. ECONOMIC IMPLICATIONS OF DISCRIMINATION AND HARASSMENT IN THE WORKPLACE AND OTHER SETTINGS

This section documents the existence of stigma and discrimination against LGBT people in employment, housing, and public accommodations, and discusses the consequences of such stigma and discrimination for LGBT individuals and for Georgia’s economy. We conclude with two examples of the economic ramifications of discrimination on state expenditures.

A. Discrimination Documented in Surveys, Court Cases, and Anecdotal Reports

1. Employment Discrimination

Discrimination against LGBT workers in the U.S., as well as in Georgia, has been widely documented. For example, a 2013 national survey conducted by Pew Research Center found that 21% of LGBT respondents reported having been treated unfairly by an employer in hiring, pay, or promotions.88 The 2015 U.S. Transgender Survey, the largest survey of transgender and gender non-conforming people in the U.S. to date, found that 27% of respondents reported being fired, denied a promotion, or not being hired for a job they applied for in the year prior to the survey because of their gender identity, and 15% report being verbally, physically, or sexually harassed at work in the year prior to the survey because of their gender identity.89

Surveys of LGBT individuals in Georgia find similar levels of reported discrimination and harassment. For example, a 2011 statewide survey of over 2,000 LGBT Georgians found that one-quarter of respondents reported experiencing employment discrimination because of their sexual orientation or gender identity, and 45% reported that they had experienced homophobia, transphobia, or harassment at work within the year prior to the survey.90 Additionally, in response to the 2011 National Transgender Discrimination Survey (NTDS), 80% of the transgender respondents from Georgia reported experiencing harassment or mistreatment at work, 34% reported losing a job, 26% reported being denied a promotion, and 60% reported not

88 A Survey of LGBT Americans: Attitudes, Experiences and Values in Changing Times, PEW RESEARCH CENTER, June 13, 2013, http://www.pewsocialtrends.org/2013/06/13/a-survey-of-lgbt-americans/. Additionally, the nationally representative 2008 General Social Survey found that 37% of gay men and lesbians reported experiencing workplace harassment in the last five years, and 12% reported losing a job because of their sexual orientation. BRAD SEARS & CHRISTY MALLORY, WILLIAMS INST., DOCUMENTED EVIDENCE OF EMPLOYMENT DISCRIMINATION & ITS EFFECTS ON LGBT PEOPLE 2 (2011), http://williamsinstitute.law.ucla.edu/wp-content/uploads/Sears-Mallory- Discrimination-July-20111.pdf. 89 SANDY JAMES ET AL., 2015 U.S. TRANSGENDER SURVEY 12 (2016), http://www.transequality.org/sites/default/files/docs/USTS-Full-Report-FINAL.PDF. 90 PHILLIP RUSH CENTER, GEORGIA STATEWIDE LGBT COMMUNITY SURVEY 11-12 (2013), http://www.rushcenteratl.org/wp-content/uploads/2013/07/Rush-Center-Survey-Results-with-Cover.pdf.

25 being hired because of their gender identity at some point in their lives.91 Additionally, analysis of public opinion data indicates that 82% of Georgia residents, non-LGBT and LGBT, believe that LGBT people experience discrimination in the state.92

Instances of employment discrimination against LGBT people in Georgia have also been documented in a number of court cases and the media.93 Documented examples include:

 In 2015, a security guard sued her former employer, the Georgia Regional Hospital, alleging sex discrimination by her workplace supervisor. According to an appellate brief filed by her attorney, she was targeted because she identified as a lesbian and wore a male uniform and had a short haircut.94 The district court dismissed her complaint, holding that neither sexual orientation nor gender non-conformity could form the basis of a discrimination claim.95 The case is now pending on appeal.96

 In 2015, a former Atlanta police officer reached a $140,000 settlement with the Atlanta Police Department, after being forced to take unpaid medical leave after suffering several grand mal seizures. She experienced the seizures “days after she complained of anti-gay comments directed at her” by a co-worker.97

 In 2013, a mechanic sued her former employer alleging that the employer had discriminated against her because she was transgender. She reported that her employer told her to stop talking about her transition to her co-workers and advised her not to wear feminine clothing.98 Although the district court found that there was no evidence of unlawful discrimination, and held in favor of the employer, the Eleventh Circuit Court of Appeals reversed and sent the case back to the district court for a trial.99 In overruling the district court’s decision, Eleventh Circuit concluded that, based on the available evidence,

91 FINDINGS OF THE NATIONAL TRANSGENDER DISCRIMINATION SURVEY: GEORGIA RESULTS, NATIONAL CENTER FOR TRANSGENDER EQUALITY & THE GAY AND LESBIAN TASK FORCE, http://www.transequality.org/sites/default/files/docs/resources/ntds_state_ga.pdf (last visited Nov. 17, 2016). 92 Andrew Flores & Scott Barclay, Williams Institute Analysis based on public opinion data from Evaluations of Government and Society Study, Survey 3 (2011) & Survey 4 (2012) and Pew Research Center Poll (2013) (data and calculations on file with authors). 93 Alan Duke & Joe Sutton, Teacher Suspended for Showing Class Macklemore’s ‘Same Love’ Video, CNN.COM, Sept. 12, 2013, http://www.cnn.com/2013/09/12/showbiz/same-love-teacher-suspended/ (public school teacher reported that she was given a three-day suspension for showing students a popular music video that featured a song supporting marriage for same-sex couples); Derick Waller, Gay Discrimination Bill Clears Senate Hurdle, WNCN.COM, Nov. 5, 2013, http://www.wncn.com/story/23888634/gay-discrimination-bill-clears-senate-hurdle (Raleigh resident reported that she was fired from her job as a broadcast technician because of her sexual orientation). 94 Appellant’s Opening Brief at 16, Clark v. Ga. Reg’l Hosp., No. 15-15234 (11th Cir. Jan. 7, 2016). 95 Clark v. Ga. Reg’l Hosp., No. CV-15-103 (S.D. Ga. Sept. 9, 2015). 96 Clark v. Ga. Reg’l Hosp., appeal docketed, No. 15-15234 (11th Cir. Nov. 19, 2015). 97 Matt Hennie, City to Pay LGBT Cop $140,000 to Settle Lawsuit, PROJECT Q ATLANTA (June 1, 2015, 10:29 AM), http://www.projectq.us/atlanta/city_to_pay_lgbt_cop_140000_to_settle_lawsuit?gid=16896. 98 Chavez v. Credit Nation Auto Sales, 49 F. Supp. 3d 1163, 1169 (N.D. Ga. 2014). 99 Chavez v. Credit Nation Auto Sales, No. 14-14596, slip op. at 21 (11th Cir. Jan. 14, 2016).

a jury could determine that the employer engaged in unlawful discrimination based on sex as prohibited by Title VII.100

 In 2007, a Legislative Editor for the Georgia General Assembly’s Office was terminated after her supervisor found out about her gender transition.101 According to the employee, her supervisor said that “the intended gender transition was inappropriate, that it would be disruptive, that some people would view it as a moral issue, and that it would make [the employee’s] coworkers uncomfortable.”102 The employee filed a lawsuit against the Office in federal court, alleging that her constitutional right to equal protection had been violated.103 A district court in Georgia ruled in favor of the employee and the Eleventh Circuit Court of Appeals affirmed.104 As of December 2011, she was eligible to return to work.105

 In 2006, a state agency employee reported that she was subjected to a humiliating and invasive four-hour investigation after other employees complained about working with her because she was a lesbian. She said that she was asked questions about who looked after her children, who she lived with, and who her friends were. She was then told not to tell anybody else about what happened during the interview. According to the employee, the agency suspended her for “alleged misconduct” two weeks later.106

2. Discrimination in Housing and Public Accommodations

Discrimination against LGBT people in Georgia has also been observed in the areas of public accommodations and housing. A 2011 survey of over 2,000 LGBT Georgians found that 48% of respondents said they had experienced homophobia, transphobia, or harassment at a public establishment in the year prior to the survey.107 Six percent of respondents reported that they had experienced such discrimination at least once a month during the prior year.108 Additionally, 17% of respondents said they had experienced homophobia, transphobia, or harassment by a firefighter, police officer, or other civil servant in the year prior to the survey.109 Sixteen percent of respondents reported that they had experienced discrimination in health care and 6% of

100 Id. at 18, 21. 101 Glenn v. Brumby, 663 F.3d 1312, 1313-14 (11th Cir. 2011). 102 Id. at 1316-17. 103 Glenn v. Brumby, 724 F. Supp. 2d (N.D. Ga. 2010). 104 Id.; Glenn v. Brumby, 663 F.3d at 1312. 105 Vandy Beth Glenn May Soon Return to Work at Ga. General Assembly, GA. VOICE, Dec. 9, 2011, http://thegavoice.com/vandy-beth-glenn-may-soon-return-to-work-at-ga-general-assembly/. 106 E-mail from Ming Wong, National Center for Lesbian Rights, to Christy Mallory, the Williams Institute (May 7, 2009, 11:15:00 PST) (on file with authors). 107 PHILLIP RUSH CENTER, supra note 90 at 12. 108 Id. 109 Id.

27 respondents said that they had been denied housing in the past year because of their sexual orientation or gender identity.110

A 2014 audit testing study conducted by the Equal Rights Center also found evidence of housing discrimination based on sexual orientation in Georgia.111 In the study, trained testers called assisted or independent living facilities and inquired about housing options for themselves and either a same-sex or different-sex spouse.112 Each facility received a call from one tester seeking housing for a same-sex couple and one call from a tester seeking housing for an opposite-sex couple.113 All couples were given similar personal and financial characteristics, including in terms of income, occupation, rental history, and credit history.114 The study was conducted in 10 states including Georgia.115 Overall, the caller asking about housing for a same-sex couple received a poorer response (related to availability, rental price, deposits and fees, amenities and specials, and application requirements) than did the caller for the opposite-sex couple in 48% of the tests conducted.116 In Georgia, the caller asking about housing for a same-sex couple received poorer treatment in 70% of the tests.117

Recent research also sheds light on the multiple forms of discrimination faced by various LGBT groups within Georgia. For example, in response to a 2012 survey of 544 Black MSM (men who have sex with men) and transgender women in Atlanta, 13% of respondents said that they had been mistreated by health care providers because of their sexual orientation and 12% said they had been mistreated by health care providers because of their race.118

B. Wage Gaps

Wage gap analysis has been a traditional method used by economists to measure employment discrimination against women, people of color, and LGBT people. In a meta-analysis of 31 studies on sexual orientation wage gaps, Professor Marieka Klawitter concluded that almost all studies found an earnings penalty for gay men, with an average of -11%.119 For lesbians, only a

110 Id. 111 OPENING DOORS: AN INVESTIGATION OF BARRIERS TO SENIOR HOUSING FOR SAME-SEX COUPLES, THE EQUAL RIGHTS CENTER (2014), http://lgbtagingcenter.org/resources/pdfs/lgbtSeniorHousingreportFINAL.pdf. 112 Id. at 12-13. 113 Id. 114 Id. at 12. 115 Id. 116 Id. at 14. 117 Id. at 24. A 2013 national study prepared for the U.S. Department of Housing and Urban Development, which used a similar methodology, also found that same-sex couples received less favorable treatment than opposite-sex couples in the online rental market. SAMANTHA FRIEDMAN ET AL., AN ESTIMATE OF HOUSING DISCRIMINATION AGAINST SAME-SEX COUPLES (2013), https://www.huduser.gov/portal/Publications/pdf/Hsg_Disc_against_SameSexCpls_v3.pdf. 118 Lisa A. Eaton et al., The Role of Stigma and Medical Mistrust in the Routine Health Care Engagement of Black Men Who Have Sex with Men, 105 RESEARCH & PRACTICE 75, 78 (2015). 119 Marieka Klawitter, Meta-Analysis of the Effects of Sexual Orientation on Earnings, 54 INDUST. REL. 4, 13 (2014) (finding an average wage gap of -11% and a range of -30% to 0% for gay men).

28 few studies found an earnings penalty and most found a significant earnings premium, even after controlling for many relevant factors. On average, the earnings premium for lesbians was +9%.120 Klawitter concluded that her analysis “shows evidence consistent with possible discrimination—an earnings penalty—for gay men but not for lesbians.”121 A simple comparison122 of median incomes in Georgia suggests that men in same-sex couples also may face a wage gap. The median income of men in same-sex couples in the state is 9% lower than the median income of men in different-sex marriages.123

Klawitter posited several reasons to explain why gay men may face more discrimination in the workplace, including that straight men in the U.S. have less positive attitudes towards gay men than lesbians, and that straight men are more likely to be in wage-determining senior positions than women.124 Klawitter also pointed to several studies suggesting that when gay men and lesbians are more visible in the workplace, they have lower earnings.125 She also noted that other research reviews have found that lesbians who do not fit the norms for femininity have a harder time securing employment.126 Finally, it is important to keep in mind that most lesbians still earn less than most gay and heterosexual men because of the gender wage gap.127

In addition, a forthcoming study based on representative data from 27 states, finds “clear evidence that self-identified transgender individuals have significantly lower employment rates and household incomes and significantly higher poverty rates than non-transgender individuals.” The study concludes that transgender adults suffer a “household income penalty” equivalent to 12% of annual household income.128

A growing body of research supports that for many LGBT people who face discrimination along multiple axes of inequality, the resulting impact is greater than the sum of the parts. For example, a 2015 study found that the overall wage gap for men of color in same-sex couples was

120 Id. (finding an average wage gap of +9% for lesbians with a range of -25% to +43%). 121 Id. at 21. 122 Comparison does not control for factors other than sexual orientation that may impact wages, such as education and age. 123 ADAM P. ROMERO, CLIFFORD J. ROSKY, M.V. LEE BADGETT & GARY J. GATES, WILLIAMS INST., CENSUS SNAPSHOT: GEORGIA 2 (2008), http://williamsinstitute.law.ucla.edu/wp- content/uploads/GeorgiaCensus2000Snapshot.pdf. 124 Klawitter, supra note 119 at 21-22. Klawitter also notes that, consistent with the hypothesis of discrimination for gay men, jobs in the private sector show larger earnings penalties for gay men than in more highly regulated government sector jobs, but this pattern is not observed for lesbians—who have significant earnings premiums in the private and non-profit sectors, but none in government employment. 125 Id. at 22. 126 LOTTA SAMELIUS & ERIK WÅGBERG, SIDA, SEXUAL ORIENTATION AND GENDER IDENTITY ISSUES IN DEVELOPMENT (2005), http://www.sida.se/contentassets/77a0ee7f307a4ff49fa0514d080748dc/sexual-orientation- and-gender-identity-issues-in-development_718.pdf. 127 M.V. LEE BADGETT & ALYSSA SCHNEEBAUM, THE IMPACT OF WAGE EQUALITY ON SEXUAL ORIENTATION POVERTY GAPS, WILLIAMS INST. UNIV. OF CAL. L.A. SCH. OF LAW (2015), http://williamsinstitute.law.ucla.edu/wp- content/uploads/Impact-of-Wage-Equality-on-Sexual-Orientation-Poverty-Gaps-June-2015.pdf. 128 Carpenter et al., Transgender Status, Employment, and Income (forthcoming 2017), at 9 (on file with authors).

29 greater than what the sum of the race and sexual orientation wage gaps would have predicted. The gap was even more pronounced “in the bottom three quartiles of earnings, indicating that the magnifying negative interaction effects of minority race and sexual orientation status is most pronounced for lower-income workers.”129

Research also indicates that non-discrimination polices help to close sexual orientation wage gaps. A 2009 study found that in states with a sexual orientation non-discrimination law, men and women in same-sex couples had a wage premium (3% and 2% respectively) and they earned approximately 0.3% more for each year the policy was in effect.130 Similarly, two 2011 studies reported a significant impact of state non-discrimination laws on annual earnings131 and evidence that state non-discrimination laws were associated with a greater number of weeks worked for gay men -- especially in private-sector jobs.132 Furthermore, a 2015 study found that the enactment of state level non-discrimination laws increased wages by 4.2% and employment by 2% for gay men.133

C. Poverty in the LGBT Community

While national averages indicate that LGBT people may be more likely to have higher household incomes, those averages can mask that LGBT people are also disproportionately poor134 and that poverty is concentrated in certain groups within the LGBT community such as female couples, people of color, transgender people, youth, and the elderly. For example, key findings from a 2013 study on poverty in the LGBT community include:

 7.6% of lesbian couples are in poverty, compared to 5.7% of married different-sex couples;  Over 1 in 5 of children of same-sex couples are in poverty, compared to 12.1% of children of married different-sex couples;

129 Jamie H. Douglas & Michael D. Steinberger, The Sexual Orientation Wage Gap for Racial Minorities, 54 INDUST. REL. 59, 96 (2015). 130 Gary J. Gates, Cal. Center for Pop. Research, The Impact of Sexual Orientation Anti-Discrimination Policies on the Wages of Lesbians and Gay Men (2009), http://papers.ccpr.ucla.edu/papers/PWP-CCPR-2009-010/PWP-CCPR- 2009-010.pdf. 131 Amanda K. Baumle & Dudley L. Poston Jr., The Economic Cost of Homosexuality: Multilevel Analysis, 89 Soc. Forces 1005 (2011). 132 Marieka M. Klawitter, Multilevel Analysis of the Wffects of Antidiscrimination Policies on Earnings by Sexual Orientation, 30 J. . POL. ANALYSIS & MGMT. 334 (2011). See also Marieka M. Klawitter & Victor B. Flatt, The Effects of State and Local Anti-Discrimination Policies on Earnings for Gays and Lesbians, 17 J. POL. ANALYSIS & MGMT. 658 (1998). 133 Ian Burn, Legal Differences in Non-Discrimination Laws and the Effect of Employment Protections for Gay Men (Feb. 2015) (unpublished manuscript available at the Princeton University repository). The study also found that state non-discrimination laws with stronger damages, statute of limitations, and attorney's fees increase the positive impact on gay men’s wages. Id. 134 M.V. LEE BADGETT, LAURA E. DURSO & ALYSSA SCHNEEBAUM, WILLIAMS INST., NEW PATTERNS OF POVERTY IN THE LESBIAN, GAY, AND BISEXUAL COMMUNITY (2013), http://williamsinstitute.law.ucla.edu/wp- content/uploads/LGB-Poverty-Update-Jun-2013.pdf.

 African American same-sex couples have poverty rates more twice that of married different-sex African American couples; and  Lesbian couples who live in rural areas are much more likely to be poor (14.1%), compared to coupled lesbians in large cities (4.5%).

Similarly, research looking at the issue of food insecurity in the LGBT community has found that, in the year prior to the survey, more than one in four LGBT adults (27%) experienced a time when they did not have enough money to feed themselves or their family, and nearly one half of LGB adults aged 18-44 who are raising children (46%) received food stamps.135

The U.S. Transgender Discrimination Survey found that, nationally, one-third of respondents were living at or near the federal poverty line, twice the rate of poverty in the general population (29% v. 14%).136 Transgender people of color were more likely to be living in poverty, with 43% of Latino/a, 43% of American Indian, 40% of multiracial, 38% of black, 34% of Middle Eastern, and 32% of Asian respondents reporting that they were living in poverty, compared to 24% of white respondents.137

In a 2013 study on poverty, Badgett et al. suggested that social climate and policy are linked determinants of LGB poverty: “LGB people who live in non-coastal regions of the U.S. or rural communities are more likely than those in urban and coastal regions to be in poverty. These geographic areas are more likely to have social climates that are less accepting of LGB identities, increasing the stress and discrimination that LGB people face. These locales may also be less likely to offer legal protections that would guard against major life events, such as job loss or health issues that often contribute to poverty.”138

Building from that thesis, a 2015 report by the Williams Institute linked greater socio-economic disparities for LGBT people to region, a lack of legal protections, and poor social climate.139 The report found that LGBT Americans face greater social and economic disparities in states without statewide laws prohibiting sexual orientation discrimination, and in regions of the country such as the South, with a poorer social climate and fewer legal protections.140 For example, while

135 Taylor N.T. Brown, Adam P. Romero & Gary J. Gates, WILLIAMS INST., FOOD INSECURITY AND SNAP PARTICIPATION IN THE LGBT COMMUNITY (2016), http://williamsinstitute.law.ucla.edu/wp-content/uploads/Food- Insecurity-in-LGBT-Communities.pdf 136 JAMES ET AL., supra note 89 at 144. 137 Id. 138 BADGETT, DURSO & SCHNEEBAUM, supra note 134 at 25. 139 AMIRA HASENBUSH, ANDREW R. FLORES, ANGELIKI KASTANIS, BRAD SEARS & GARY J. GATES, WILLIAMS INST., THE LGBT DIVIDE: A DATA PORTRAIT OF LGBT PEOPLE IN THE MIDWESTERN, MOUNTAIN & SOUTHERN STATES (2015), http://williamsinstitute.law.ucla.edu/wp-content/uploads/LGBT-divide-Dec-2014.pdf. 140 Press Release, Williams Inst., LGBT Americans Face Greater Social and Economic Disparities in the South, Midwest, and Mountain States (Dec. 18, 2014) (available at http://williamsinstitute.law.ucla.edu/press/press- releases/lgbt-divide/). In the words of report author Gary Gates: “It’s not just that LGBT people in the Midwest and South are poorer because people in those regions tend to be poorer overall. In some cases the economic

31 same-sex couples with children in all states face an income disadvantage when compared to their different-sex married counterparts, that income gap widens from $4,300 in the states with protective laws states to $11,000 in states like Georgia that lack such laws.141

The report, The LGBT Divide, shows similar disadvantages for LGBT people in Georgia, including:  Thirty-six percent of LGBT adults in Georgia report having a household income below $24,000 compared to 28% of non-LGBT adults.142  Same-sex couples raising children have average household incomes of over $10,000 less than different-sex married couples raising children in Georgia ($73,900 for same-sex couples compared to $86,300 for different-sex married couples).143  Nearly one-third of LGBT adults (32%) in Georgia report that they do not have enough money for food compared to around one-fifth of non-LGBT adults (21%).144  Similarly, one-third of LGBT adults in Georgia report not having enough money to meet their health care needs compared to 22% of non-LGBT adults.145

Data from the NTDS suggest that transgender people in Georgia are five times as likely to be poor (20% v. 4%) and three times as likely to be unemployed (21% v. 7%) as the general population in the state.146 In addition, 23% of NTDS respondents in Georgia reported having become homeless at some point in their lives because of their gender identity.147 The authors of the NTDS concluded that the higher rates of poverty and unemployment are “likely due to employment discrimination and discrimination in school.”148

In addition, the Trans Housing Atlanta Program, a housing support organization for transgender people in Georgia, has also found high rates of homelessness among the transgender population in Atlanta, estimating that more than 2% of the city’s transgender residents are homeless.149

D. Economic Impact of LGBT Stigma and Discrimination on Employers

A growing body of research finds that supportive workplace policies and practices, such as nondiscrimination policies, have a positive impact on employer outcomes—what has been termed “the business case for diversity.” While this research has primarily focused on the inclusive disadvantages that LGBT people have relative to non-LGBT people markedly increase in those regions. In others, the advantages that you see for LGBT people in other parts of the country either disappear or reverse.” 141 HASENBUSH ET AL., supra note 139. 142 Id. at 37. 143 Id. at 35. 144 Id. at 40. 145 Id. at 41. 146 FINDINGS OF THE NATIONAL TRANSGENDER DISCRIMINATION SURVEY: GEORGIA RESULTS, supra note 91. 147 Id. 148 Id. 149 Dyana Bagby, Atlanta Effort Provides ‘Safety Net’ for Trans People, PROJECTQ.US, Nov. 28, 2016, http://www.projectq.us/atlanta/atlanta_effort_provides_safety_net_for_trans_people.

32 policies and environments of individual firms, it also suggests that state economies benefit from more inclusive legal and social environments.

To the extent that Georgia’s legal landscape and social climate is unsupportive of LGBT workers, the state is likely to experience negative economic outcomes. Research shows that LGBT workers in unsupportive environments are less likely to be open about their sexual orientation or gender identity at work, more likely to be distracted on the job, and less likely to be committed to staying at their current employer, compared to LGBT employees at supportive workplaces. Moreover, LGBT and non-LGBT workers from outside of a state that they perceive as unsupportive may be less likely to accept job offers from employers in the state.

1. The Business Case for Diversity

Over the past two decades, many employers have adopted non-discrimination polices to protect LGBT employees and created more inclusive workplace environments, even when not legally required to do so.150 In doing so, both employers and LGBT advocates have articulated the business case for diversity, drawing on research initially related to racial and gender diversity, but now frequently evaluating LGBT-supportive policies and practices.

Corporations have increasingly enacted LGBT-supportive policies, in part, because the companies’ perceive that the policies will have a positive impact on the bottom line. As of 2015, 93% of Fortune 500 companies had policies prohibiting sexual orientation discrimination and 75% included gender identity.151 Further, 64% offered domestic partner benefits and 40% had transgender-inclusive benefits policies.152

Of the 18 Fortune 500 companies headquartered in Georgia,153 17 include sexual orientation in their non-discrimination policies, and 13 also include gender identity: Home Depot,154 UPS,155 Coca-Cola,156 Delta Air Lines,157 Aflac,158 Southern Co.,159 Genuine Parts,160 First Data Corp.,161

150 M.V. LEE BADGETT, MONEY, MYTHS, AND CHANGE: THE ECONOMIC LIVES OF LESBIANS AND GAY MEN (2001); NICOLE C. RAEBURN, CHANGING CORPORATE AMERICA FROM INSIDE OUT: LESBIAN AND GAY WORKPLACE RIGHTS (2004). 151 DARYL HERRSCHAFT ET AL., HUMAN RIGHTS CAMPAIGN, DEGREES OF EQUALITY: A NATIONAL STUDY EXAMINING WORKPLACE CLIMATE FOR LGBT PEOPLE 5 (2009), https://issuu.com/hrcworkplace/docs/hrc_degrees_of_equality_2009; DEENA FIDAS & LIZ COOPER, HUMAN RIGHTS CAMPAIGN, CORPORATE EQUALITY INDEX 2016: RATING AMERICAS WORKPLACES ON LESBIAN, GAY, BISEXUAL AND TRANSGENDER EQUALITY 7 (2016), http://hrc-assets.s3-website-us-east- 1.amazonaws.com//files/assets/resources/CEI-2016-FullReport.pdf. 152 DEENA FIDAS & LIZ COOPER, supra note 151. 153 Fortune 500, Ga. Dep’t of Ec. Development, http://www.georgia.org/competitive-advantages/pro- business/fortune-500/ (last visited Oct. 20, 2016). 154 DEENA FIDAS & LIZ COOPER, supra note 151 at 57. 155 Id. at 68. 156 Id. at 80. 157 Id. at 53. 158 AFLAC, CODE OF BUSINESS CONDUCT AND ETHICS (2015), http://investors.aflac.com/corporate-governance/code- of-conduct.aspx.

HD Supply Holdings,162 Veritiv Corp.,163 SunTrust Banks,164 Mohawk Industries,165 AGCO Corp.,166 Asbury Automotive Corp.,167 NCR Corp.,168 PulteGroup Inc.,169 and Newell Brands.170

As stated in a 2015 amici brief filed by 379 large corporations in the historic marriage equality case Obergefell v. Hodges,171 the business case for diversity is clear:

Today, diversity and inclusion are a given. They are among the core principles of amici in the conduct of their businesses. The value of diversity and inclusion in the workplace has been well-documented following rigorous analyses. Amici and others recognize that diversity is crucial to innovation and marketplace success. Members of the lesbian, gay, bisexual, and transgender (“LGBT”) community are one source of that diversity.172

In fact, a 2011 study found that when enacting non-discrimination policies, 92% of the leading companies in the U.S. did so based on a general argument that diversity is good for business, and 53% made that link specifically to LGBT-supportive policies and practices.173 Similarly, a 2013 Williams Institute study found that over 60% of corporate respondents that offered transition- related health care coverage to their employees did so because of the business benefits.174 Some

159 DEENA FIDAS & LIZ COOPER, supra note 151 at 66. 160 Search Jobs, Genuine Parts, http://jobs.genpt.com/job-search-results/ (last visited Oct. 20, 2016) (click on job listings for equal employment policy). 161 DEENA FIDAS & LIZ COOPER, supra note 151 at 74. 162 Careers, HD Supply, http://hdsupply.jobs/?utm_campaign=HDSupply.com&vs=1879&utm_medium=Other&utm_source=HDSupply.co m-DE (last visited Oct. 20, 2016). 163 Veritiv, Careers at Veritiv, http://careers.veritivcorp.com/# (last visited Oct. 20, 2016) (click on job listings for equal employment policy). 164 DEENA FIDAS & LIZ COOPER, supra note 151 at 66. 165 Jeff Lorberbaum, Equal Employment Opportunity Statement, Mohawk, http://seo.nlx.org/mohawk/img/Mohawk%20EEO%20OFCCP%20Statement%20%2802028625x9C973%29.pdf (last visited Oct. 21, 2016) (sexual orientation only). 166 GLOBAL CODE OF CONDUCT, AGCO 15 (2014), http://www.agcocorp.com/content/dam/agcocorp/whoweare/Code%20of%20Conduct/AGCO%20Global%20Code% 20of%20Conduct%20October%202014.pdf (sexual orientation only). 167 Code of Business Conduct and Ethics for Directors, Officers and Employees, Feb. 16, 2011, http://phx.corporate- ir.net/phoenix.zhtml?c=130055&p=irol-govConduct (sexual orientation only). 168 DEENA FIDAS & LIZ COOPER, supra note 151 at 61. 169 PULTE GROUP, CODE OF ETHICAL BUSINESS CONDUCT 7 (2016), http://s1.q4cdn.com/101919580/files/doc_downloads/governance/Code-of-Ethical-Business-Conduct-050615-no- changes.pdf (sexual orientation only). 170 DEENA FIDAS & LIZ COOPER, supra note 151 at 93. 171 576 U.S. __ (2015). 172 Brief for 379 Employers and Organizations Representing Employers as Amici Curiae Supporting Petitioners, Obergefell v. Hodges, 576 U.S. __ (2015) (Nos. 14-556, 14-562, 14-571, 14-574), available at http://www.supremecourt.gov/ObergefellHodges/AmicusBriefs/14- 556_379_Employers_and_Organizations_Representing_Employers.pdf. 173 BRAD SEARS & CHRISTY MALLORY, WILLIAMS INST., ECONOMIC MOTIVES FOR ADOPTING LGBT-RELATED WORKPLACE POLICIES, (2011), http://williamsinstitute.law.ucla.edu/wp-content/uploads/Mallory-Sears-Corp- Statements-Oct2011.pdf. 174 JODY L. HERMAN, WILLIAMS INST., COSTS AND BENEFITS OF PROVIDING TRANSITION-RELATED HEALTH CARE COVERAGE IN EMPLOYEE HEALTH BENEFIT PLANS: FINDINGS FROM A SURVEY OF EMPLOYERS 3 (2013),

34 of the specific business-related outcomes that have motivated employers to adopt LGBT- supportive policies include: recruiting and retaining talented employees, sparking new ideas and innovations, attracting and serving a diverse customer base, and enhancing employee productivity.175

Academic research conducted over the past two decades supports the business case for LGBT inclusion. In 2013, the Williams Institute reviewed 36 academic studies examining the effects of LGBT-supportive policies, and concluded that the research supports the existence of many positive links between LGBT-supportive policies or workplace climates and outcomes that will benefit employers.176

Figure II.a. Number of studies conducted prior to 2013 showing relationship between LGBT- supportive policies or workplace climates and individual-level outcomes

16 14 3 8

3 3 1

1 1 1 1 1 2 3 4 Greater job Improved Increased job More Improved Less Increased commitment health satisfaction openness workplace discrimination productivity outcomes about being relationships LGBT Positive business relationship No business relationship Negative business relationship

A 2014 literature review of academic studies similarly concluded that LGBT-supportive policies have positive effects on LGBT employees in terms of mental health, workplace relationships, and job satisfaction.177 Many of the underlying studies included in the 2013 and 2014 literature

http://williamsinstitute.law.ucla.edu/wp-content/uploads/Herman-Cost-Benefit-of-Trans-Health-Benefits-Sept- 2013.pdf. 175 Id.; SEARS & MALLORY, supra note 173. 176 M.V. LEE BADGETT, LAURA DURSO, ANGELIKI KASTANIS, & CHRISTY MALLORY, WILLIAMS INST., THE BUSINESS IMPACT OF LGBT SUPPORTIVE WORKPLACE POLICIES, (2013), http://williamsinstitute.law.ucla.edu/wp- content/uploads/Business-Impact-LGBT-Policies-Full-May-2013.pdf. 177 Ozeren Emir, Sexual Orientation Discrimination in the Workplace: A Systematic Review of Literature, 109 PROCEDIA – SOC. & BEHAV. SCI. 1203, 1208-10 (2014).

35 reviews focused on three specific areas of the case for business diversity: employee recruitment, productivity/engagement, and retention. Studies focused on these outcomes have shown that:

Recruitment

 LGBT-supportive polices and workplace environments are important to LGBT employees when they are deciding where to work.178  LGBT employees prefer to work in states with more supportive laws and social environments.179  Employers are more likely to cite problems with recruitment of LGBT employees when LGBT-supportive policies are not in place.180  Many non-LGBT jobseekers also value LGBT-supportive policies and practices,181 particularly younger and more highly educated workers.182

Productivity/Engagement

 LGBT-supportive policies and supportive workplace environments are associated with less discrimination and a greater likelihood that LGBT people will be out at work. Both outcomes have been linked to greater workplace engagement, improved psychological health, increased productivity, and job satisfaction.183

178 Harris Interactive, Majority of Americans Believe Gay and Lesbian Couples in Committed Relationships Should Receive Equal Workplace Benefits as Heterosexual Married Couples, PRNEWSWIRE.COM, Oct. 4, 2010, http://www.prnewswire.com/news-releases/majority-of-americans-believe-gay-and-lesbian-couples-in-committed- relationships-should-receive-equal-workplace-benefits-as-heterosexual-married-couples-104293928.html; SYLVIA ANN HEWLETT, TODD SEARS, KAREN SUMBERG & CHRISTINA FARGNOLI, THE POWER OF “OUT” 2.0: LGBT IN THE WORKPLACE 29 (2013). 179 Out & Equal et al., Most Americans Say Employers Should Never Discriminate, Even on Religious Grounds, HARRIS POLL, Oct. 30, 2014, http://media.theharrispoll.com/documents/FINAL_2014_Out_Equal_Workplace_Survey_Release_10.30.2014.pdf. 180 Russell Shrader, Broadening Partner Benefits to Improve Recruitment and Retention among LGBT Employees in United States Institutions of Higher Education, 40 PUBLIC ADMIN. Q. 180 (2016). 181 SYLVIA ANN HEWLETT & KENJI YOSHINO, OUT IN THE WORLD: SECURING LGBT RIGHTS IN THE GLOBAL MARKET PLACE 20 (2016); Harris Interactive, Majority of Americans Believe Gay and Lesbian Couples in Committed Relationships Should Receive Equal Workplace Benefits as Heterosexual Married Couples, PRNEWSWIRE.COM, Oct. 4, 2010, http://www.prnewswire.com/news-releases/majority-of-americans-believe-gay- and-lesbian-couples-in-committed-relationships-should-receive-equal-workplace-benefits-as-heterosexual-married- couples-104293928.html. 182 Andrew R. Flores, Attitudes toward Transgender Rights: Perceived Knowledge and Secondary Interpersonal Contact 3 POLITICS, GROUPS, AND IDENTITIES 398 (2015); Ilsa L. Lottes & Peter J. Kuriloff, The Impact of College Experience of Political and Social Attitudes, 31 SEX ROLES 31 (1994); Gay Marriage, PEWRESEARCH.ORG, http://www.pewresearch.org/data-trend/domestic-issues/attitudes-on-gay-marriage/ (last visited May 3, 2016). 183 Yuan-Hui Tsai, Sheng-Wuu Joe, Wei-Te Liu, Chieh-Peng Lin, Chou-Kang Chiu & Chaio-Chih Tang, Modeling Job Effectiveness in the Context of Coming Out as a Sexual Minority: A Socio-Cognitive Model, 9 REV. MANAG. SCI. 197 (2015); SYLVIA ANN HEWLETT & KENJI YOSHINO, OUT IN THE WORLD: SECURING LGBT RIGHTS IN THE GLOBAL MARKET PLACE 20 (2016); BADGETT ET AL., supra note 176.

 When LGBT employees are open about their sexual orientation or gender identity at work, teams that include both LGBT and non-LGBT workers may be more productive and more competent.184  These outcomes could lead to economic losses for state and local governments, as employers, and private businesses Georgia. Since the state government of Georgia employs over 67,000 people,185 its own loss in productivity from a discriminatory environment could be significant.

Retention

 LGBT employees in supportive environments are more likely to say they are proud to work for their employer.186  LGBT employees in unsupportive environments feel less committed to their jobs.187  When a worker leaves a job, costs include a loss in productivity due to the unfilled position, the costs of hiring and training a new employee, and lower initial rates of productivity of the new employee.188 A 2012 review of academic articles concluded that businesses spend about one-fifth of an employee’s annual salary to replace a worker.189 This rate was very consistent for most types of workers, except for executives and highly skilled positions, which have much greater turnover costs – up to 213% of annual salary.190 Based on the average annual mean wage in Georgia,191 public and private employers are at risk of losing approximately $9,100, on average, for each employee that

184 Benjamin A. Everly, Margaret J. Shih & Geoffrey C. Ho, Don’t Ask, Don’t Tell? Does Disclosure of Gay Identity Affect Partner Performance?, 48 J. EXPERIMENTAL SOCIAL PSYCH. 407, 409 (2012).; SYLVIA ANN HEWLETT & KENJI YOSHINO, OUT IN THE WORLD: SECURING LGBT RIGHTS IN THE GLOBAL MARKET PLACE 22,63 (2016). 185 GA. DEP’T OF ADMIN. SVCS., GEORGIA STATE GOVERNMENT: FY2015 WORKFORCE REPORT 8 (2015), http://doas.ga.gov/assets/Human%20Resources%20Administration/Workforce%20Planning%20Resources/FY2015 %20Workforce%20Report.pdf. 186 HEWLETT & YOSHINO, supra note 184 at 20. 187 Belle R. Ragins, Romila Singh, John M. Cornwell, Making the Invisible Visible: Fear and Disclosure of Sexual Orientation at Work, 92 J. APPLIED PSYCHOL. 1103, 1114 (2007); Scott B. Button, Organizational Efforts to Affirm Sexual Diversity: A Cross-Level Examination, 86 J. APPLIED PSYCHOL. 17, 23 (2001); IAN JOHNSON & DARREN COOPER, OUT NOW GLOBAL, LGBT DIVERSITY: SHOW ME THE BUSINESS CASE 4, 47 (2015), http://www.outnowconsulting.com/media/13505/Report-SMTBC-Feb15-V17sm.pdf; SYLVIA ANN HEWLETT & KAREN SUMBERG, THE POWER OF OUT (2011); DEENA FIDAS, LIZ COOPER & JENNA RASPANTI, HUMAN RIGHTS CAMPAIGN, THE COST OF THE CLOSET AND THE REWARDS OF INCLUSION 22 (2014), http://hrc-assets.s3-website-us- east-1.amazonaws.com//files/assets/resources/Cost_of_the_Closet_May2014.pdf; Blazovich et al., supra note 193 at 4. 188 HEATHER BOUSHEY & SARAH JANE GLYNN, CTR. FOR AM. PROGRESS, THERE ARE SIGNIFICANT BUSINESS COST TO REPLACING EMPLOYEES (2012), https://www.americanprogress.org/issues/labor/report/2012/11/16/44464/there- are-significant-business-costs-to-replacing-employees/. 189 Id. 190 Id. 191 The annual mean wage in Georgia is $45,420. May 2015 State Occupational Employment and Wage Estimates: Georgia, Bureau of Labor Stats., http://www.bls.gov/oes/current/oes_GA.htm#otherlinks (last visited Oct. 20, 2016).

leaves the state or changes jobs because of the negative environment facing LGBT people.192

In addition, several studies have linked LGBT-supportive policies and workplace environments to bottom line gains, including improved productivity, profitability, and stock prices when compared to firms without such polices.193

This body of research suggests if Georgia were to move toward a more supportive legal landscape and social climate for LGBT people, public and private employers in the state would likely be able to more easily recruit employees from other places and retain current employees, and would likely see improved employee productivity.

E. Illustration of Costs to Georgia Associated with Stigma and Discrimination

As discussed above, discrimination in employment, housing, and other areas of life can result in LGBT people being unemployed, underemployed, underpaid, less productive, and more reliant on government benefits and social services. Here we use available data to estimate the fiscal impact of discrimination in two of many possible areas by estimating the costs associated with Medicaid participation and use of shelters that result from housing discrimination against transgender people in Georgia.

We use prevalence findings from the NTDS, coupled with estimates of the size of the transgender Georgia population (reported in Section I.A.), to estimate the number of transgender adults in Georgia who have experienced specific forms of anti-transgender bias.

192 Calculated by applying the average replacement cost of 20% annual salary to the average annual salary in Georgia. Id.; BOUSHEY & GLYNN, supra note 188. 193 CREDIT SUISSE ESG RESEARCH, LGBT: THE VALUE OF DIVERSITY (2016), http://www.slideshare.net/creditsuisse/lgbt-the-value-of-diversity (finding that a basket of 270 companies supporting LGBT employees outperformed the market in terms of stock price, return on equity (ROE), cash flow returns, and economic profit generation, and that stocks of companies who have LGBT people in senior roles outperform those who do not); Feng Li and Venky Nagar, Diversity and Performance, 59 MGMT. SCI. 529 (2013) (finding improved operating returns on assets (ROA) after companies adopt domestic partner benefits for same-sex couples); Janell L. Blazovich, Kristin A. Cook, Janet McDonald Huston, & William R. Strawser, Do Gay-Friendly Corporate Policies Enhance Firm Performance? 35-36 (Apr. 2013) (unpublished manuscript, available online) (finding that “firms with gay-friendly policies benefit on key factors of financial performance, which … increase the investor perception of the firm as proxied by stock price movements.”). See also BADGETT ET AL., supra note 176 at 23 (“A … study found that the more robust a company’s LGBT friendly policies, the better its stock performed over the course of four years (2002-2006), compared to other companies in the same industry over the same period of time.”); Garrett D. Voge, Investor Valuation: LGBTQ Inclusion and the Effect on a Firm’s Financials (unpublished manuscript, available at the University of Arizona Campus Repository) (2013) http://arizona.openrepository.com/arizona/handle/10150/297778 (finding that institutional investors value LGBT- supportive corporate policies as evaluated by stock price increases after release of LGBT Corporate Equality Index report by the Human Rights Campaign).

Figure III.a. Discrimination in Employment and Housing on the Basis of Gender Identity among NTDS Respondents in Georgia (n=167) Source: National Transgender Discrimination Survey, 2011

60%

34% 26% 24% 15%

Denied Lost Job Not Hired Denied a Home Evicted Promotion or Apartment Discrimination in Employment Discrimination in Housing

Job loss, including due to anti-transgender bias, can result in economic insecurity and loss of a variety of benefits, such as health care coverage. People who experience job loss may become eligible for and enroll in Medicaid. Estimates from the Centers for Medicare and Medicaid Services find that as of August 2016, 1.7 million people were enrolled in Medicaid or the Children’s Health Insurance Program (CHIP) in Georgia.194

Based on findings from the NTDS, we estimate that 4.9% of transgender adults in Georgia who have lost a job due to anti-transgender bias have enrolled in Medicaid.195 An estimated 0.9% of transgender adults in Georgia who have not lost a job due to anti-transgender bias have enrolled in Medicaid. We attribute the difference in Medicaid enrollment between these two groups (4.0%) to the elevated need for Medicaid coverage resulting from employment discrimination based on gender identity. Applying this figure (4.0%) to the population of transgender adults in Georgia who have lost a job because of gender identity bias, we estimate that 757 transgender Georgians have enrolled in Medicaid because of employment discrimination on the basis of gender identity.196 In 2011, average state spending per Medicaid enrollee in Georgia was

194 Medicaid & CHIP in Georgia, Medicaid.gov, https://www.medicaid.gov/medicaid/by- state/stateprofile.html?state=georgia (last visited Dec. 8, 2106). 195 Prevalence estimates for those who have lost a job due to bias and are currently enrolled in Medicaid are based on a combined sample of NTDS respondents from Georgia, North Carolina, South Carolina, Florida, Alabama, and Tennessee. There were too few respondents from Georgia for us to determine robust estimates with a sample of only Georgia respondents. We compared all five neighboring states (North Carolina, South Carolina, Florida, Alabama, and Tennessee) with Georgia on a number of key variables, including demographics and Medicaid program eligibility among other variables, to determine if grouping these states was appropriate. We concluded it was appropriate to group them together for purposes of this study. We also assume in our analysis that the experiences of respondents from this region to the NTDS, a convenience survey, mirror those of all transgender individuals in the region. 196 According to the NTDS, 34% of transgender adults in Georgia have experienced job loss due to anti-transgender bias, which we estimate to be 18,921 individuals. Multiplying this figure by 4.0% yields 757 transgender adults who are enrolled in Medicaid due to job loss resulting from anti-transgender bias.

39 approximately $1,384.197 Therefore, we estimate that employment discrimination experienced by transgender adults on the basis of gender identity costs Georgia approximately $1,048,000 annually in state Medicaid expenditures.

Individuals who are denied housing because of anti-transgender bias may experience homelessness and seek housing at a homeless shelter. We estimate that 2.9% of transgender adults in Georgia who have been denied a home or apartment due to anti-transgender bias are currently experiencing homelessness.198 An estimated 1.2% of transgender adults in Georgia who have not been denied a home or apartment due to anti-transgender bias are currently experiencing homelessness. Therefore, we estimate that approximately 1.7% of transgender adults in Georgia, or 227 individuals, may be currently experiencing homelessness because of housing discrimination based on their gender identity.199

These individuals may seek temporary housing at a homeless shelter in the state. A 2010 study by the U.S. Department of Housing and Urban Development (HUD) estimated that the cost of housing an individual experiencing homelessness at a shelter for an average length of stay based on cost data from three cities (Des Moines, IA; Houston, TX; and Jacksonville, FL) is approximately $2,100.200 This is likely a conservative estimate of costs to shelter facilities as the HUD estimate only considers those experiencing homelessness for the first time and individuals only, not families. Applying this estimate to the 227 transgender residents of Georgia whom we estimate to be currently experiencing homelessness due to housing discrimination on the basis of gender identity, we estimate that this form of housing discrimination may cost Georgia up to $477,000 annually in shelter expenditures.

Reducing or eliminating discrimination against LGBT people in employment and housing can be a cost-saving measure for the state of Georgia. As our illustration shows, to the extent that a

197 Medicaid per enrollee figure available at Henry J. Kaiser Family Foundation, Georgia: Medicaid Spending per Enrollee (Full or Partial Benefit), FY2011 http://kff.org/medicaid/state-indicator/medicaid-spending-per-enrollee/ (last visited Nov. 18, 2016). More recent data on spending per Medicaid enrollee is not available. Further calculations to determine the state proportion of expenditures, based off of the 2011 Federal Medical Assistance Percentage or FMAP (65.33%), were conducted by the authors. We believe this is a conservative estimate as the average per enrollee spending estimate includes Medicaid spending for eligible children who consistently have lower spending levels than adults. Furthermore, the FMAP for Georgia has increased, meaning the federal government provides a greater share of Medicaid expenditures. It is unclear how these changes since 2011 have impacted the per-enrollee state expenditure for Medicaid. Georgia has not adopted Medicaid expansion under the Patient Protection and Affordable Care Act (ACA). 198 Prevalence estimates for those who have experienced housing discrimination and are currently experiencing homelessness are based on a combined sample of NTDS respondents from Georgia, North Carolina, South Carolina, Florida, Alabama, and Tennessee. See supra note 195. 199 According to the NTDS, 24 percent of transgender adults in Georgia have been denied a home or apartment because of anti-transgender bias, which we estimate to total 13,360 individuals. Multiplying this figure by 1.7 percent yields 227 transgender adults who have experienced discrimination in housing and are currently experiencing homelessness. 200 The HUD estimate refers to costs to shelter facilities. In Georgia, the state government does provide financial support for shelter facilities. It also administers funding provided by the federal government in the form of Emergency Solutions Grants (ESG). Facilities may also receive support from local governments, grants, charitable contributions, and other sources.

40 statewide prohibition against gender identity discrimination can reduce or eliminate bias in employment and housing against transgender individuals, the state of Georgia could save up to $1.5 million annually in Medicaid and shelter expenses alone. These particular costs represent only two of a variety of costs that can accrue to the state and localities when LGBT individuals face discrimination.

SECTION IV. ECONOMIC IMPLICATIONS OF BULLYING AND FAMILY REJECTION OF LGBT YOUTH

School-based bullying of LGBT youth is pervasive201 and increases the likelihood of school dropout202, poverty203, and suicide204. Educational attainment, especially high school completion, is a significant determinant of economic status and health across the life course.205 As a result, early experiences of harassment may not only shape the economic lives of LGBT people, but also have a negative effect on a state’s economy. As the authors of the USAID and Williams Institute study explained, “education discrimination excludes LGBT students from opportunities to increase their human capital (that is, their knowledge and skills) and to be employed in higher- skilled jobs that contribute to overall economic productivity.”206

To the extent that Georgia’s legal landscape and social climate foster an environment that is not inclusive of LGBT youth, the state is likely to experience losses in human capital, as well as costs associated with an overrepresentation of LGBT youth in foster care, the juvenile justice system, and among the homeless. This section presents data on experiences of LGBT youth in Georgia and throughout the U.S., and reviews research that links these experiences to negative outcomes for LGBT youth that, in turn, can lead to future reductions in economic output.

201 See, e.g., Kate L. Collier, Gabriël van Beusekom, Henny M.W. Bos & Theo G.M. Sandfort, Sexual Orientation and Gender Identity/Expression Related Peer Victimization in Adolescence: A Systematic Review of Associated Psychological and Health Outcomes, 50 J. SEX ROLES 299 (2013); Elise D. Berlan et al., Sexual Orientation and Bullying among Adolescents in the Growing Up Today Study, 46 J. ADOLESCENT HEALTH 366 (2010); Laura Kann et al., Sexual Identity, Sex of Sexual Contacts, and Health-Risk Behaviors Among Students in Grades 9–12 — Youth Risk Behavior Surveillance, Selected Sites, United States, 2001–2009, 60 MORBIDITY AND MORTALITY WEEKLY REPORT 1, 11 (2011); JOSEPH G. KOSCIW ET AL., GLSEN, THE 2015 NATIONAL SCHOOL CLIMATE SURVEY: THE EXPERIENCES OF LESBIAN, GAY, BISEXUAL, TRANSGENDER, AND QUEER YOUTH IN OUR NATIONS SCHOOLS (2015), available at https://www.glsen.org/sites/default/files/GLSEN%202015%20National%20School%20Climate%20Survey%20%28 NSCS%29%20-%20Full%20Report.pdf; EMILY A. GREYTAK, JOSEPH G. KOSCIW & ELIZABETH M. DIAZ, GLSEN, HARSH REALITIES: THE EXPERIENCES OF TRANSGENDER YOUTH IN OUR NATION’S SCHOOLS (2009), available at http://www.teni.ie/attachments/c95b5e6b-f0e6-43aa-9038-1e357e3163ea.PDF. 202 Jorge Srabstein & Thomas Piazza, Public Health, Safety and Educational Risks Associated with Bullying Behaviors in American Adolescents, 20 INT. J. ADOLESCENT MED. HEALTH 223 (2008). 203 Sarah Brown & Karl Taylor, Bullying, Education and Earnings: Evidence from the National Child Development Study, 27 ECONOMICS EDUC. REV. 387 (2008). 204 Young Shin Kim & Bennett Leventhal, Bullying and Suicide. A Review, 20 INT. J. ADOLESCENT MED. HEALTH 133 (2008). 205 John Lynch & George Kaplan, Socioeconomic Factors, in SOCIAL EPIDEMIOLOGY 13 (Lisa F. Berkman & Ichiro Kawachi, eds., 2000). 206 M.V. LEE BADGETT, SHEILA NEZHAD, KEES WAALDIJK & YANA VAN DER MEULEN RODGERS, supra note 81 at 26.

A. Bullying and Harassment of LGBT Youth Documented in Surveys 1. Middle School and High School

Data from several sources indicate that LGBT youth in Georgia face harassment, bullying, and exclusion in secondary and post-secondary schools.

The Centers for Disease Risk Control and Prevention (CDC) recently published an analysis of 2015 Youth Risk Behavior Survey (YRBS) data on LGB youth from multiple states and certain large urban school districts, including DeKalb County, GA, which included a measure of sexual orientation on its survey.207 This analysis compared LGB to non-LGB 9th through 12th graders on a variety of indicators of health and well-being. The 2015 DeKalb County YRBS data indicate that LGB youth in the county experience higher rates of being bullied and threatened with violence than non-LGB youth.

Figure IV.a. 12-month Teasing & Bullying of High School Students in DeKalb County, Georgia, by Sexual Orientation Source: Laura Kann et al., Sexual Identity, Sex of Sexual Contacts, and Health-Related Behaviors among Students in Grades 9 – 12, United States and Selected Sites, 2016

34.6%

24.4% 20.8% 14.2% 12.8% 12.0% 8.0% 6.6%

Bullied at school Electronically bullied In a physical fight Threatened or injured with a weapon on school property LGB Non-LGB

In DeKalb County, LGB students were more likely to report being bulled at school (20.8% v. 12.8%)208 and electronically bulled (12.0% v. 8.0%)209 in the 12 months prior to the survey than non-LGB students. In addition, LGB students were more likely to report being in a fight in the 12 months prior to the survey (34.6% v. 24.4%)210 and were more than twice as likely to report

207 Laura Kann et al., Sexual Identity, Sex of Sexual Contacts, and Health-Related Behaviors Among Students in Grades 9–12 – United States and Selected Sites, 2015, 65 MORBIDITY AND MORTALITY WEEKLY REPORT 1, 83 (2016). 208 Id. at 103. 209 Id. at 104. 210 Id. at 99.

43 being threatened or injured with a weapon on school property (14.2% v. 6.6%)211. Not surprisingly, LGB students were more likely than non-LGB students to report missing school because they felt unsafe at least once in the month prior to the survey (13.9% v. 8.7%).212

Findings from the 2015 DeKalb County YRBS are consistent with YRBS findings from 25 states and 18 other large urban school districts.213 In addition, a 2011 CDC meta-analysis of YRBS data collected from 2001 through 2009 also found that, nationally, LGB students were more likely to experience bullying and violence at school than non-LGB students, suggesting that bullying is a chronic problem.214 Bullying and harassment of LGBT youth has also been documented in Georgia, beyond DeKalb County. For instance, the 2013 GLSEN National School Climate survey reported that: 80% of Georgia middle- and high-school students responding to the survey said they had experienced verbal harassment based on their sexual orientation in the year prior to the survey, and 56% said they had experienced verbal harassment based on their gender expression.215 Many students also reported experiencing sexual harassment (58%), cyber bullying (49%), and physical harassment (32%). Most of the students who experienced harassment did not report it to staff (65%) or their families (56%).216 Of those who reported incidents to school authorities, only 26% said that the report resulted in effective intervention.217

Additionally, in response to the National Transgender Discrimination Survey, 83% of Georgia participants who identified as transgender while in grades K-12 reported experiencing harassment at school, and 39% reported experiencing physical assault at school because of their gender identity.218 Similarly, 46% of 2,124 LGBT adults in Georgia who completed a 2011 survey said that they had been harassed or bullied when they were in middle or high school.219

2. Higher Education

Two universities in Georgia, the University of Georgia and Georgia Tech, have conducted campus climate surveys that measure LGBT inclusion on their campuses. The University of

211 Id. at 98. 212 Id. at 102. 213 Id. 214 Sexual Identity, Sex of Sexual Contacts, and Health-Risk Behaviors Among Students in Grades 9–12 — Youth Risk Behavior Surveillance, Selected Sites, United States, 2001–2009, supra note 201 at 11. 215 GLSEN, SCHOOL CLIMATE IN GEORGIA 1 (2014), https://www.glsen.org/sites/default/files/GLSEN%202013%20Georgia%20State%20Snapshot.pdf. 216 Id. 217 Id. 218 NAT’L CTR. FOR TRANSGENDER EQUAL. & NAT’L GAY AND LESBIAN TASK FORCE, FINDINGS OF THE NATIONAL TRANSGENDER DISCRIMINATION SURVEY, GEORGIA RESULTS, http://www.transequality.org/sites/default/files/docs/resources/ntds_state_ga.pdf (last visited Dec. 19, 2016). 219 PHILLIP RUSH CENTER, supra note 90 at 1.

Georgia’s survey of students, faculty, and staff, which included 1,058 LGBQ220 respondents and 66 respondents who identified as transgender or genderqueer, found higher levels of discrimination and discomfort among LGBTQ individuals compared to their non-LGBTQ peers.221 Nearly half (65%) of the transgender and genderqueer respondents reported experiencing exclusionary (e.g., shunned, ignored), intimidating, offensive, or hostile conduct, and 47% of transgender and genderqueer respondents who reported such conduct said it was because of their gender identity.222 By comparison, 16% of all cisgender female respondents and 13% of cisgender male respondents reported experiencing exclusionary, intimidating, offensive, or hostile conduct.223 Among LGBQ respondents, 48% said they had experienced exclusionary, intimidating, offensive, or hostile conduct, compared to 26% of heterosexual respondents.224

Additionally, 12% of transgender and genderqueer respondents said they were uncomfortable or very uncomfortable with the campus climate compared to 6% of cisgender females and 4% of cisgender males.225 Similarly, 11% of LGBQ respondents said they were uncomfortable or very uncomfortable with the campus climate, compared to 6% of heterosexual respondents.226 Several LGBTQ students also shared examples of the types of harassment they faced on or around campus, including being called derogatory names and having their picture taken without consent.227

Georgia Tech’s survey also found that LGB students were less likely to find the campus environment welcoming and inclusive than non-LGB students.228 Forty-one percent of LGB undergraduates and 26% of LGB graduate students said they had experienced instances of marginalization on campus (e.g., a sense of exclusion or feeling left out), compared to 22% of non-LGB undergraduates and 16% of non-LGB graduate students.229 In addition, 57% of all undergraduates and 20% of all graduate students said that they heard disparaging remarks about LGB people on campus.230 B. Family Rejection For many youth, the challenges that they face at school are compounded by unaccepting families. This can further impair their ability to learn and graduate. Research shows that many LGBT

220 LGBQ respondents included those who identified as lesbian, gay, bisexual, pansexual, queer, or questioning. RANKIN & ASSOCIATES, UNIVERSITY OF GEORGIA CAMPUS CLIMATE RESEARCH STUDY III (2016), http://diversity.uga.edu/uploads/documents/UGA-campus-climate-2016-full-report.pdf. 221 Id. 222 Id. at 79. 223 Id. 224 Id. at 97. 225 Id. at 52. 226 Id. at 58. 227 Id. at 92. 228 JONATHAN GORDON, GEORGIA TECH, GT CLIMATE ASSESSMENT SURVEY REPORT 3.11-3.12 (2013), http://facultygovernance.gatech.edu/GFGFAAS2014-102213-M-Attach1.pdf. 229 Id. at 3.13. 230 Id. at 3.16-3.17.

45 youth have strained relationships with their families, or face abuse by their parents, because of their sexual orientation and gender identity.231 For example, in one study about the challenges that youth face, LGBT youth ranked non-accepting families as the most important problem in their lives (26%), followed by school and bullying problems (21%), and fear of being open about being LGBT (18%).232 In contrast, non-LGBT youth ranked classes/exams/grades (25%), college/career (14%), and financial pressures related to college or job (11%) as the most important problems in their lives.233 C. Health Disparities among LGBT Youth Patterns of poor health and health risk observed among LGBT adults have been widely documented among LGBT adolescents as well. For example, the CDC analysis of 2015 YRBS data from 25 states and 19 large urban school districts reported disproportionately high rates of poor mental health and health risk behavior, commonly considered stress coping behavior,234 that disfavor LGB youth.235 Analyses of YRBS data from 2001-2009 also indicated sexual orientation disparities in mental health and health risk behaviors, suggesting that intervention efforts to date have been insufficient.236 Finally, a 2011 meta-analysis of 18 studies found that compared to non-LGB youth, LGB youth were more likely to report depression and more than twice as likely to think about suicide, over three times as likely to report that they had attempted

231 E.g., Darrel Higa, Marilyn J. Hoppe, Taryn Lindhorst, Shawn Mincer, Blair Beadnell, Diane M. Morrison, Elizabeth A. Wells, Avry Todd & Sarah Mountz, Negative and Positive Factors Associated with the Well-Being of Lesbian, Gay, Bisexual, Transgender, Queer, and Questioning (LGBTQ) Youth, 46 YOUTH SOC'Y 1, 8 (2012); Barbara Fedders, Coming Out for Kids: Recognizing, Respecting, and Representing LGBTQ Youth, 6 NEV. L.J. 774, 788 (2006); Anthony R. D'Augelli, Arnold H. Grossman & Michael T. Starks, , Parents Awareness of Lesbian, Gay, and Bisexual Youths’ Sexual Orientation, 67 J. MARRIAGE & FAMILY 474 (2005); Les Whitbeck, Xiaojin Chen, Dan R. Hoyt, Kimberly Tyler & Kurt D. Johnson, Mental Disorder, Subsistence Strategies, and Victimization among Gay, Lesbian, and Bisexual Homeless and Runaway Adolescents, 41 J. SEX RESEARCH 329 (2004); Brian N. Cochran, Angela J. Stewart, Joshua A. Ginzler & Ana Mari Cauce, Challenges Faced by Homeless Sexual Minorities: Comparison of Gay, Lesbian, Bisexual, and Transgender Homeless Adolescents with Their Heterosexual Counterparts, 92 AM. J. PUB. HEALTH 733 (2002); Bryan E. Robinson, Lynda Henley Walters & Patsy Skeen , Responses of Parents to Learning that their Child is Homosexual and Concern over AIDS: A National Survey, 1 J. HOMOSEXUALITY 59, 67 (1989); CHRISTY MALLORY, BRAD SEARS, AMIRA HASENBUSH & ALEXANDRA SUSMAN, WILLIAMS INST., ENSURING ACCESS TO MENTORING PROGRAMS FOR LGBTQ YOUTH (2014), http://williamsinstitute.law.ucla.edu/wp-content/uploads/Access-to-Youth-Mentoring-Programs.pdf. 232 HUMAN RIGHTS CAMPAIGN, GROWING UP LGBT IN AMERICA: HRC YOUTH SURVEY REPORT KEY FINDINGS 2 (2012), http://hrc-assets.s3-website-us-east-1.amazonaws.com//files/assets/resources/Growing-Up-LGBT-in- America_Report.pdf. 233 Id. 234 See, e.g., Richard T. Liu & Lauren B. Alloy, Stress Generation in Depression: A Systemic Review of the Empirical Literature and Recommendations for Future Study, 30 CLIN. PSYCH. REV. 582 (2010); Jon. D. Kassel, Laura R. Stroud, Carol A. Paronis, Smoking, Stress, and Negative Affect: Correlation, Causation, and Context Across States of Smoking, 129 PSYCHOL. BULLETIN 129 (2003); Kathleen T. Brady & Susan C. Sonne, The Role of Stress in Alcohol Use, Alcoholism Treatment, and Relapse, 23 ALCOHOL RESEARCH & HEALTH 263 (1999). 235 Id. 236 See, e.g., Laura Kann et al., Sexual Identity, Sex of Sexual Contacts, and Health-Risk Behaviors Among Students in Grades 9–12 — Youth Risk Behavior Surveillance, Selected Sites, United States, 2001–2009, supra note 201.

46 suicide, and more than four times as likely to have attempted suicide such that they needed medical attention.237

Other studies have linked health disparities to discrimination and unsupportive environments. For example, a 2011 study of youth in Oregon found that, in general, LGB youth were more likely to have attempted suicide than heterosexual youth, and that LGB youth in unsupportive school environments were at a 20% greater risk of attempting suicide than were LGB youth in supportive school environments.238 High levels of school-based victimization have been associated with higher levels of illicit drug use and sexual risk behavior.239 Research has also linked unsupportive family environments to depression and suicidality,240 high levels of stress,241 tobacco use,242 and illicit drug use243 in LGB youth and young adults.

Studies of transgender youth have also found evidence of associations between discrimination, abuse, and poorer health. A 2016 study found that transgender people who had been denied access to college bathrooms that matched their gender identity were 1.5 times more likely to have attempted suicide than those who were not denied bathroom access, and those who had been denied access to campus housing that matched their gender identity were 1.6 times more likely to have attempted suicide than those who had not been denied access.244 In addition, a 2010 study found that transgender respondents who had experienced gender-related abuse in their youth reported significantly higher rates of major depression and suicidality during that period of their lives than those who had not had such experiences.245

237 Michael P. Marshal, Laura J. Dietz, Mark S. Friedman, Ron Stall, Helen Smith, James McGinley, Brian C. Thoma, Pamela J. Murray, Anthony D'Augelli & David A. Brent, Suicide and Depression Disparities Between Sexual Minority and Heterosexual Youth: A Meta-Analytic Review, 49 J. ADOL. HEATH 115 (2011). 238 Mark L. Hatzenbuehler, The Social Environment and Suicide Attempts in Lesbian, Gay, and Bisexual Youth, 27 PEDIATRICS 896 (2011). 239 Daniel E. Bontempo & Anthony D’Augelli, Effects of At-School Victimization and Sexual Orientation on Lesbian, Gay, or Bisexual Youths’ Health Risk Behavior, 30 J. ADOL. HEALTH 362 (2002); Kann et al., supra note 201 at 11. 240 Another study found that LGBT youth who were rejected by their families in adolescence were 5.9 times more likely to report high levels of depression and 8.4 times more likely to have attempted suicide than LGBT youth who had not been rejected. Caitlin Ryan, David Huebner, Rafael M. Diaz & Jorge Sanchez, Family Rejection as a Predictor of Negative Health Outcomes in White and Latino Lesbian, Gay, and Bisexual Young Adults, 123 PEDIATRICS 346 (2009). 241 Mark L. Hatzenbuehler & Katie A. McLaughlin, Structural Stigma and Hypothalamic-Pituitary-Adrenocortical Axis Reactivity in Lesbian, Gay, and Bisexual Young Adults, 47 ANN. BEHAV. MED. 39 (2014). 242 Mark L. Hatzenbuehler, Hee-Jin Jun, Heather L. Corliss & S. Bryn Austin, Structural Stigma and Cigarette Smoking in a Prospective Cohort Study of Sexual Minority and Heterosexual Youth, 47 ANN. BEHAV. MED. 48 (2014). 243 Mark L. Hatzenbuehler, Hee-Jin Jun, Heather L. Corliss & S. Bryn Austin, Structural Stigma and Sexual Orientation Disparities in Adolescent Drug Use, 46 ADDICTIVE BEHAVIORS 14 (2015). 244 Kristie L. Seelman, Transgender Adults’ Access to College Bathrooms and Housing and the Relationship to Suicidality, J. HOMOSEXUALITY 1 (2016). 245 Larry Nuttbrock, Sel Hwahng, Walter Bockting, Andrew Rosenblum, Mona Mason, Monica Macri & Jeffrey Becker, Psychiatric Impact of Gender-Related Abuse Across the Life Course of Male-to-Female Transgender Persons, 47 J. SEX. RES. 12 (2010).

2015 DeKalb County YRBS data suggest that sexual orientation disparities in health observed elsewhere in the U.S. also persist in DeKalb County, GA.

1. Depression and Suicidality

As shown in Figure IV.b., larger proportions of LGB students in DeKalb County reported feeling isolated, depressed, and suicidal than non-LGB students. In fact, during the 12-months prior to the survey, 46.8% of LGB students reported feeling so sad or hopeless every day for over two weeks that they stopped doing some of their usual activities.246 That was nearly twice the rate of non-LGB students (24.2%). An affirmative answer to this question is part of the diagnostic definition of major depressive disorder.247

Figure IV.b. 12-month Depression and Suicidality among DeKalb County, Georgia, High School Students, by Sexual Orientation Source: Laura Kann et al., Sexual Identity, Sex of Sexual Contacts, and Health-Related Behaviors among Students in Grades 9–12, United States and Selected Sites, 2015

46.8%

35.2% 30.3% 24.2%

11.6% 12.9% 12.9% 3.3%

Injury from suicide Planned for suicide Seriously considered Felt sad or hopeless for attempt requiring suicide 2 weeks medical care LGB Non-LGB

LGB students in DeKalb County were over twice as likely to have seriously considered suicide in the year prior to the survey compared to non-LGB students. More than one-third of LGB students (35.2%) reported seriously considering suicide in the 12-months prior the survey,248 30.3% had made plan about how to attempt suicide,249 and 11.6% reported being injured from a suicide attempt in a way that had to be treated by a doctor or a nurse.250 By comparison, 12.9%

246 Laura Kann et al., Sexual Identity, Sex of Sexual Contacts, and Health-Related Behaviors Among Students in Grades 9 – 12 – United States and Selected Sites, 2015, supra note 207 at 108. 247 See Diagnostic Criteria for Major Depressive Disorder and Depressive Episodes, PSNPALOALTO.COM, http://www.psnpaloalto.com/wp/wp-content/uploads/2010/12/Depression-Diagnostic-Criteria-and-Severity- Rating.pdf (last visited May 4, 2016). 248 Laura Kann et al., Sexual Identity, Sex of Sexual Contacts, and Health-Related Behaviors Among Students in Grades 9 – 12 – United States and Selected Sites, 2015, supra note 207 at 108. 249 Id. at 110. 250 Id. at 112.

48 of non-LGB students in DeKalb County reported seriously considering attempting suicide in the year prior to the survey,251 12.9% had made a plan about how to do it,252 and 3.3% reported being injured from a suicide attempt that had to be treated by a doctor or a nurse.253

2. Substance Use

LGB students in DeKalb County were also more likely to report smoking, drinking, and substance abuse than non-LGB students.

Figure III.c. 30-Day Substance Abuse among DeKalb County, Georgia, High School Students, by Sexual Orientation Source: Laura Kann et al., Sexual Identity, Sex of Sexual Contacts, and Health-Related Behaviors among Students in Grades 9–12, United States and Selected Sites, 2015

33.0% 27.8% 23.1% 21.6% 19.2% 13.4% 9.9% 7.2% 8.5% 2.8% 3.5% 0.7%

Smoked Smoked Had at least 1 Had 5 or more Used marijuana Used cocaine cigarettes or cigarettes on 20 alcoholic drink alcoholic drinks (lifetime) cigars on at least or more days at one time 1 day LGB Non-LGB

LGB students were over twice as likely to report having smoked one or more cigarette or cigars in the month prior to the survey (23.1% v. 9.9%)254 and were also more likely to report that they had smoked cigarettes on 20 or more days in the month prior to the survey (2.8% v. 0.7%)255. Over 33.0% of LGB students had at least one drink in the month before the survey compared to 19.2% of non-LGB students.256 And 13.4% of LGB students reported having had 5 or more drinks in a row, or within a couple of hours, in the month prior to the survey compared to 7.2% of non-LGB students.257 LGB students were also more likely to report having used marijuana

251 Id. at 109. 252 Id. at 110. 253 Id. at 112. 254 Id. at 115. 255 Id. at 116. 256 Id. at 131. 257 Id. at 133.

(27.8% v. 21.6%)258 in the month prior to the survey, and were over twice as likely as non-LGB students to report ever having used cocaine (8.5% v 3.5%)259.

The 2015 DeKalb County YRBS findings are consistent with the 2015 YRBS data collected in 25 states and 18 other large urban school districts. In terms of mental health, like LGB youth in DeKalb County, LGB youth in the national YRBS sample were more likely to report that they felt so sad or hopeless that they stopped doing their usual activities for a period of time,260 that they had seriously considered suicide,261 that they had made a suicide plan,262 and that they had made a suicide attempt that resulted in an injury that had to be treated by a doctor or nurse.263 In terms of substance use, LGB youth in the national sample, similarly to LGB youth in DeKalb County, reported higher rates of smoking cigarettes,264 drinking alcohol,265 binge drinking,266 marijuana use,267 and cocaine use.268

D. Impact of Bullying and Family Rejection on Education and Economic Potential of LGBT Youth Given the negative impacts of school-based victimization and family rejection on the health of LGBT youth, it is not surprising that LGBT youth also are more likely to skip school, become involved in the juvenile justice system, and enter foster care or become homeless. LGBT youth are less likely, on average, to finish high school or to obtain a college degree, and thus, are more likely to be unemployed or underemployed.269 These individual consequences have economic ramifications for the state of Georgia.

1. School Outcomes

Research shows that bullying can lead to skipping school and low academic performance among LGBT youth. Several studies, relying on representative samples of youth, found that LGB students were more likely than non-LGB students to skip school as a result of feeling unsafe. For example, a 2011 meta-analysis of 18 studies that used YRBS or National Longitudinal Study of Adolescent Health data found that, on average, LGB students were almost three times as

258 Id. at 137. 259 Id. at 141. 260 Id. at 108. 261 Id. at 109. 262 Id. at 110. 263 Id. at 112. 264Id. at 115-16. 265 Id. at 131-32. 266 Id. at 133. 267 Id. at 137. 268 Id. at 141. 269 See, e.g., Kerith J. Conron, Matthew Mimiaga, Stewart J. Landers, A Population-Based Study of Sexual Orientation Differences in Adult Health, 100 AM. J. PUBLIC HEALTH 1953 (2010); Julia A. Dilley et al., Demonstrating the Importance and Feasibility of Including Sexual Orientation in Public Health Surveys: Disparities in the Pacific Northwest, 100 AM. J. PUBLIC HEALTH 460 (2009).

50 likely to report not going to school because of safety concerns as their non-LGBQ counterparts.270 Similarly, a 2014 analysis of pooled YRBS data from 13 sites found that LGB271 high school students reported significantly higher rates of skipping school because they felt unsafe.272

Studies based on convenience samples also indicate that many LGBT youth skip school due to bullying and harassment. A 2009 report by the National Education Association found that, nationwide, approximately half of LGBT students who said that they experienced frequent or severe verbal harassment because of their sexual orientation or gender identity missed school at least once a month, and around 70% who said they experienced frequent or severe physical harassment missed school more than once a month.273 The report also found that LGBT youth were almost twice as likely to consider dropping out of school as their non-LGBT peers.274 In response to the National Transgender Discrimination Survey, 83% of Georgia respondents who expressed a transgender identity or gender non-conformity while in K-12 reported experiencing harassment at school,275 and 25% of those who had experienced harassment reported that it was so severe they had to drop out of primary, secondary, or higher education.276 Other studies have found that bullying of LGBT youth is related to poorer academic performance and higher rates of absenteeism.277

270 Kann et al., supra note 201 at 12. 271 The study defined LGB students as those students who reported in response to the survey that they had had sexual contact with others of the same-sex or both same-sex and different sex-partners. Stephen T. Russell, Bethany G. Everett, Margaret Rosario & Michelle Birkett, Indicators of Victimization and Sexual Orientation among Adolescents: Analyses from Youth Risk Behavior Surveys, 104 AM. J. PUBLIC HEALTH, 255, 256 (2014). 272 Id. 273 ROBERT KIM, NATIONAL EDUC. ASS’N, REPORT ON THE STATUS OF GAY, LESBIAN, BISEXUAL AND TRANSGENDER PEOPLE IN EDUCATION: STEPPING OUT OF THE CLOSET, INTO THE LIGHT 30 (2009), http://www.nea.org/assets/docs/HE/glbtstatus09.pdf. 274 Id. 275 NAT'L CTR. FOR TRANSGENDER EQUAL. & NAT'L GAY AND LESBIAN TASK FORCE, supra note 218 at 1. 276 Id. 277 E.g., Joseph P. Robinson & Dorothy L. Espelage, Bullying Explains Only Part of LGBTQ-Heterosexual Risk Disparities: Implications for Policy and Practice, 41 EDUC. RESEARCHER 309 (2012); Alicia L. Fedewa & Soyeon Ahn, The Effects of Bullying and Peer Victimization on Sexual-Minority and Heterosexual Youths: A Quantitative Meta-Analysis of the Literature, 7 J. GLBT FAMILY STUDIES 398 (2011); Shelley L. Craig & Mark S. Smith, The Impact of Perceived Discrimination and Social Support on the School Performance of Multiethnic Sexual Minority Youth, YOUTH SOC'Y 1 (2011); ELIZABETH M. DIAZ & JOSEPH G. KOSCIW, GLSEN, SHARED DIFFERENCES: THE EXPERIENCES OF LESBIAN, GAY, BISEXUAL, AND TRANSGENDER STUDENTS OF COLOR IN OUR NATION’S SCHOOLS (2009), http://www.glsen.org/binary-data/GLSEN_ATTACHMENTS/file/000/001/1332-1.pdf; MASS. DEP’T OF EDUC., MASSACHUSETTS HIGH SCHOOL STUDENTS AND SEXUAL ORIENTATION: RESULTS OF THE 2009 YOUTH RISK BEHAVIOR SURVEY, http://www.mass.gov/cgly/YRBS09Factsheet.pdf (last visited May 3, 2016); Jennifer Pearson, Chandra Muller & Lindsey Wilkinson, Adolescent Same-Sex Attraction and Academic Outcomes: The Role of School Attachment and Engagement, 54 SOC. PROBLEMS 523 (2007); Stephen T. Russell, Hinda Seif & Nhan L. Truong, School Outcomes of Sexual Minority Youth in the United States: Evidence from a National Study, 24 J. ADOL. 111 (2001).

2. Overrepresentation in Foster Care, Juvenile Justice System, and Among the Homeless Population

Challenging environments at home and at school contribute to an overrepresentation of LGBT youth in the child welfare system, the youth homeless population, and the juvenile justice system.

In addition to the human toll, there are direct costs to the government and social service systems created by the overrepresentation of LGBT youth in these systems.278 LGBT youth are overrepresented in the foster care system; 19% of youth in foster care in Los Angeles County are LGBT, 2-3 times their proportion of the general youth and young adult population.279 Research suggests that LGBT youth are more likely than non-LGBT youth to age out of the system.280 While some of those who age out transition successfully into adulthood, many do not.

Of those who age out of foster care: more than 1 in 5 will become homeless after age 18; 1 in 4 will be involved in the justice system within two years of leaving the foster care system; only 58% will graduate high school by age 19 (compared to 87% of all 19 year olds); fewer than 3% will earn a college degree by age 25 (compared to 28% all 25 year olds); and at the age of 24, only half will be employed.281

A 2015 survey of homeless youth in Atlanta found that 28.2% of the respondents identified as LGBT.282 Similarly, in response to surveys conducted in 2012 and 2015, homeless youth service providers across the U.S. estimated that between 20% and 40% of their clients were LGBT.283 A 2011 study of youth in Massachusetts found that approximately 25% of lesbian and gay youth, and 15% of bisexual youth in public high school were homeless, compared to 3% of heterosexual

278 For an example of costs to the foster care system due to the overrepresentation of LGBT youth in foster care, and their increased likelihood of having multiple placements and being in congregate care, see BIANCA D.M. WILSON, KHUSH COOPER, ANGELIKI KASTANIS & SHEILA NEZHAD, WILLIAMS INST., SEXUAL & GENDER MINORITY YOUTH IN LOS ANGELES FOSTER CARE: ASSESSING DISPROPORTIONALITY AND DISPARITIES IN LOS ANGELES 41 (2014). 279 Id. at 6. 280 Id. (finding that LGBTQ youth in foster care have a higher total number of placements, are more likely to be in congregate care, and are more likely to have experienced homelessness). 281 JIM CASEY YOUTH OPPORTUNITIES INITIATIVE, ISSUE BRIEF: COST AVOIDANCE: THE BUSINESS CASE FOR INVESTING IN YOUTH AGING OUT OF FOSTER CARE 5 (2013), http://www.jimcaseyyouth.org/sites/default/files/Cost%20Avoidance%20Issue%20Brief_EMBARGOED%20until% 20May%206.pdf. 282 AYCNA 2016 Key Findings, Atlanta Youth Count, http://atlantayouthcount.weebly.com/2016-key-findings.html (last visited Nov. 29, 2016). 283 LAURA DURSO & GARY J. GATES, WILLIAMS INST., SERVING OUR YOUTH: FINDINGS FROM A NATIONAL SURVEY OF SERVICES PROVIDERS WORKING WITH LESBIAN, GAY, BISEXUAL AND TRANSGENDER YOUTH WHO ARE HOMELESS OR AT RISK OF BECOMING HOMELESS 3 (2012), http://williamsinstitute.law.ucla.edu/wp- content/uploads/Serving-Our-Youth-June-2015.pdf; SOON KYU CHOI, BIANCA D.M. WILSON, JAMA SHELTON & GARY J. GATES, WILLIAMS INST., SERVING OUR YOUTH 2015: THE NEEDS AND EXPERIENCES OF LESBIAN, GAY, BISEXUAL, TRANSGENDER, AND QUESTIONING YOUTH EXPERIENCING HOMELESSNESS (2015), http://williamsinstitute.law.ucla.edu/wp-content/uploads/Serving-Our-Youth-June-2015.pdf. See also WILSON ET AL., supra note 278.

52 youth.284

Data from the National Survey of Youth in Custody indicates that 12.2% of youth in custody identify as LGBT.285 Another study found that LGBT youth made up 15% of detained youth.286 Studies have shown that LGBTQ youth are more likely to be detained for offenses such as running away, truancy, curfew violations, and “ungovernability”—charges that can indicate problems with bullying in school and family rejection.287 Research also shows that in some instances, LGBT youth have been punished for defending themselves against their harassers,288 and evidence of selective enforcement against LGBT youth.289

Collectively, school-based harassment and family rejection, contribute to significant “welfare and Medicaid costs, the cost of incarceration, lost wages and other significant costs to individuals and to society.”290 For example, nationally, the Jim Casey Foundation estimates that homelessness, juvenile justice involvement, and poor educational and employment outcomes cost nearly $8 billion per cohort of youth aging out of foster care each year. The best available data suggest that LGBT youth make up one-fifth, if not more, of each annual cohort.

284 Heather L. Corliss, Carol S. Goodenow, Lauren Nichols & S. Bryn Austin, High Burden of Homelessness among Sexual-Minority Adolescents: Findings from a Representative Massachusetts High School Sample, 9 AM. J. PUB. HEALTH 1683 (2011). For further research on homelessness among LGBTQ youth, see MALLORY ET AL., supra note 231. 285 ALLEN J. BECK & DAVID CANTOR, BUREAU OF JUSTICE STATS., U.S. DEP’T OF JUSTICE, SEXUAL VICTIMIZATION IN JUVENILE FACILITIES REPORTED BY YOUTH, 2012 at 20 (2013), http://www.bjs.gov/content/pub/pdf/svjfry12.pdf. 286 Laura Garnette et al., Lesbian, Gay, Bisexual, and Transgender (LGBT) Youth and the Juvenile Justice System, in JUVENILE JUSTICE: ADVANCING RESEARCH, POLICY, AND PRACTICE 162 (Francine T. Sherman & Francine H. Jacobs eds., 2011). 287 KATAYOON MAJD, JODY MARKSAMER & CAROLYN REYES, HIDDEN INJUSTICE: LESBIAN, GAY, BISEXUAL, AND TRANSGENDER YOUTH IN JUVENILE COURTS 71 (2009), http://www.nclrights.org/wp- content/uploads/2014/06/hidden_injustice.pdf; SHANNAN WILBER, CAITLIN RYAN & JODY MARKSAMER, CHILD WELFARE LEAGUE OF AMERICA, BEST PRACTICE GUIDELINES FOR SERVING LGBT YOUTH IN OUT-OF-HOME CARE 4 (2006), http://familyproject.sfsu.edu/sites/sites7.sfsu.edu.familyproject/files/bestpracticeslgbtyouth.pdf. 288 MAJD ET AL., supra note 287 at 77. 289 Katherine E. W. Himmelstein & Hannah Bruckner, Criminal-Justice and School Sanctions against Non- Heterosexual Youth: A National Longitudinal Study, 127 PEDIATRICS 49 (2011). 290 Id.

SECTION V. LGBT HEALTH DISPARITIES

Experiences of discrimination and harassment, as well as living in a state with unsupportive laws and social climates, have been shown to contribute to health disparities for LGBT people. Substantial research has documented that LGBT people experience disparities on a range of health outcomes, and health-related risk factors, compared to their non-LGBT counterparts. Research shows that mood291 and anxiety disorders,292 attempted suicide,293 and self-harm294 are more common among sexual minorities (LGBs) than non-LGB people. Studies also indicate that rates of depression, anxiety disorders, and attempted suicide are also elevated among transgender people.295 In addition, LGB people are more likely to report tobacco use, drug use, and alcohol disorders than their non-LGB counterparts.296 As described more fully below, empirical research has linked such disparities to anti-LGBT policies and unsupportive social climates. Health survey data collected in Georgia indicate that LGB297 adults in the state experience the same types of disparities that have been documented in other states and on national surveys. A. LGB Health Disparities in Georgia

One source for assessing health disparities between LGB and non-LGB people in Georgia is the Georgia Behavioral Risk Factor Surveillance System (GA BRFSS).298 In 2015, Georgia included the CDC-recommended sexual orientation identity measure on its BRFSS.299 We present our

291 Michael King et al., A Systematic Review of Mental Disorder, Suicide, and Deliberate Self Harm in Lesbian, Gay and Bisexual People, 8 BMC Psychiatry 70 (2008); Kimberly F. Balsam, Theodore P. Beauchaine, Ruth M. Mickey & Esther D. Rothblum, Mental Health of Lesbian, Gay, 114 J. ABNORMAL PSYCH. 471 (2005). 292 King et al., supra note 291; Wendy B. Bostwick, Carol J. Boyd, Tonda L. Hughes & Sean Esteban McCabe, Dimensions of Sexual Orientation and the Prevalence of Mood and Anxiety Disorders in the United States, 100 AM. J. PUBLIC HEALTH 468 (2010). 293 King et al., supra note 291; Susan D. Cochran & Vickie M. Mays, Relation between Psychiatric Syndromes and Behaviorally Defined Sexual Orientation in a Sample of the US Population, 151 J. EPIDEMIOLOGY 516 (2000). 294 Balsam et al., supra note 291. For comprehensive reviews of research on LGBT health, see INSTITUTE OF MEDICINE, THE HEALTH OF LESBIAN, GAY, BISEXUAL, AND TRANSGENDER PEOPLE: BUILDING A FOUNDATION FOR BETTER UNDERSTANDING (2011); THE HEALTH OF SEXUAL MINORITIES: PUBLIC HEALTH PERSPECTIVES ON LESBIAN, GAY, BISEXUAL AND TRANSGENDER POPULATIONS (ILAN H. MEYER & MARY E. NORTHRIDGE, EDS. 2007). 295 See INSTITUTE OF MEDICINE, supra note 294 at 193-97. 296 Cochran & Mays, supra note 293; AMERICAN LUNG ASSOC., SMOKING OUT A DEADLY THREAT: TOBACCO USE IN THE LGBT COMMUNITY (2010), http://www.lung.org/assets/documents/research/lgbt-report.pdf; Kelly E. Green & Brian A. Feinstein, Substance Use in Lesbian, Gay, and Bisexual Populations: An Update on Empirical Research and Implications for Treatment, 26 PSYCHOL. ADDICT. BEHAV. 265 (2012). 297 We are deliberate when using LGBT and LGB in this section. If we are using just LGB, it is because the underlying survey only had a measure of sexual orientation, and did not ask about gender identity. 298 About BRFSS, U.S. Centers for Disease Control & Prevention, https://www.cdc.gov/brfss/about/index.htm (last visited Dec. 12, 2016); Behavioral Risk Factor Surveillance System, Ga. Dep’t of Public Health, https://dph.georgia.gov/georgia-behavioral-risk-factor-surveillance-system-brfss (last visited Nov. 22, 2016). Administered jointly by the CDC and Georgia Department of Public Health, the Georgia BRFSS is an anonymous survey of adults 18 years and older about a variety of health behaviors and preventive health practices. 299 Sexual orientation identity was assessed with the following item: “Do you consider yourself to be (1) straight, (2) lesbian or gay, (3) bisexual.” U.S. CENTERS FOR DISEASE CONTROL AND PREVENTION, 2015 QUESTIONNAIRE 69 (2014), available at http://www.cdc.gov/brfss/questionnaires/pdf-ques/2015-brfss-questionnaire-12-29-14.pdf.

54 analysis of data from Georgia’s 2015 BRFSS below, noting where our results are similar or dissimilar to patterns observed in other samples.

We assessed the health of LGB and non-LGB adults on three health outcomes that are widely viewed as stress-coping responses300 and which have been specifically linked to LGBT stigma and discrimination in prior research: depression, smoking, and binge drinking; as well as two other population health indicators (the number of days respondents experienced poor mental health during the month prior to the survey, and respondents’ experiences of feeling limited in their usual activities because of poor health). In our analyses we include individuals who identified as lesbian, gay, or bisexual (LGB) and those who identified as heterosexual/straight (non-LGB). We were unable to identify transgender individuals because Georgia’s BRFSS does not include a measure of gender identity or of transgender status.

The proportion of LGB (n=86) and non-LGB (n=3,564) people in Georgia that reported each health outcome are shown in Figure V.a. below. The proportions are weighted to reflect the population of Georgia as is recommended by the Centers for Disease Control and Prevention when analyzing these data.301

Mental Health. LGB adults in the 2015 BRFSS were significantly more likely to have ever been diagnosed with a depressive disorder (including depression, major depression, dysthymia, or minor depression) by a health care professional when compared to non-LGB adults in Georgia (49.7% v. 18.4%).302 They reported twice as many days of being in poor mental health in the month prior to the survey than non-LGB respondents (7.6 days v. 3.6 days).303 Also, more LGB than non-LGB respondents reported being limited in their activities because of mental, physical, or emotional problems (29.6% v. 21.6%).304 LGB respondents also reported that poor physical or mental health kept them from doing their usual activities for one day more in the prior month than non-LGB respondents (3.8 days v. 2.6 days).305

300 See, e.g., Liu & Alloy, supra note 234; Kassel et al., supra note 234; Brady & Sonne, supra note 234. 301 Behavioral Risk Factor Surveillance System Weighting BRFSS Data: BRFSS 2015, U.S. Centers for Disease Control and Prevention, http://www.cdc.gov/brfss/annual_data/2015/pdf/weighting_the-data_webpage_content.pdf (last visited Dec. 12, 2015). LGB survey respondents in Georgia were younger than the heterosexual/straight survey respondents. In order to make “fair” comparisons between sexual orientation groups, we use statistical controls to make the two groups comparable on age. 302 AOR (95% CI) = 4.70 (2.59, 8.52). 303 Adjusted b = 2.90, p < 0.01. 304 AOR (95% CI) = 2.18 (1.11, 4.30). 305 Adjusted b = 1.60, p<0.01.

Figure V.a. Health Characteristics of Adults in Georgia, by Sexual Orientation Source: Georgia BRFSS, 2015

49.7% 7.6 29.6% 21.6% 18.4% 3.6

Health care professional ever told Average number of days during Currently limited in activities has depressive disorder past 30 days mental health not because of physical, mental or good emotional problems

LGB Non-LGB

Smoking. LGB adults in Georgia were significantly more likely to smoke than non-LGB adults. More than one-third of LGB adults in Georgia (34.4%) were current smokers, compared to 17.6% of non-LGB adults.306

Drinking. LGB adults in Georgia were more likely than non-LGB adults to be binge drinkers (23.9% v. 14.5%),307 although the difference was not statistically significant. Binge drinking is defined as five or more drinks on at least one occasion in the past month for men and four or more drinks for women. LGB and non-LGB adults reported similar levels of heavy drinking (6.9% v. 5.0%),308 defined as having more than two drinks per day for men and more than one drink per day for women.

306 AOR (95% CI) = 3.18 (1.58, 6.41). 307 AOR (95% CI) = 1.36 (0.67, 2.79). 308 AOR (95% CI) = 1.25 (0.43, 3.64).

Figure V.b. Substance Abuse Among Adults in Georgia, by Sexual Orientation Source: Georgia BRFSS, 2015

34.4%

23.9% 17.6% 14.5%

6.9% 5.0%

Current smoker Binge drinker Heavy drinker

LGB Non-LGB

Our findings are generally consistent with analyses of BRFSS data collected in other states and with analyses of National Health Interview Survey data. For example, an analysis of BRFSS data collected in 10 states309 in 2010 found that LGB individuals were more likely to be current smokers than their non-LGB counterparts, and gay and bisexual men had higher rates of mental distress and life dissatisfaction than heterosexual men.310 Two studies analyzing BRFSS data from Massachusetts311 and Washington State312 similarly found disparities across a range of health outcomes and behaviors for LGB respondents, including poor physical and mental health, activity limitation, tension or worry, smoking, excessive drinking, and drug use. An analysis of data from the 2013 National Health Interview Survey found that LGB adults aged 18-64 in the U.S. were more likely to be current smokers (27.2 LG v. 29.5% bisexual v. 19.6% non-LGB). They were also more likely to binge drink than their non-LGB counterparts.313 In addition, bisexual respondents were significantly more likely to report experiencing severe psychological distress in the 30 days prior to the survey than respondents who identified as straight (11.0% v. 3.9%).314

309 In 2010, 12 states had added a question about sexual orientation to their BRFSS surveys (Alaska, Arizona, California, Colorado, Maine, Massachusetts, Montana, New Mexico, North Dakota, Oregon, Washington, and Wisconsin), but data two states (Colorado and Oregon) were unavailable to the authors at the time of analysis, so the study was based on data collected in the remaining 10 states. John R. Blosnich et al., Health Inequalities among Sexual Minority Adults: Evidence from Ten U.S. States, 2010, 46 AM. J. PREV. MED. 337, 338 (2014). 310 Id. at 340. 311 Kerith J. Conron, Matthew J. Mimiaga, Stewart J. Landers, A Population-Based Study of Sexual Orientation and Gender Differences in Adult Health, 100 AM. J. PUBLIC HEALTH 1953 (2010). 312 Julia A. Dilley et al., Demonstrating the Importance and Feasibility of Including Sexual Orientation in Public Health Surveys: Health Disparities in the Pacific Northwest, 100 AM. J. PUBLIC HEALTH 460 (2010). 313Brian W. Ward et al., Sexual Orientation and Health Among U.S. Adults: National Health Interview Survey, 2013, 77 NATIONAL HEALTH STATS. REPORT 1, 4 (2015), available at https://www.cdc.gov/nchs/data/nhsr/nhsr077.pdf. 314 Id.

B. Impact of Anti-LGBT Policies and Unsupportive Social Climates on LGBT Health

Empirical research has linked LGBT health disparities, including disparities in health-related risk factors, to anti-LGBT policies and unsupportive social climates. This connection has been recognized by the U.S. Department of Health and Human Services in Healthy People 2010 and Healthy People 2020315 and the Institute of Medicine of the National Academies.316 Research also suggests that stigmatizing campaigns around the passage of anti-LGBT policies, or negative media messaging that draws attention to unsupportive social climates, may exacerbate these disparities.

The minority stress model suggests that unsupportive social climates, created by anti-LGBT prejudice, stigma, and discrimination, expose LGBT individuals to excess stress, which, in turn, causes adverse health outcomes, resulting in health disparities for sexual minorities and transgender individuals compared with heterosexuals.317 Research that has focused on mental and physical health outcomes of LGBT people supports the minority stress model.318 This research has demonstrated that both interpersonal experiences of stigma and discrimination, such as being fired from a job for being LGBT, and structural stigma, such as living in a state without LGBT-supportive laws, contribute to minority stress.319

A number of studies have found evidence of links between minority stressors and negative mental health outcomes in LGB people, including a higher prevalence of psychiatric disorders,320

315 Healthy People 2020, DEP’T OF HEALTH AND HUMAN SERV., https://www.healthypeople.gov/sites/default/files/HP2020_brochure_with_LHI_508_FNL.pdf (last visited Jan. 3, 2016). Healthy People 2010 identified the gay and lesbian population among groups targeted to reduce health disparities in the United States In explaining the reason for the inclusion of the gay and lesbian population as one of the groups requiring special public health attention, the Department of Health and Human Services noted, “The issues surrounding personal, family, and social acceptance of sexual orientation can place a significant burden on mental health and personal safety.” DEPT. OF HEALTH AND HUMAN SVCS, OFFICE OF DISEASE PREVENTION AND HEALTH PROMOTION, HEALTHY PEOPLE 2010: UNDERSTANDING AND IMPROVING HEALTH 16 (2d ed. 2000). 316 INSTITUTE OF MEDICINE, supra note 294 at 14 (“LGBT people . . . face a profound and poorly understood set of . . . health risks due largely to social stigma”). 317 Ilan H. Meyer, Prejudice, Social Stress, and Mental Health in Lesbian, Gay, and Bisexual Populations: Conceptual Issues and Research Evidence, 129 PSYCHOL. BULL. 674 (2009); INSTITUTE OF MEDICINE, supra note 294 . 318 Id.; AM. PSYCH. ASSOC., STRESS IN AMERICA: THE IMPACT OF DISCRIMINATION 8, 22 (2016). 319 See Mark L. Hatzenbuehler, Hee-Jin Jun, Heather L. Corliss & S. Bryn Austin, Structural Stigma and Cigarette Smoking in a Prospective Cohort Study of Sexual Minority and Heterosexual Youth, 47 ANN. BEHAV. MED. 48 (2014). 320 E.g., Katie A. McLaughlin, Mark L. Hatzenbuehler & Katherine M. Keyes, Responses to Discrimination and Psychiatric Disorders among Black, Hispanic, Female, and Lesbian, Gay, and Bisexual Individuals, 100 AM. J. PUBLIC HEALTH 1477 (2010); Ellen D.B. Riggle, Sharon S. Rostosky & Sharon G. Horne, Marriage Amendments and Lesbian, Gay, and Bisexual Individuals in the 2006 Election, 6 SEXUALITY RESEARCH & SOCIAL POLICY 80 (2009).

58 including depression 321 and psychological distress,322 as well as loneliness, suicidal intention,323 deliberate self-harm,324 and low self-esteem.325 Studies have also linked minority stress in LGB people to an increased prevalence of high-risk health-related behaviors, such as tobacco use, drug use, and alcohol disorders.326

For example, a 2016 study by the American Psychological Association linked experiences of discrimination to increased stress and poorer health for LGBT people.327 The study found that LGBT adults reported higher average levels of perceived stress (6.0 vs. 5.0 on a 10-point scale) and were more likely to report extreme levels of stress (39% v. 23%) in the prior 30 days than adults who were non-LGBT.328 Job stability was a current source of stress for 57% of LGBT adults compared to 36% of non-LGBT adults.329 The study also found that many LGBT respondents had experienced discrimination.330 Nearly one-fourth (23%) of the LGBT adults

321 E.g., Robyn Zakalik & Meifen Wei, Adult Attachment, Perceived Discrimination Based on Sexual Orientation, Depression in Gay Males: Examining the Mediation and Moderation Effects, 53 J. OF COUNSELING PSYCHOL. 302 (2006). 322 E.g., Vickie M. Mays & Susan D. Cochran, Mental Health Correlates of Perceived Discrimination Among Lesbian, Gay, and Bisexual Adults in the United States, 91 AM. J. PUB. HEALTH 1869 (2001).; David M. Heubner, Carol J. Nemeroff & Mary C. Davis, Do Hostility and Neuroticism Confound Associations Between Perceived Discrimination and Depressive Symptom? 24 J. SOC. & CLINICAL PSYCHOL. 723 (2005); Ilan H. Meyer, Minority Stress and Mental Health in Gay Men, 36 J. OF HEALTH & SOC. BEHAV. 38 (1995). 323 David M. Huebner, Gregory M. Rebchook & Susan M. Kegeles, Experiences of Harassment, Discrimination, and Physical Violence Among Young Gay and Bisexual Men, 94 AM. J. OF PUB. HEALTH 1200 (2004). 324 James Warner et al., Rates and Predictors of Mental Illness in Gay Men, Lesbians and Bisexual Men and Women: Results from a Survey Based in England and Wales, 185 BRITISH J. OF PSYCHIATRY 479 (2004). 325 E.g., Jesus Ramirez-Valles et al., Confronting Stigma: Community Involvement and Psychological Well-Being Among HIV-positive Latino Gay Men. 27 HISP. J. OF BEHAV. SCI. 101 (2005). 326 E.g., Keren Lehavot & Jane M. Simoni, The Impact of Minority Stress on Mental Health and Substance Use among Sexual Minority Women, 79 J. CONSULT. CLIN. PSYCHOL. 159 (2011); Sean Esteban McCabe, Wendy B. Bostwick, Tonda L. Hughes, Brady T. West & Carol J. Boyd, The Relationship between Discrimination and Substance Use Disorders among Lesbian, Gay, and Bisexual Adults in the United States, 100 AM. J. PUBLIC HEALTH 1946 (2010); Mark L. Hatzenbuehler, Katie A. McLaughlin, Katherine M. Keyes & Deborah S. Hasin, The Impact of Institutional Discrimination on Psychiatric Disorders in Lesbian, Gay, and Bisexual Populations: A Prospective Study, 100 AM. J. PUBLIC HEALTH 452 (2010); Genevieve N. Weber, Using to Numb the Pain: Substance Use and Abuse among Lesbian, Gay, and Bisexual Individuals, 30 J. MENTAL HEALTH COUNSELING 31 (2008). 327 AM. PSYCH. ASSOC., supra note 318. 328 Id. at 22. LGBT adults were also more likely than non-LGBT adults to report experiencing increased stress over the past year (49%t v. 34%). More than one-third of adults who are LGBT believed they were not doing enough to manage their stress, compared to one-fifth of non-LGBT adults saying the same (35% v. 20%). 329 Id. 330 The percentage of respondents who were reported as having experienced discrimination said that they had either experienced “at least one of the five day-to-day stressors ‘less than once a year’ or more often; or ever experienced one of nine major forms of discrimination.” The five day-to-day stressors included: 1. You are treated with less courtesy or respect than other people; 2. You receive poorer service than other people at restaurants or stores; 3. People as is if they think you are not smart; 4. People act is if they are afraid of you; 5. You are threatened or harassed.” The nine major forms of discrimination included: 1. Have you ever been unfairly fired from a job? 2. Have you ever been unfairly denied a promotion? 3. For unfair reasons, have you ever been not hired for a job? 4. Have you ever been unfairly stopped, searched, questioned, physically threatened or abused by the police? 5. Have you ever been unfairly discouraged by a teacher or advisor from continuing your education? 6. Have you ever been unfairly prevented from moving into a neighborhood because the landlord or a relator refused to sell or rent you a house or apartment? 7. Have you ever moved into a neighborhood where neighbors made life difficult for you or your family? 8. Have you ever been treated unfairly when receiving health care? 9. Have you ever been treated

59 reported that they had ever been unfairly stopped, searched, questioned, physically threatened or abused by the police; nearly one-fourth (24%) reported being unfairly discouraged by a teacher or advisor to continue their education; and one-third (33%) reporting being unfairly not hired for a job.331

Studies have also linked a lack of legal protections and a poor state social climate to health disparities for LGBT people. For example, a 2009 study by Mark Hatzenbuehler et al. found that an unsupportive state-level legal landscape for LGB people was associated with “higher rates of psychiatric disorders across the diagnostic spectrum, including any mood, anxiety, and substance use disorder” in the LGB population than found in LGB populations in states with more supportive laws.332 A 2010 study by the same authors found that rates of anxiety, mood disorders, and alcohol use disorder increased significantly for LGB respondents after their state passed a constitutional ban on marriage for same-sex couples, and rates were unchanged in states that did not pass bans. The authors concluded that their “findings provide the strongest empirical evidence to date that living in states with discriminatory laws may serve as a risk factor for psychiatric morbidity in LGB populations.”333 Drawing on these findings and prior research, Hatzenbuehler concluded that “‘the recent laws that have been passed [anti-LGBT laws in North Carolina and Mississippi], as well the prejudicial attitudes that underlie them, are likely to have negative consequences for the mental and physical health of LGBT populations.’”334

Similarly, researchers who used 2011 North Carolina BRFSS data to study health disparities between LGB and non-LGB people in the state, noted that the poor legal and social environment for LGB people in the South may exacerbate the disparities:

Of additional concern is that many Southeastern states have failed to incorporate sexual minorities into existing laws (e.g., employment nondiscrimination) or have adopted new anti-LGB policies (e.g., prohibiting legal recognition of same-sex relationships), both of which may create and exacerbate unhealthful social environments for LGB populations, even as evidence of the health impact of local and state policies on LGB health grows. This context may yield health profiles different from New England and the Pacific

unfairly while using transportation (e.g., buses, taxis, trains, at an airport, etc.). Press Release, Am. Psych. Assoc., 2015 Stress in America: Methodology, http://www.apa.org/news/press/releases/stress/2015/methodology.aspx (last visited Dec. 5, 2016) (see Measurement with Experience with Discrimination). 331 AM. PSYCH. ASSOC., supra note 318 at 6-7. 332 Mark L. Hatzenbuehler, Katherine M. Keyes & Deborah S. Hasin, State-Level Policies and Psychiatric Morbidity in Lesbian, Gay, and Bisexual Populations, 99 AM. J. PUBLIC HEALTH 2275, 2277 (2009). The study looked at two types of laws: employment non-discrimination laws and hate crimes laws. Id. at 2275. If a state did not include sexual orientation as a protected characteristic in either type of law, it was considered an unsupportive state. Id. at 2277. 333 Hatzenbuehler, McLaughlin, Keyes & Hasin, supra note 326 at 456. See also, Ben Lennox Kail, Katie L. Acosta & Eric R. Wright, State-Level Marriage Equality and the Health of Same-Sex Couples, 105 AM. J. PUBLIC HEALTH 1101 (2015). 334 Mark L. Hatzenbuehler, The Health Consequences of Hate, COLUMBIA UNIV., Apr. 26, 2016, https://www.mailman.columbia.edu/public-health-now/news/health-consequences-hate.

Northwest, areas that currently have a greater number of policies in place that support LGB and transgender rights.335

Existing research suggests that transgender people experience patterns of minority stress and negative mental health outcomes similar to those experienced by LGB people. Analysis of data collected from transgender adults in Georgia through the 2011 National Transgender Discrimination Survey found that respondents who had lost their jobs due to discrimination were more likely to say that they had ever attempted suicide (53.5% v. 37.8%), drank or misused drugs (46.5% v. 25.3%), and smoked (48.8% v. 36.2%) than respondents who did not report such discrimination.336 Other studies have similarly found evidence of links between minority stress factors and psychological distress,337 attempted suicide,338 HIV risk behavior,339 and depression340 among transgender populations.

Figure V.c. Mental Health and Substance Use by Lifetime Employment Discrimination among Transgender Adults in Georgia Source: National Transgender Discrimination Survey, 2011

54% 47% 49% 38% 36% 25%

Ever attempted suicide Ever drank or misused drugs Ever smoked cigarettes Experienced discrimination Has not experienced discrimination

335 Derrick D. Matthews & Joseph G. L. Lee, A Profile of North Carolina Lesbian, Gay, and Bisexual Health Disparities, 106 AM. J. PUB. HEALTH 98 (2014). 336 Analysis by Jody L. Herman using data from the National Transgender Discrimination Survey. Data on file with authors. 337 Walter O. Bockting, Michael H. Miner, Rebecca E. Swinburne Romine, Autumn Hamilton & Eli Coleman, Stigma, Mental Health, and Resilience in an Online Sample of the US Transgender Population, 103 AM. J. PUBLIC HEALTH 943 (2013). 338 Kristen Clements-Nolle, Rani Marx & Mitchell Katz, Attempted Suicide among Transgender Persons: The Influence of Gender-Based Discrimination and Victimization, 51 J. HOMOSEXUALITY 53 (2006); JAIME M. GRANT, LISA A. MOTTET, JUSTIN TANIS, JACK HARRISON, JODY L. HERMAN & MARA KEISLING, NATIONAL CENTER FOR TRANSGENDER EQUALITY & THE NATIONAL GAY AND LESBIAN TASK FORCE, INJUSTICE AT EVERY TURN: A REPORT OF THE NATIONAL TRANSGENDER DISCRIMINATION SURVEY (2011), http://www.thetaskforce.org/static_html/downloads/reports/reports/ntds_full.pdf. 339 Eiko Sugano, Tooru Nemoto & Don Operario, The Impact of Exposure to Transphobia on HIV Risk Behavior in a Sample of Transgendered Women of Color in San Francisco, 10 AIDS & BEHAVIOR 217 (2006). 340 Tooru Nemoto, Birte Bödeker & Mariko Iwamoto, Social Support, Exposure to Violence and Transphobia, and Correlates of Depression among Male-to-Female Transgender Women with a History of Sex Work, 101 AM. J. PUBLIC HEALTH 1980 (2010).

Additionally, research indicates that laws or policies restricting bathroom access for transgender people can negatively impact their health, and can put them in danger of verbal and physical harassment. For example, a 2008 survey of transgender and gender non-conforming people in Washington, D.C. found that 54% of respondents had experienced a physical health problem from trying to avoid public bathrooms, including dehydration, urinary tract infections, kidney infections, and other kidney related problems.341 Further, 58% of the respondents reported that they “avoided going out in public due to a lack of safe restroom facilities,” 68% reported that they had been verbally harassed in a restroom, and 9% reported that they had been physically assaulted in a restroom.342

While research provides strong support for direct links between anti-LGBT policies or unsupportive environments and negative health outcomes, there may be other related factors that could contribute to the magnitude of observed disparities. For example, researchers have noted that healthier and better-resourced LGBT people may be able to move to more supportive climates than LGBT peers in worse health which would heighten observed disparities in less accepting places.343 Nonetheless, the research indicates that minority stress factors, including a lack of legal protections, discrimination, and a poor social climate, contribute to LGBT health disparities in Georgia. C. Illustration of Economic Impacts of Increased Incidence of Major Depressive Disorder & Smoking

Poor health “can affect people’s ability to be productive at work, reduce labor force participation when people cannot work, and burden public health care funds when individuals rely on emergency care rather than regular or preventative care.”344 For these reasons, poor health, in general, imposes costs on employers and governments.345 When LGBT people experience poorer health outcomes than their non-LGBT counterparts, there are economic costs beyond those which would exist in the absence of the disparity. Thus, to the extent that factors contributing to LGBT health disparities can be reduced or eliminated, the economy will benefit.346

To illustrate the cost savings that would result from eliminating health disparities facing LGBT people in Georgia, we follow a model used by Canadian research organization Community – University Institute for Social Research (CUISR). CUISR estimated the costs associated with LGBT health disparities in Canada through a four-step method:

341 Jody L. Herman, Gendered Restrooms and Minority Stress: The Public Regulation of Gender and Its Impact on Transgender People’s Lives, 19 J. PUBLIC MANAGEMENT & SOCIAL POL. 65, 75 (2013). 342 Id. at 71, 76. 343 Hatzenbuehler, McLaughlin, Keyes & Hasin, supra note 326 at 452. 344 M.V. LEE BADGETT, SHEILA NEZHAD, KEES WAALDIJK & YANA VAN DER MEULEN RODGERS, USAID & WILLIAMS INST., THE RELATIONSHIP BETWEEN LGBT INCLUSION AND ECONOMIC DEVELOPMENT: AN ANALYSIS OF EMERGING ECONOMIES (2014), http://williamsinstitute.law.ucla.edu/wp-content/uploads/lgbt-inclusion-and- development-november-2014.pdf. 345 Id. 346 Id.

 Determining prevalence for health outcomes for LGB and non-LGB populations.  Subtracting the prevalence for non-LGB population from that for LGB populations.  Multiplying the difference in prevalence by the total LGB population to determine the number of LGB people who would have not had those health outcomes if the rates were the same.  Multiplying the excess number of LGB people with each health outcome by the annual cost per affected person associated with the outcome as drawn from existing research.

In this report, we used CUISR’s method to estimate the costs associated with higher prevalence of two health outcomes – major depressive disorder and smoking – in LGB adults in Georgia. To the extent possible, we used data on these health outcomes and related costs specific to Georgia. Where we could not find reliable cost data for these health outcomes at the state-level, we used national data as a proxy. Given the limited data we have about health outcomes for transgender people nationally or in Georgia, we assume for purposes of our analysis that transgender people have the same rates of the health conditions described below as LGB people. The available research on health outcomes for transgender people indicates that this is a conservative assumption.347

Since there are a variety of factors leading to each disparity, we assume that improving the laws and social climate of Georgia for LGBT people would reduce observed disparities by a fraction. This is consistent with the 2009 Hatzenbuehler et al. study described above, in which health disparities for LGB people related to mood and alcohol use disorder were lower in states with more supportive laws, but were still present.348

Specifically, we assume a range of a 25% to 33.3% reduction in the disparity between LGB and non-LGB people on each outcome could be achieved if the state were to move towards extending legal protections and improving the social climate for LGBT people. This range is a conservative assumption based on our review of the best available research on LGB-health disparities in LGBT-supportive and unsupportive environments including the 2009 and 2010 Hatzenbuehler et al. studies.

Further, we note that there may be significant overlap in the costs that we estimate because some people may have major depressive disorder and smoke, and the costs associated with each condition may overlap. For this reason, our estimates are not intended to be cumulative, but rather to illustrate that significant cost savings could result if the disparity observed for either health outcome were reduced.

347 E.g., George R. Brown & Kenneth T. Jones, Mental Health and Medical Health Disparities in 5135 Transgender Veterans Receiving Healthcare in the Veterans Health Administration: A Case-Control Study, 3 LGBT HEALTH 122 (2016). 348 Hatzenbuehler, Keyes & Hasin, supra note 332 at 2277.

1. Excess Costs Associated with LGBT Major Depressive Disorder (MDD)

In order to best estimate the annual costs associated with MDD, we rely on data from the National Epidemiologic Survey on Alcohol and Related Conditions (NESARC), a general population study with a large, nationally representative sample of adults. An analysis of 2004-5 NESARC data found that, nationally, 18.0% of LGB respondents had major depressive disorder in the 12 months prior to the survey, compared to 8.1% of non-LGB respondents.349

Applying the percentage of excess prevalence of MDD among LGB people (18.0% - 8.1% = 9.9%) to Georgia’s LGBT population (an estimated 300,785 adults)350 indicates that there are approximately 29,800 more people who have major depressive disorder in Georgia than would be expected in the general population. As shown in Table IV.a. below, we further estimate that if 25% to 33.3% of the sexual orientation and gender identity disparity were reduced by improving the social climate for LGBT people, there would be between 7,444 and 9,916 fewer LGBT people living with MDD.

To estimate the annual cost per person suffering from MDD, we drew from a 2015 study, The Economic Burden of Adults with Major Depressive Disorder in the United States (2005 and 2010).351 The study found that the annual total cost of MDD, nationwide, in 2010 was $210.5 billion. The costs included loss of productivity in the workplace, absenteeism from work, costs for medical and pharmaceutical services, and suicide-related costs. In order to determine the cost per person with MDD, we divided the total cost by the number of adults with the condition in 2010.352 Next, we adjusted the cost per person with MDD in 2010 for inflation.353 In inflation- adjusted dollars, the 2016 cost per person with MDD was $14,885.49.354

349 Hatzenbuehler, Keyes & Hasin, supra note 332 at 2279. For an explanation of how major depressive disorder is determined on the NESARC see U.S. ALCOHOL EPIDEMIOLOGIC DATA REFERENCE MANUAL, ALCOHOL USE AND ALCOHOL USE DISORDERS IN THE UNITED STATES, A 3-YEAR FOLLOW-UP: MAIN FINDINGS FROM THE 2004-2005 WAVE 2 NATIONAL EPIDEMIOLOGIC SURVEY ON ALCOHOL AND RELATED CONDITIONS (NESARC) 19 (2010), https://pubs.niaaa.nih.gov/publications/NESARC_DRM2/NESARC2DRM.pdf. 350 See Section XXX, supra. 351 Paul E. Greenberg et al., The Economic Burden of Adults with Major Depressive Disorder in the United States (2005 and 2010), 76 J. CLIN. PSYCHIATRY 155 (2015). Greenberg et al. used data from the National Survey on Drug Use and Health to identify people who met the diagnostic criteria for major depressive episode within the past year. The cost estimates are largely based on medical claims filed by those who had been diagnosed with major depressive disorder (and compared to a control group). Similarly, the prevalence of MDD we use for our estimates was determined by identifying individuals who met the diagnostic criteria for MDD in data collected by the NESARC. All cost data used in our estimates are drawn directly from the calculations made by Greenberg et al. 352 The study found that, in 2010, 15,446,771 adults in the U.S. suffered from major depressive disorder. Id. Dividing the total cost ($210,548,000,000) by the number of suffers (15,446,771) indicates that the cost per sufferer was $13,630.55 in 2010. 353 To adjust for inflation, we used the U.S. Bureau of Labor Statistics’ inflation calculator available at CPI Inflation Calculator, U.S. Bureau of Labor Stats., http://data.bls.gov/cgi-bin/cpicalc.pl (last visited Apr. 28, 2016). 354 We assume that the costs associated with depression would be the same in 2016 as they were in 2010 (adjusted for inflation).

For the reasons described above, we estimate that Georgia may be able to reduce the disparity in MDD between LGBT and non-LGBT people by 25% to 33.3% by taking measures to improve legal protections for LGBT people. Applying this range would mean an eventual annual reduction in costs associated with MDD in Georgia of approximately $110.6 to $147.3 million.

Table V.a. Reduction in Costs Associated with MDD in Georgia if LGBT Disparity Were Reduced

Reduction in disparity between LGBT and Non-LGBT LGBT individuals Annual reduction in Georgians impacted costs (millions) 25% 7,444 $110.6 33.3% 9,916 $147.3

2. Excess Costs Associated with LGBT Smoking

Our analysis of Georgia’s 2015 BRFSS data found that 34.4% of LGB respondents were current smokers, compared to 17.6% of non-LGB respondents. Applying the percentage (16.8%) of excess prevalence of smoking among LGB people in Georgia to the state’s LGBT population (300,785 adults)355 indicates that there are approximately 50,500 more people who currently smoke in Georgia than would be expected in the general population.

A 2010 study estimates the annual costs per current smoker as $5,725.73.356 The total included costs from workplace productivity losses ($1,150.69), medical care costs ($2,006.23), and premature death ($2,568.81).357 We adjusted for inflation358 to estimate that the 2016 cost per current smoker in Georgia is $6,451.45.

As shown in Table V.b. below, if the disparity in current smoking for LGBT people in Georgia were reduced by a range of 25% to 33.3%, the savings would be $81.5 million to $108.6 million per year.

Table V.b. Reduction in Costs Associated with Smoking in Georgia if LGBT Disparity Were Reduced

Reduction in disparity between LGBT and Non-LGBT LGBT individuals Annual reduction in Georgians impacted costs (millions) 25% 12,633 $81.5 33.3% 16,827 $108.6

355 See Section I.A. supra. 356 JILL S. RUMBERGER, CHRISTOPHER S. HOLLENBEAK, & DAVID KLINE, POTENTIAL COSTS OF SMOKING CESSATION: AN OVERVIEW OF THE APPROACH TO STATE SPECIFIC ANALYSIS (2010), available at http://www.lung.org/assets/documents/tobacco/economic-benefits.pdf. 357 Id. at 366-67. 358 To adjust for inflation, we used the U.S. Bureau of Labor Statistics’ inflation calculator available at U.S. Bureau of Labor Stats., CPI Inflation Calculator, http://data.bls.gov/cgi-bin/cpicalc.pl (last visited Nov. 23, 2016).

If Georgia were to extend legal protections to LGBT people and if social acceptance of LGBT increased, the state would likely see improvements in the health of LGBT people. Furthermore, consideration of just two health disparities for LGBT people in the state – MDD and smoking – suggests that Georgia would see hundreds of millions of dollars in returns on both savings associated with reduced health care and social service costs and in greater productivity.

CONCLUSION

Georgia’s unsupportive legal landscape and social climate contribute to an environment in which LGBT people experience stigma and discrimination, which in turn, have economic consequences for businesses in Georgia and the state itself. Discrimination in the workplace undermines the advantages of diversity in the workplace, eroding worker productivity and making talented employees more difficult to recruit and retain. Discrimination in employment, housing, and other areas can also lead to increased reliance on public benefits. Considering just transgender Georgians experiences, we estimate that employment and housing discrimination is costing the state up to $1.5 million annually in increased Medicaid and shelter expenditures. In addition, bullying and family rejection of LGBT youth in Georgia likely have lifelong impacts on education and earning potential of youth, resulting in lower participation in jobs that contribute to overall economic productivity. Finally, unsupportive environments have been linked to health disparities for LGBT people, which likely impact Georgia’s economy by hundreds of millions of dollars each year in lost productivity and health care costs. Considering only disparities on just two health outcomes, we estimate that Gerogia could benefit by $110.6 million to $147.3 million if the disparity between LGBT people and non-LGBT people in rates of major depressive disorder were reduced by a fraction, and could benefit by $81.5 million to $108.6 million if the disparity in rates of smoking were reduced by a fraction. In sum, if Georgia were to take steps toward a more supportive legal landscape and social climate, the state’s economy would benefit.

CEO Brief

GEORGIA

LGBT+ Business Climate Score

Out Leadership’s Business Climate Index for the 50 United States is an assessment of states’ performance on LGBT+ inclusion. It measures the impact government policies and prevalent attitudes have on the LGBT+ people residing in each state, quantifying the 45.3 economic imperatives for inclusion and the costs of discrimination. It equips business and state leaders with a clear sense of the most impactful steps states can take to make themselves more hospitable to forward-thinking, innovative, inclusive businesses. out of a possible 100 points

Legal & Nondiscrimination Protection. Georgia lacks any statewide nondiscrimination law whatsoever, meaning that many Georgians are vulnerable to discrimination, including on the basis of sexual orientation and gender identity, as well as on the basis of gender, religion and ethnicity. Some municipalities have passed these protections, including on the basis of sexual orientation and gender identity, at the local level. It’s possible to change gender markers on a birth certificate or a driver’s license, but gender confirmation 8 / 20 surgery is a prerequisite in a longer process involving court orders and physician notes.

Youth & Family Support. The state does not ban conversion therapy, though there was a bill introduced in the House in 2019 that would prohibit the practice with minors. There are no overt restrictions on LGBT+ or second-parent adoptions, but there are no protections either. LGBT+ students do not have comprehensive nondiscrimination protections and are not protected against bullying. A second parent is recognized in the 10.33 / 20 case of adoption or assisted reproduction if the individuals in the couple are married.

Political & Religious Attitudes. The state’s governor and both senators have demonstrated negative track records on LGBT+ rights in statements and voting records. Though the state currently lacks a “religious freedom” law, there was one pending in the 9 / 20 state Senate. Governor Brian Kemp ran on a campaign promise to pass such a law.

Health Access & Safety. Georgia’s state Medicaid system specifically excludes transgender healthcare, and private insurers are allowed to do the same. There is no hate crime law covering sexual orientation or gender identity. Knowingly exposing / 20 someone to HIV is a felony. 5

Work Environment & Employment. 12% of transgender employees in Georgia reported being harassed in the past year due to their gender identity, and 34% report mistreatment such as being forced to use a restroom that does not match their gender. 26% of LGBT+ individuals in Georgia reported food insecurity, compared to 17% of non- 13 / 20 LGBT+ individuals. 26% of LGBT+ Georgians report making less than $24,000 per year.

Note on Methodology. To read a detailed explanation of our rational and methodology, including our data standards and practices, please visit www.outleadership.com/stateindex How to Use This Brief

As a business leader, you have the opportunity to create change for LGBT+ people wherever you work – both within your company, and in the places you do business. This brief provides valuable information to inform your conversations with:

Internal Staff: Ensure that staff at your company are aware of the laws and attitudes impacting LGBT+ people wherever they work, and that they’ve adopted the appropriate internal policies for their location.

Community Leaders: In meetings with community leaders, particularly those focused on economic development, we encourage business leaders to bring up a state’s performance on the State Business Climate Index, and the details shared in the CEO Briefs, in an appropriate way. We hope that these tools will help executives explain how LGBT+ inclusive policies are part of their companies’ best practices, and acknowledged as global standards. Please note that you are the best person to judge whether you have the ability to have such a conversation with a local leader in an appropriate way. Your Community Affairs officer, Diversity & Inclusion head, or equivalent may be appropriate to include in these conversations.

In-country Business Partners: In conversations with business partners, when appropriate, ask them what they’re doing to address LGBT+ inclusion, and help explain why inclusion positively impacts your ability to conduct business.

Talking Points “4 .5% of Georgia residents identify as LGBT+. Conservatively, that’s LGBT+ personal income of $21.6 billion – it’s a market my business can’t afford to ignore.”

“Nondiscrimination policies allow LGBT+ people to participate more fully in the economy.”

“ When LGBT+ employees don’t feel welcome at work, they’re less likely to stay, and employee turnover is a drag on the state economy and business competitiveness. It costs companies an average of $9,440 to replace an employee in Georgia, and it can cost up to $218,590 to replace senior executives. Georgia and the businesses operating there have strong financial incentives to create inclusive workplaces in the interest of keeping these costs down.”

“ Millennial and Gen Z consumers prefer to do business with companies with LGBT+ friendly advertising and policies – 54% say they’re more likely to choose an LGBT+ inclusive brand over a competitor – which is why it’s important that Georgia create a business environment where being inclusive is supported.” State Index Heat Map

Out Leadership's Business Climate Index combines verifiable data on LGBT+ people’s lived experiences with economic data to help business leaders and policymakers understand the costs created by policies that create minority stress. The legal and cultural situation for LGBT+ people varies widely across the country. This map, based on each state's total score, illustrates the states where LGBT+ people are empowered to participate more fully and openly in the economy, and the states that are lagging behind.

31.2 90

31.2 90 Regional Context – The Southeast

Out Leadership and FCB partnered on original market research into the attitudes of American workers on LGBT+ inclusion, which fielded in March and April 2019. The full results will be launched Southeast Region in September 2019; we are able to share preliminary regional comparisons in this brief. Alabama Arkansas LGBT+ workers in the Southeast are the most likely to be out at work (54.4%), but they are also 25% Florida more likely to feel that covering behaviors are important for workplace success. More broadly, non- Georgia LGBT+ workers in this region preferred for businesses to demonstrate their support for the LGBT+ Kentucky community using internal initiatives (like hiring more LGBT employees and creating more inclusive Louisiana HR policies). However, this group was 57% less likely to approve of more public demonstrations of Mississippi support (like withdrawing sponsorship from sporting events in less inclusive areas). LGBT+ workers North Carolina in this region are 39% more likely to support inclusive businesses and 17% more likely to consider South Carolina LGBT+ friendliness in making spending decisions compared to the non-LGBT workers nationwide. Tennessee However, there is a perception that state leadership speaks about the LGBT+ community in a more Virginia negative way (39% more likely than nationwide), which could partially explain why LGBT+ workers in West Virginia the Southeast are 19% more likely to say that they would be open to moving to a state with better LGBT+ support.

Unless otherwise noted, all comparisons for more or less likely are compared to the National results. Regional results are based off of 1,500 respondents (LGBT+ and Non-LGBT+ responses have been weighted to be age-representative for each audience in each region). National results are based off of 600 respondents representative of each audience (LGBT+ vs Non-LGBT+). Current Legal Status of LGBT+ People

Legal Status of the Lesbian, Gay, and Bisexual Community

Georgia lacks any statewide nondiscrimination law, meaning that Georgians are vulnerable to discrimination on the basis of sex, ethnicity, and religion, as well as on the basis of sexual orientation and gender identity. However, some have been passed at the local level.

Georgia does not have any comprehensive laws protecting state employees from discrimination on the basis of sexual orientation or gender identity.

It is a felony in Georgia to knowingly expose someone to HIV without disclosure through sexual contact, needle sharing, sex work, or blood and tissue donation. If convicted, the act is punishable by up to a decade in prison.

Georgia does not have any laws which protect youth in foster care from discrimination on the basis of sexual orientation or gender identity.

Georgia does not currently permit state agencies to decline prospective adoptive parents based on religious beliefs. In 2018, the Senate passed SB 375, which would have permitted adoption agencies to decline a referral for adoption or foster care services based on “the child-placing agency’s sincerely held religious beliefs,” but it died in the House.

Georgia has no laws banning or restricting the practice of conversion therapy.

Legal Status of the Transgender Community

Although Georgia currently does not provide statutory protections based on gender identity, the U.S. Court of Appeals for the Eleventh Circuit (which covers Georgia) ruled in 2011 that if a government agent fires a trans employee because of their gender non-conformity, that action violates the Constitution’s Equal Protection Clause prohibition on sex-based discrimination.

Georgia permits changing the gender markers on a birth certificate for individuals born within the state. In order to obtain an amended birth certificate, an individual must undergo gender confirmation surgery, petition the court to apply for a name change and gender change, and submit a certified physician’s letter attesting to the fact that the individual has undergone the surgery. No therapist letter is required. Once the individual has obtained a “court order indicating the sex of an individual born in this state has been changed by surgical procedure and that such individual’s name has been changed,” the individual may apply to the Georgia Office of Vital Records to receive an amended birth certificate.

To update the gender marker on a Georgia driver’s license or ID, an individual must submit either a court order or physician’s letter certifying that the individual has had gender confirmation surgery. The court order or physician’s letter must state the person’s name, date of birth, date of operation and other identifying information. Neither a name change nor a therapist letter is required.

Georgia’s State Medicaid policy explicitly excludes transgender health coverage and care, prohibiting coverage for, among other things, gender confirmation surgeries, hysterectomies, sterilizations, and cosmetic surgery or mammoplasties for aesthetic purpose. The policy does not appear to explicitly include or exclude hormone treatment, but drugs or procedures which are not recognized by the federal government as acceptable, standard treatment are generally excluded from coverage.

Private health insurers are permitted to exclude transgender care, as Georgia does not have any laws which prohibit such exclusion or require transgender care to be included.

Government Statements and Actions

Georgia’s current criminal code does not provide any hate crime protections, although the state legislature considered bills that would extend such protections.

Kemp appointed a noted anti-LGBT+ activist to his transition team, alongside a gay Republican who has long opposed anti-LGBT+ religious freedom policies. Government Statements and Actions (cont.)

In 2019, the state legislature rejected SB 221, which continued an ongoing policy debate in the state: whether it should have its own version of the 1993 Religious Freedom Restoration Act. Some religious Georgians say it protects their freedom of speech, while LGBT+ activists say it gives people to right to discriminate against them.

Former governor Nathan Deal vetoed a state-based RFRA bill three years ago after large corporations threatened to boycott the state.

Impact of LGBT Discrimination on Business & Talent

For more context around these scores, and to learn more about the criteria we used to assess how state laws, actions and attitudes toward LGBT+ people create business and talent risks, please visit www.outleadership.com/staterisk

1 • NO RISK 2 • LOW RISK 3 • MODERATE RISK 4 • NOTABLE RISK 5 • HIGH RISK

Companies face high brand risk by operating in Georgia, where there are no statewide LGBT+ inclusive nondiscrimination protections and the HIGH BRAND RISK state’s governor and senators have negative voting records on LGBT+ issues. Governor Brian Kemp ran on a campaign promise to pass a “religious freedom” law.

Georgia’s openly homophobic lawmakers and lack of protections make NOTABLE CLIENT RISK choosing to do business there a notable risk. Businesses operating there could alienate clients who are engaged on LGBT+ issues.

LGBT+ talent are likely to consider Georgia’s legal and social environment NOTABLE unfriendly. There is no statewide LGBT+ inclusive nondiscrimination law, TALENT RISK and the state specifically excludes trans people from healthcare coverage, making working in Georgia comparatively unattractive to LGBT+ talent.

There is high risk involved in marketing to the LGBT+ community in Georgia, MARKETING RISK HIGH particularly given the state government’s highly publicized plan to pass a RFRA in the near future.

The state legislature has not passed any discriminatory laws in recent years, and overall such bill volume appears to be declining year on year. NOTABLE FUTURE RISK However, there continue to be high-profile calls for such legislation, and related national news coverage. There remains a notable risk of a future headline-making, discriminatory event. Socio-cultural Environment of LGBT+ People

Status of LGBT+ Organizing and Community

Atlanta is having its 49th pride celebration in October 2019; it’s the largest pride parade in the southeast. Savannah’s is going into its 19th year.

The Georgia Voice describes Atlanta as “arguably the hub of black LGBTQ life in America.” According to the Williams Institute, 4.5% of the state’s residents identify as LGBT+. However, that large LGBT+ population remains very racially segregated.

First City Network in Savannah is the state’s oldest LGBT+ organization.

The small bible-belt town of Blue Ridge has famously become revitalized by an influx of LGBT+ people and businesses.

Cultural Views of the LGBT+ Community

When Vice President Mike Pence went to Savannah for St. Patrick’s Day in 2018, the city “welcomed” him by festooning the parade route with rainbow flags.

Purpose

Multinational companies face operational and reputation risks when they do business in places where the legal and/or social atmosphere makes it difficult for LGBT+ people to live openly. Discrimination against LGBT+ people creates serious challenges for talent mobility, retention, and development.

Out Leadership’s LGBT+ CEO Business Briefs seek to help C-Suite leaders understand and respond to these risks. Secondarily, these Briefs seek to inform and empower corporate executives to engage in conversations with economic development officials and other local stakeholders about why discrimination against LGBT+ people negatively impacts their ability to do business.

Partners

Our partnerships make our work possible. The 50 U.S. State CEO Business Briefs are financially supported by a grant from the Gill Foundation. Ropes & Gray is our pro bono legal partner for the CEO Business Briefs globally. FCB partnered with us to conduct original market research into American attitudes toward LGBT+ workplace inclusion, informing the Regional Context section. The State Business Climate Index is based on data graciously shared by the Movement Advancement Project and the Williams Institute. America Competes supported the development of the scoring for the Risk Assessments detailed in this brief, particularly for the Future Risk score. Special Thanks

Thank you to Jeff Graham and Cathy Woolard of Georgia Equality (https://georgiaequality.org) for sharing their expertise. Thanks also to Out Leadership’s Global Advisory Board members and our member companies’ senior leaders, who have committed to using this brief.

Project Team

Out Leadership We help firms engage with the $5.2 trillion Todd Sears, Founder & Principal LGBT+ market opportunity. Are you ready Dave Hughes, Head of Communications ® to improve your Return on Equality ? Rachel Golden, Senior Researcher Wes Werbeck, COO Marco Martinot, CFO Christine Townsley, Associate OutLeadership.com Kira Goldenberg, Writer & Researcher +1.917.336.06o4 [email protected] FCB Vita Harris, Chief Strategy Officer 520 West 43rd Street New York, NY 10036 USA Danni Bayn, Strategic Analytics Director Andrea Allison, Supervisor, Strategic Analytics

Half a Matched Set Catie Ryan, Print Design

Telegraph Web Design

Disclaimer Certain information contained herein has been obtained from a number of published and non-published sources prepared by other parties and companies, which may not have been verified and in certain cases have not been updated through the date hereof. While such information from other parties and companies is believed to be reliable for the purpose used herein, none of Out Leadership nor any of its affiliates assume any responsibility for the accuracy or completeness of such information. Out Leadership has made efforts to ensure that the information contained within these briefs is accurate and up to date as of the publication date of June 10, 2019, but information contained herein has not been independently verified by Out Leadership or any of its directors, members, employees, advisers or officers and is not guaranteed to be correct, complete or current. All information is subject to change without notice. These briefs are provided for educational and informational purposes only, and should not be construed as legal advice. To the maximum extent permitted by law, Out Leadership shall not be liable (including in negligence) for any direct, indirect or consequential losses, damages, costs or expenses arising out of or in connection with the use of or reliance on this document. If you would like to suggest an edit to this brief, please contact [email protected]. LIBERTY & JUSTICE IN GEORGIA: MAKING THE BUSINESS CASE FOR COMPREHENSIVE CIVIL RIGHTS

Presented by: Jeff Graham

Equality Foundation of Georgia (404) 523- 3070 www.GeorgiaEquality.org According to Movement Advancement Project, Georgia is the only six states with a negative equality score OUT LEADERSHIP CEO BRIEF LGBT BUSINESS CLIMATE SCORE 2019

¢ Georgia has a score of 45.3 out of 100

¢ Ranks 38 out of 50 states & DC

¢ Legal Protections 8 of 20 ¢ Youth & Family Support 10.33 of 20 ¢ Political & Religious Attitudes 9 of 20 ¢ Health Access & Safety 5 of 20 ¢ Work Environment & Employment 13 of 20

GEORGIA DROPS OUT OF TOP 5 ON CNBC'S ANNUAL 'TOP STATES FOR BUSINESS' LIST JULY 10, 2018, ATLANTA BUSINESS CHRONICLE CNBC 2018 CRITERIA

¢ Workforce (425 points) ¢ Infrastructure (400 points) ¢ Cost of Doing Business (350 points) ¢ Economy (300 points) ¢ Quality of Life (300 points) ¢ Technology & Innovation (225 points) ¢ Education (200 points) ¢ Business Friendliness (150 points) ¢ Access to Capital (100 points) ¢ Cost of Living (50 points)

Georgia received an A-plus grade in the "workforce" and "economy" categories but a C-minus in "education" and a D grade for "quality of life." QUALITY OF LIFE

One way to attract qualified workers is to offer them a great place to live. We score the states on livability including several factors, such as the crime rate, the quality of health care, the level of health-insurance coverage and the overall health of the population. We measure inclusiveness by looking at statewide anti- discrimination protections, as well as the ability of local jurisdictions to set their own standards. We evaluate local attractions, parks and recreation, as well as environmental quality. INDIVIDUALIZED SEARCHES

Trulia – real estate search engine

Yelp - introducing the “Open to All” attribute to allow businesses to distinguish themselves as a safe and welcoming place to everyone, regardless of race, ethnicity, national origin, sex, sexual orientation, gender identity and expression, religion or disability. GEORGIA’S LGBT COMMUNITY

360,600 LGBT adults live in Georgia

29% are raising children

60,000 youth identify as LGBTQ

73,800 African American LGB, 2nd highest population in country, ~33% with children

55,650 Transgender individuals, 4th highest percentage and 5th highest overall population

Only 5% of LGBT people covered by local protection GEORGIA’S LGBT COMMUNITY SURVEY

Most important Issues Facing LGBT Community in Georgia

75% Expanded civil rights protections

74% Expanded rights/ recognition of LGBT families

73% Ensuring schools are safe for LGBT youth PUBLIC ACCOMMODATIONS

In the last 12 months, please indicate how often, if at all, you have experienced homophobia, transphobia and or harassment…

6% Once a month 42% Yearly 52% Never

Transgender individuals are more likely to have been discriminated against in a variety of settings, often by a large margin. WORKPLACE DISCRIMINATION

In the last 12 months, please indicate how often, if at all, you have experienced homophobia, transphobia and or harassment…

11% Once a month or more 34% Yearly 55% Never

Transgender individuals are more likely to have been discriminated against in a variety of settings, often by a large margin. COMPREHENSIVE CIVIL RIGHTS – A SOLUTION TO GEORGIA’S CHALLENGES

Georgia one of only three states without employment protections

Georgia one of only five states without public accommodations

Georgia state law should protect against discrimination based upon race, religion, color, national origin, physical or mental disability, medical condition, marital status, sex, sexual orientation, gender identity and expression, age and military or veteran status ECONOMIC COST OF DISCRIMINATION

The Economics of Discrimination are Bad Business for Georgia: $1 to $2 Billion in loss Film Conventions and Tourism Corporate Vulnerability to Boycotts Sports – NCAA, NFL policies Workforce Attraction and Retention

¢ Impact on individual employers estimated at $9,400 per employee that leaves state or changes jobs due to unsupportive environment. WHAT THE POLLS SAY

¢ 74% of Georgians support state law protecting LGBT people from discrimination in employment, housing and public accommodations. 52% - 56% Strongly Support 78% of voters under 35

¢ HOWEVER, 74% believe it’s already illegal

¢ 63% would be more inclined to vote for someone who supports statewide nondiscrimination legislation

2019 LEGISLATIVE BATTLES –FEDERAL ISSUES

Weakening support for LGBT issues in administration: Dept of Justice reversal on Title IX guidance RFRA Waiver from HHS is an attack on adoption rights Attacks on Transgender service members Restricting definition of sex in ACA Rule 1557

Extending Protections in Congress: Equality Act/ Fairness for All Act Do No Harm Act Every Child Deserves a Family Act 2020 LEGISLATIVE BATTLES –STATE ISSUES Six year record of stopping all anti-LGBTQ legislation

Comprehensive Civil Rights – HB 19

Hate Crimes #HateFreeGA coalition – HB 426

Conversion Therapy Ban – HB 580

RFRA – Action in Senate possible

Medicaid Expansion/ Medicaid Waiver

HIV Legislation – HB 719, HIV Criminalization reform HOW MANY ADULTS IDENTIFY AS TRANSGENDER IN THE UNITED STATES?

Andrew R. Flores, Jody L. Herman, Gary J. Gates, and Taylor N. T. Brown

•the Williams INSTITUTE JUNE 2016 INTRODUCTION AND SUMMARY

Population-based surveys, meaning those that are designed to allow researchers to generalize findings to the population, rarely ask questions to identify transgender people and, therefore, cannot be used to provide estimates of the size and characteristics of the transgender population. The federal government administers several large, national population-based surveys like the American Community Survey and the National Health Interview Survey that track the demographics, health and well-being of U.S. residents. Unfortunately, these surveys do not currently measure gender identity.1 However, there are several state-level population-based surveys that identify transgender respondents and can be used to estimate the size and characteristics of the transgender population.

In 2011, Gary J. Gates utilized two state-level population-based surveys that collected data from 2003 in California and from 2007 and 2009 in Massachusetts to estimate that 0.3% of the U.S. adult population, roughly 700,000 adults, identified as transgender.2 Since then, more state-level data sources have emerged that allow us to utilize an estimation procedure that would not have been possible with the limited data available in 2011. Compared to the data used in Gates' study, these new data sources provide more recent data (2014), larger sample sizes, and more detailed information about respondents. This allows for the development of more recent, detailed, and statistically robust estimates of the percentage and number of adults in the United States who identify as transgender.

This report utilizes data from the CDC's Behavioral Risk Factor Surveillance System (BRFSS) to estimate the percentage and number of adults who identify as transgender nationally and in all 50 states.3 We find that 0.6% of U.S. adults identify as transgender. This figure is double the estimate that utilized data from roughly a decade ago and implies that an estimated 1.4 million adults in the U.S. identifyas transgender.4 State-level estimates of adults who identify as transgender range from 0.3% in North Dakota to 0.8% in Hawaii.5 In addition, due to current state-level �olicy dPbrltPC:: th;:1t c:rorifir::lll y targe! e�� =��c: :�::�::;;�:-:�� :;:�� ;-;ts, 't£Vc p, vv;�c: c::,li1I 1ai.e::, of (fie numOer of aauns who identify as transgender by age. The youngest age group, 18 to 24 year olds, is more likely than older age groups to identify as transgender.

Figure 1. Percent of Adults Who Identify as Transgender in the United States

Percent of adults identifying as transgender in the U.S. 0.00% c:::i•••a.78%

, .

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HOW MANY ADULTSIDENTIFY AS TRANSGENDER IN THE UNITED STATES? 2 National and State-level Estimates of Transgender-ldentifiedAdults An estimated 0.6% of adults, about 1.4 million, identify as transgender in the United States. States vary in the percentage of residents who identify as transgender (See Table 1). Hawaii has the highest percentage of adults who identify as transgender, approximately 0.8% of adults, and North Dakota has the lowest percentage, at 0.3%. The District of Columbia is notable for its relatively high percentage of transgender-identified adults (2.8%).6 Twenty states and the District of Columbia are estimated to have a higher percentage of transgender-identified adults than the national average.

Table 1. Estimated Population of Adults Who Identify as Transgender by State of Residence

STATE . . . . • PERCENT RANK United States of America 1,397,150 0.58%

Alabama 22,500 0.61% 15 Alaska 2,700 0.49% 33 Arizona 30,550 0.62% 12 Arkansas 13,400 0.60% 18 California 218,400 0.76% 2 Colorado 20,850 0.53% 27 Connecticut 12,400 0.44% 37

1""\..-.1-- .,- ... - s..,''-IUV'VOI C' 4,::>::>V U.t>4'1o 9 District of Columbia7 14,550 2.77% Florida 100,300 0.66% 6 Georgia 55,650 0.75% 4 Hawaii 8,450 0.78% Idaho 4,750 0.41% 43 Illinois 49,750 0.51% 30 Indiana 27,600 0.56% 23 Iowa 7, 400 0.31% 49 Kansas 9,300 0.43% 41 Kentucky 17,700 0.53% 26 Louisiana 20,900 0.60% 17 Maine 5,350 0.50% 31 Maryland 22,300 0.49% 32 Massachusetts 29,900 0.57% 22 Michigan 32,900 0.43% 40 Minnesota 24,250 0.59% 20 Mississippi 13,650 0.61% 14 Missouri 25,050 0.54% 25 Montana 2,700 0.34% 47 Nebraska 5,400 0.39% 44 Nevada 12,700 0.61% 13

HOW MANY ADULTSIDENTIFY AS TRANSGENDER IN THE UNITED STATES? 3 STATE ,POPULATION PERCENT RANK , New Hampshire 4,500 0.43% 39 New Jersey 30,100 0.44% 36 New Mexico 11,750 0.75% 3 New York 78,600 0.51% 29 '. 0.60% 16 North Carolina 44,750 . ' North Dakota 1,650 0.30% - 50 Ohio 39,950 0.45% 34

Oklahoma ; 18,350 0.64% 8 Oregon 19,750 0.65% 7 Pennsylvania 43,800 0.44% 35 Rhode Island 4,250 0.51% 28 South Carolina 21,000 0.58% 21 South Dakota 2,150 0.34% 46 Tennessee 31,200 0.63% 10 Texas 125,350 0.66% 5 Utah 7,200 0.36% 45 Vermont 3,000 0.59% 19 Virginia 34,500 0.55% 24 Washington 32,850 0.62% 11 West Virginia 6,100 0.42% 42 Wisconsin 19,150 0.43% 38 Wyoming 1,400 0.32% 48

HOW MANY ADULTS IDENTIFY AS TRANSGENDER IN THE UNITED STATES? 4 Estimates of Transgender-ldentified Adults by Age Prior research suggests that individuals who identify as transgender are younger, on average, than non-transgender individuals.8 As expected, we find that younger adults are more likely than older adults to identify as transgender. An estimated 0.7% of adults between the ages of 18 and 24 identify as transgender. Lower percentages of older adults identify as transgender, with 0.6% of adults age 25 to 64 and 0.5% of adults age 65 or older identifyingas transgender.

Table 2. Estimated Population of Adults Who Identify as Transgender by Age and State of Residence

STATE 18-24 25-64 GS AND OLDER

�OPULATl�Nf a ,• • • • ,;, S, PERCENTAGE

United States 205,850 0.66% 967,100 0.58% 217,050 0.50% of America

Alabama 3,250 0.67% 15,450 0.61% 3,700 0.53% Alaska 500 0.60% 1,950 0.48% 250 0.42% Arizona 4,700 0.72% 20,800 0.63% 4,850 0.50% Arkansas 1,850 0.65% 9,150 0.61% 2,300 0.52% California 33,450 0.84% 154,750 0.77% 29,050 0.63%

1/1 Q('\('\ n c_-:,01 '\ -,r-r\ ,... ,111r-r,; Colornrlo �?nn ° -.,,. ..,_,,v '-t' ,JV V,""T..J/0 1).53 6 . ,,_.._....., Connecticut 1,750 0.52% 8,450 0.44% 2,100 0.40% Delaware 700 0.73% 3,050 0.64% 800 0.55% District of Columbia 2,600 3.14% 9,900 2.66% 1,950 2.72% Florida 13,450 0.75% 66,750 0.67% 19,350 0.55% Georgia 8,700 0.86% 39,500 0.75% 7,450 0.66% Hawaii 1,200 0.89% 5,700 0.77% 1,550 0.72% Idaho 750 0.47% 3,250 0.41% 750 0.35% Illinois 7,150 0.57% 34,500 0.50% 7,750 0.46% Indiana 4,100 0.62% 18,950 0.56% 4,450 0.50% Iowa 1,100 0.35% 4,900 0.31% 1,350 0.29% Kansas 1,500 0.49% 6,300 0.43% 1,500 0.38% Kentucky 2,400 0.57% 12,200 0.52% 3,000 0.49% Louisiana 3,150 0.66% 14,550 0.60% 3,100 0.52% Maine 650 0.56% 3,650 0.50% 1,050 0.45% Maryland 3,200 0.57% 15,650 0.49% 3,300 0.43% Massachusetts 4,550 0.66% 20,150 0.56% 5,050 0.53% Michigan 4,800 0.48% 22,400 0.43% 5,600 0.39% Minnesota 3,450 0.69% 16,750 0.58% 3,950 0.54% Mississippi 2,100 0.66% 9,400 0.62% 2,150 0.53% Missouri 3,600 0.60% 17,000 0.54% 4,400 0.50% Montana 400 0.40% 1,800 0.34% 450 0.30%

HOW MANY ADULTS IDENTIFY AS TRANSGENDER IN THE UNITED STATES? 5 AGE I

STATE 18-24 25-64 65ANDOLDER . . . • Nebraska 800 0.44% 3,650 0.39% 900 0.35% Nevada 1,750 0.70% 9,100 0.61% ... 1,750 0.49% New Hampshire 650 0.50% 3,100 0.43% 750 0.39% New Jersey 3,950 0.51% 21,050 0.44% 5,050 0.41% New Mexico 1,800 0.85% 8,000 0.75% 1,850 0.62% New York 11,150 0.56% 54,150 0.51% 12,850 0.47% North Carolina 6,600 0.68% 31,050 0.60% 7,150 0.53% North Dakota 300 0.34% 1,050 0.30% 300 0.29% Ohio 5,550 0.50% 27,150 0.45% 7,000 0.41% Oklahoma 2,800 0.72% 12,600 0.64% 2,900 0.55% Oregon 2,800 0.76% 13,700 0.65% 3,150 0.55% Pennsylvania 6,100 0.48% 29,250 0.44% 8,250 0.40% Rhode Island 650 0.56% 2,800 0.51% 750 0.46% South Carolina 3,150 0.64% 14,250 0.58% 3,450 0.50% South Dakota 350 0.39% 1,400 0.34% 350 0.30%

IC! II 1c::,::,cc 4,2::iv U.Ol:57o L'l,!:>!:>O 0.63% 5,150 0.56% Texas 19,600 0.73% 88,950 0.66% 15,700 0.55% Utah 1,350 0.42% 4,950 0.36% 800 0.30% Vermont 450 0.67% 2,000 0.59% 550 0.53% Virginia 5,150 0.62% 24,000 0.54% 5,200 0.49% Washington 4,850 0.73% 23,150 0.62% 4,700 0.52% West Virginia 750 0.44% 4,150 0.42% 1,200 0.38% Wisconsin 2,700 0.49% 13,150 0.43% 3,250 0.39% Wyoming 200 0.37% 1,000 0.32% 200 0.29%

Discussion Our current best estimate of the percentage of adults who identify as transgender in the United States is double that of the estimate produced by Gary J. Gates in 2011. Several reasons may account for this difference.A perceived increase in visibility and social acceptance of transgender people may increase the number of individuals willing to identifyas transgender on a government-administered survey. The Gates estimate was based on data from only two states with very small samples. The current study analyzes population-based data from 19 states that identify transgender individuals. This provides larger samples and a wealth of information about transgender-identified adults not previously available. As a result, more sophisticated estimation procedures are now possible that produce more detailed and robust estimates than were possible in 2011. As new data collection efforts emerge at the state and national levels, estimates can continue to be refined to improve our understanding of the size and characteristics of the transgender population.

HOW MANY ADULTS IDENTIFY AS TRANSGENDER IN THE UNITED STATES? 6 Appendix: Methodology and Credible Intervals of Population Estimates

Methodology The Behavioral Risk Factor Surveillance System (BRFSS) collects state-specific data on health-related factors across the 50 states, the District of Columbia, and the territories of the United States. The survey is designed to be representative within each state. The survey is conducted by an interviewer via landline and cellular telephone. The national response rate for the 2014 BRFSS was 48.7% for landline telephones and 40.5% for cellular telephones (American Association of Public Opinion Research, Response Rate calculation 4).

The BRFSS contains optional module questionnaires in addition to its standard questionnaire for each state.9 The 2014 BRFSS had 19 optional modules that states were able to opt-into. One of the modules contained the following question:

Do you consider yourself to be transgender? Yes No

[If Yes]Do you consider yourself to be male-to-female, female-to-male, or gender non-conforming?

If the interviewer is asked for a definition of transgender, they respond: Some people describe themselves as transgender when they experience a different gender identity from their sex at birth. For example, a person born into a male body, but who feels female or lives as a woman would be transgender. Some transgender people change their physical appearance so that it matches their internal gender identity. Some transgender people take hormones and some have surgery. A transgender person may be of any sexual orientation - straight, gay, lesbian, or bisexual.

Since this question is included in an optional module, some states did not ask this question while others did. The 19 states that did ask this question include: Delaware, Hawaii, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maryland, Minnesota, Montana, Nevada, New York, Ohio, Pennsylvania, Vermont, Virginia, Wisconsin, and Wyoming. In total, 0.52% of BRFSS respondents in these states identified as transgender, and 151,4 56 respondents answered this question.

To estimate the population by state, we relied on multilevel regression and post-stratification.10 The method fits multilevel logistic regression to the data to predict the likelihood that an individual identifies as transgender relying on demographic attributes about the respondents (e.g., race and ethnicity; age cohorts; and educational attainment). State and regional characteristics were accounted for and state-level characteristics were included to add information about how states differ from one another (e.g., racial composition, median income, percentage of households that are of same-sex couples, and percentage of the population that identifies as Evangelical). This method has been applied to measure statewide political attitudes11 and to measure Jewish populations.12 Further, the estimation strategy has undergone rigorous evaluation by other scholars, and these evaluations often show the method produces reliable and valid estimates.13 While the estimation approach is not without its criticisms,14 the method remains the best available approach to perform this estimation procedure. A recent research grant was awarded by the National Science Foundation to further refine and build upon the method.15

We extend the application of the estimation technique by incorporating all of the states in the BRFSS, even though respondents in only 19 states received the gender identity question. By doing so, we impute the states that did not ask the gender identity question by modeling the probability that a respondent identifies as transgender. The hierarchical model still incorporates the statewide covariates to increase precision in the estimation.16 All models were estimated using a Hamiltonian Monte Carlo as implemented by the Stan probabilistic programming language.17 The model was evaluated for appropriate diagnostics before results were presented. In the tables below, 95% credible intervals are provided for both the population estimates and the population estimates by age. A credible interval is a Bayesian equivalent of a confidence interval. A 95% credible interval represents the upper and lower bounds where there is a 0.95 probability an estimate falls between them.

HOW MANY ADULTS IDENTIFY AS TRANSGENDER IN THE UNITED STATES? 7 Table A1. Estimated Population of Adults Who Identify as Transgender by State of Residence, 95% Credible Intervals

POPULATION PERCENT STATE LOWER BOUND UPPER BOUND LOWER BOUND UPPER BOUND United States of America 854,066 2,293,511 0.36% 0.95%

Alabama 11,487 46,858 0.31% 1.27% Alaska 1,634 4,323 0.30% 0.80% Arizona 17,137 53,889 0.35% 1.09% Arkansas 6,898 25,072 0.31% 1.12% California 120,074 378,513 0.42% 1.31% Colorado 12,094 35,295 0.31% 0.89% Connecticut 7,454 19,824 0.27% 0.71% Delaware 3,195 6,176 0.45% 0.87% District of Columbia 2,608 66,391 0.50% 12.63% Florida 58,364 163,960 0.38% 1.07% �. Georgia 31,243 97,981 0.42% 1.32% Hawaii 6,310 11,215 0.58% 1.03% Idaho 3,403 6,800 0.29% 0.58% Illinois 30,519 77,228 0.31% 0.79% Indiana 21,867 35,060 0.44% 0.71% Iowa 4,558 10,398 0.19% 0.44% Kansas 7,183 11,706 0.33% 0.54% Kentucky 13,092 23,060 0.39% 0.69% Louisiana 15,582 27,230 0.45% 0.78% Maine 3,202 8,895 0.30% 0.84% Maryland 17,177 28,088 : 0.38% 0.62% Massachusetts 17,251 49,307 0.33% 0.94% Michigan 19,132 52,059 0.25% 0.68% Minnesota 19,368 30,211 0.47% 0.74% Mississippi 6,731 27,122 0.30% 1.21% Missouri 13,512 43,611 0.29% 0.94% Montana 1,880 3,669 0.24% 0.47% Nebraska 3,247 8,207 0.23% 0.59% Nevada 8,570 18,018 0.41% 0.86% New Hampshire 2,693 7,362 0.26% 0.70% New Jersey 17,981 49,987 0.26% 0.73% New Mexico 6,613 19,959 0.42% 1.27% New York 57,043 103,813 0.37% 0.68%

HOW MANY ADULTS IDENTIFY AS TRANSGENDER IN THE UNITED STATES? 8 POPULATION PERCENT STATE LOWER BOUND UPPER BOUND LOWER BOUND UPPER BOUND North Carolina 26,299 76,786 0.35% 1.03% North Dakota 961 2,785 , 0.18% 0.51%

Ohio :t ..�., 30,705 50,183 0.35% 0.56% 9,049 37,798 0.31% 1.31% Oklahoma f. • Oregon 10,774 36,440 0.35% 1.20% Pennsylvania 33,506 56,799 0.33% 0.57% Rhode Island 2,493 6,979 0.30% 0.84% South Carolina 12,139 38,343 0.33% 1.05% South Dakota 1,279 3,592 0.20% 0.57% Tennessee 16,601 60,319 0.33% 1.22% Texas 71,791 212,200 0.38% 1.11% Utah 3,338 16,157 0.17% 0.82% Vermont 2,126 4,034 0.42% 0.80% Virginia 26,945 44,697 0.43% 0.71% Washington 18,574 57,196 0.35% 1.08% West Virginia 3,518 10,477 0.24% 0.71% Wisconsin 13,920 25,364 0.32% 0.58% Wyoming 945 2,073 0.22% 0.47%

HOW MANY ADULTSIDENTIFY AS TRANSGENDER IN THE UNITED STATES7 9 Ta ble A2. Estimated Population of Adu lts Who Identify as Transgender by Age and State of Residence, 95% Credible Intervals

18·24 25·64 65 AND OLDER STATE . POPULATION PERCENTAGE POPULATION , PERCENTAGE .- [LB, UB] [LB, UB] [LB, UB] ·. [LB, UB]

United States of [569,753, [121,074, 354,454] [0.39%, 1.13%] [0.34%, 1.00%] [132,175, 360,271] [0.31%, 0.84%] America 1,649,712]

Alabama [1,624, 7,089] [0.33%, 1.46%] [7,630, 32,564] [0.30%, 1.29%] [1,868, 7,887] [0.27%, 1.13%]

Alaska [282, 806] [0.35%, 0.99%] [1,132, 3,210] [0.28%, 0.81%] [157, 434] [0.25%, 0.69%]

Arizona [2,562, 8,556] [0.39%, 1.31%] [11,120, 37,886] [0.34%, 1.14%] [2,708, 8,560] [0.28%, 0.88%]

Arkansas [966, 3,550] [0.34%, 1.23%] [4,614, 17,456] [0.31%, 1.16%] [1,185, 4,384] [0.27%, 0.99%]

California [18,464, 60,029] [0.46%, 1.50%] [83,407, 274,478] [0.41%, 1.36%] [15,871, 51,075] [0.35%, 1.11%]

Colorado [1,796, 5,616] [0.35%, 1.10%] [8,404, 25,994] [0.30%, 0.92%] [1,595, 4,612] [0.26%, 0.76%]

Connecticut [1,024, 2,942] [0.30%, 0.86%] [4,988, 14,281] [0.26%, 0.74%] [1,253, 3,458] [0.24%, 0.65%]

Delaware [451, 974] [0.49%, 1.05%] [2,061, 4,417] [0.43%, 0.92%] [541, 1,074] [0.38%, 0.76%]

District of [470, 11,880] [0.57%, 14.48%] [1,786, 47,078] [0.48%, 12.65%] [361, 9,351] [0.51%, 13.10%] Columbia

Florida [7,554. 23.144] [0.42%, 1.29%] [37,404, 114,026] [0.37%, 1.14%] [11,453, 32,341] [0.33%, 0.92%]

Georgia [4,847, 16,177] [0.48%, 1.59%] [21,496, 71,304] [0.41%, 1.35%] [4,147, 13,309] [0.37%, 1.17%]

Hawaii [845, 1,662] [0.62%, 1.23%] [4,005, 7,975] [0.54%, 1.08%] [1,088, 2,098] [0.51%, 0.99%]

Idaho [500, 1,087] [0.32%, 0.69%] [2,224, 4,882] [0.28%, 0.61%] [525, 1,068] [0.25%, 0.50%]

Illinois [4,255, 11,778] [0.34%, 0.94%] [20,559, 55,749] [0.30%, 0.81%] [4,668, 12,533] [0.28%, 0.74%]

Indiana [3,045, 5,579] [0.46%, 0.84%] [14,012, 25,792] [0.41%, 0.76%] [3,457, 5,802] [0.39%, 0.65%]

Iowa [656, 1,617] [0.21%, 0.52%] [2,963, 7,376] [0.19%, 0.47%] [841, 1,939] [0.18%, 0.41%]

Kansas [1,065, 1,978] [0.36%, 0.66%] [4,565, 8,465] [0.31%, 0.58%] [1,130, 1,919] [0.29%, 0.49%]

Kentucky [1,665, 3,374] [0.39%, 0.80%] [8,649, 16,904] [0.37%, 0.73%] [2,190, 3,949] [0.36%, 0.64%]

Louisiana [2,204, 4,371] [0.46%, 0.92%] [10,310, 20,236] [0.43%, 0.84%] [2,260, 4,181] [0.38%, 0.71%]

Maine [378, 1,146] [0.32%, 0.98%] [2,120, 6,268] [0.29%, 0.87%] [607, 1,739] [0.27%, 0.77%]

Maryland [2,303, 4,398] [0.41%, 0.78%] [11,347, 21,316] [0.35%, 0.66%] [2,461, 4,307] [0.32%, 0.57%]

Massachusetts [2,568, 7,807] [0.37%, 1.13%] [11,326, 34,087] [0.31%, 0.95%] [2,832, 8,391] [0.30%, 0.88%]

Michigan [2,655, 7, 870] [0.27%, 0.79%] [12,593, 37,168] [0.24%, 0.72%] [3,240, 8,999] [0.23%, 0.63%]

Minnesota [2,541, 4,552] [0.51%, 0.91%] [12,539, 22,498] [0.44%, 0.78%] [3,043, 5,080] [0.42%, 0.70%]

HOW MANY ADULTS IDENTIFY AS TRANSGENDER IN THE UNITED STATES? 10 25·64 6S AND OLDER STATE 18·24 POPULATION PERCENTAGE POPULATION PERCENTAGE POPULATION PERCENTAGE [LB, UB] [LB, UB) [LB, UB] [LB, UB] [LB, UB] [LB, UB)

Mississippi [1,009, 4,310] [0.32%, 1.37%] (4,490, 19,158] [0.29%, 1.26%] (1,036, 4,327] [0.26%, 1.08%]

Missouri [1,876, 6,423] (0.32%, 1.08%] [8,975, 30,421] [0.29%, 0.97%] [2,324, 7,535] [0.26%, 0.85%]

Montana (266, 572] [0.27%, 0.58%] [1,222, 2,592] [0.23%, 0.49%] (323, 650] [0.21%, 0.41%]

Nebraska [473, 1,264] [0.25%, 0.68%] [2,143, 5,820] [0.23%, 0.61%] [551, 1,389] [0.21%, 0.54%]

Nevada [1,135, 2,646] [0.45%, 1.04%] [5,889, 13,545] [0.40%, 0.92%] [1,150, 2,547] [0.32%, 0.71%]

New Hampshire (356, 1,067] [0.28%, 0.85%] [1,798, 5,237] [0.25%, 0.72%] [450, 1,244] [0.23%, 0.64%]

New Jersey [2,265, 6,732] [0.29%, 0.86%] [12,204, 36,508] [0.25%, 0.76%] [3,013, 8,517] [0.24%, 0.68%]

New Mexico (988, 3,255] [0.46%, 1.53%] [4,389, 14,044] [0.41%, 1.32%] (1,011, 3,160] [0.34%, 1.07%]

New Yo rk [7,732, 15,788] [0.39%, 0.79%] [37,363, 76,111] [0.35%, 0.72%] [9,137, 17,614] [0.33%, 0.64%]

North Carolinn [3,765. 11,609] [0.39%, 1.19%] [17,757, 54,557] [0.34%, 1.06%] [4,194, 12,219) [0.31%, 0.91%]

North Dakota [170, 531] [0.19%, 0.59%] [593, 1,834] [0.17%, 0.51%] [170, 498] [0.17%, 0.50%]

Ohio [4,001, 7, 561] [0.36%, 0.68%] [19,701, 36,836] [0.32%, 0.61%] [5,251, 9,125] [0.31%, 0.54%]

v"1a1 1u1 11a li,;51, o,uo.::SJ [U . .j:)7o, ·1.�b%J [6,026, 26,649] [0.31%, 1.36%] [1,438, 6,011] [0.27%, 1.13%]

Oregon (1,512, 5,190] [0.41%, 1.42%] [7,380, 25,644] [0.35%, 1.22%] [1,714, 5,934] [0.30%, 1.02%]

Pennsylvania [4,284, 8,404] [0.34%, 0.67%] [21,090, 40,686] [0.31%, 0.60%] [6,172, 10,959] [0.30%, 0.54%]

Rhode Island [389, 1,143] [0.32%, 0.95%] [1,608, 4,817] [0.29%, 0.87%] (424, 1,219] [0.27%, 0.77%]

South Carolina [1,784, 5,944] [0.36%, 1.21%] [7,977, 26,549] (0.32%, 1.08%] [1,963, 6,533] [0.28%, 0.94%]

South Dakota [188, 577] [0.22%, 0.69%] [827, 2,452] [0.20%, 0.58%] [217, 631] [0.18%, 0.52%]

Te nnessee [2,220, 8,664] [0.36%, 1.39%] [11,036, 42,384] [0.32%, 1.24%] [2,740, 9,962] [0.30%, 1.09%]

Texas [10,763, 33,983] [0.40%, 1.27%] [49,965, 156,972] [0.37%, 1.16%] [8,906, 27,059] [0.31%, 0.95%]

Utah [617, 3,133] [0.19%, 0.96%] [2,244, 11,329] [0.16%, 0.83%] (385, 1,804] [0.14%, 0.67%]

Vermont (299, 629] [0.46%, 0.96%] [1,364, 2,844] [0.40%, 0.84%] [372, 745] [0.38%, 0.75%]

Virginia [3,798, 6,980] [0.46%, 0.85%] [17,590, 33,074] [0.40%, 0.75%] [3,987, 7,026] [0.38%, 0.66%]

Washington [2,662, 8,550] [0.40%, 1.29%] (12,748, 41,018] [0.34%, 1.10%] [2,655, 8,291] (0.29%, 0.91%]

West Virginia (427, 1,325] [0.25%, 0.76%] [2,347, 7, 299] [0.24%, 0.74%] [687, 2,040] [0.22%, 0.66%]

Wisconsin [1,883, 3,799] [0.34%, 0.69%] [9,141, 18,414] [0.30%, 0.61%] [2,287, 4,434] [0.28%, 0.54%]

Wyoming (135, 328] [0.23%, 0.57%] (634, 1,509] [0.21%, 0.49%] [141, 308] (0.19%, 0.41%]

*Note: LB=95% Lower bound; UB=95% Upper bound

HOW MANY ADULTS IDENTIFY AS TRANSGENDER IN THE UNITED STATES? 11 ENDNOTES

1 For a discussion of gender identity data collection in federal population-based surveys and recommended measures, see The Gen I USS Group. (2014). Best Practices forAsk ing Questions to Identify Tr ansgender and Other Gender Minority Respondents on Population-Based Surveys. J.L. Herman (Ed.). Los Angeles, CA: The Williams Institute, available at http://williamsinstitute.law.ucla. edu/wp-content/uploads/geniuss-report-sep-2014.pdf. 2 Gates, G.J. (2011). How many people are lesbian, gay, bisexual, and transgender? Los Angeles, CA: The Williams Institute, available at http://williamsinstitute.law.ucla.edu/wp-content/uploads/Gates-How-Many-People-LGBT-Apr-2011.pdf.A more recent report that was released in March 2016 provided estimates of the transgender population ages 13 and above in 15 states ("Estim ates of Transgender Populations in States with Legislation Impacting Transgender People, available at http:// williamsinstitute.law.ucla.edu/research/census-lgbt-demographics-studies/estimates-of-transgender-populations-in-states with-legislation-impacting-transgender-people/). These estimates were based on Gates' 2011 study and other estimates of the transgender youth population. We believe the current study provides more robust estim ates of the percentage of transgender identified adults in those 15 states. 3 A detailed description of the methodology for this study is included in the Appendix and further details will be included in a separate document published alongside this report. 4 For national and state estimates provided in this report, adult general population figures from the U.S. Census Bureau's American Community Survey, 2011-2013 3-year PUMS, were multiplied by the estimated percentage of transgender-identified adults to yield the estimated number of transgender-identified adults. 5 The District of Columbia is not included in this range for states. DC had a notably high percentage of transgender-identified adults (2.8%) and is considered an outlier due to its unique geogra phic (urban) and demographic profile.

6 See note #5. 7 See note #5.

8 See, for instance, Conran, K.J., Scott, G., Stowell, G.S., and Landers, S. J. (2012). Transgender Health in Massachusetts: Results from a Household Probability Sample of Adults. American Journalof Public Health, 102(1), 118-122. 9 For more detailed information on gender identity data collection in the BRFSS, see Baker, K.E. & Hughes, M. (2016). Sexual Orientation and Gender Identity Data Collection in the Behavioral Risk Factor Surveillance System. Washington, DC: The Center for American Progress, available at https://cdn.americanprogress.org/wp-content/uploads/2016/03/29090401/BRFSSdatacollect brief-03.31.16.pdf. 10 Park, D.K., Gelman, A., & Bafumi, J. (2004). Bayesian multilevel estimation with poststratification: State-level estimates from national polls. Political Analysis, 12, 375-385. 11 Flores, A.R., & Barclay, S. (2015). Trends in public support formar riage forsame-se x couples by state. Los Angeles, CA: The Williams Institute, UCLA. 12 Saxe, L., & Tighe, E. (2013). Estimating and understanding the Jewish population in the United States: A program of research. Contemporary Jewry, 33(1), 43-62; Tighe, E., Livert, D., Barnett, M., & Saxe, L. (2010). Cross-survey analysis to estimate low incidence religious groups. Sociological Methods & Research, 39(1), 56-82. 13 Lax, J.R., & Phillips, J.H. (2009). How should we estimate public opinion in the states? American Journalof Political Science, 53(1), 107-121; Warshaw, C., & Rodden, J. (2012). How should we measure district-level public opinion on individual issues? Journalof Politics, 74(1), 203-219. 14 Buttice, M.K., Highton, B. (2013). How does multilevel regression and poststratification perform with conventional national surveys? Political Analysis, 21(4), 449-467; Toshokov, D. (2015). Exploring the performance of multilevel modeling and poststratification with Eurobarometer data. Political Analysis, 23(3), 455-460. 15 NSF-1424962. (2014-2017). Using multilevel regress and post-stratification to measure and study dynamic public opinion. 16 See Flores, A.R. (2016). Estimating the adult population that identifies as transgender in the BRFSS. Los Angeles, CA: The Williams Institute, UCLA. 17 Stan Development Te am. (2016) RStan: The R interface to Stan, version 2.9.0. http://mc-stan.org.

HOW MANY ADULTS IDENTIFY AS TRANSGENDER IN THE UNITED STATES? 12 ABOUT THE AUTHORS

Andrew R. Flores, Ph.D. is Publ ic Opinion and Policy Fellow at the Will iams Institute and will enter Mills College as an Assistant Professor of Government in Fall 2016.

Jody L. Herman, Ph.D. is a Scholar of Public Pol icy at the Will iams Institute. She holds a Ph.D. in Public Policy and Public Administration from The George Washington University.

Gary J. Gates, Ph.D. is a retired Distinguished Scholar at the Williams Institute, and studies the demographic, economic, and geographic characteristics of the LGBT population.

Taylor N. T. Brown, M.P.P. is a Public Policy Analyst at the Williams Institute. He holds a Master of Public Policy from The University of Virginia.

FOR MORE INFORMATION

THE WILLIAMS INSTITUTE, UCLA SCHOOL OF LAW BOX 951476 LOS ANGELES, CA 90095-1476 (310) 267-4382

[email protected] WILLIAMS! NSTITUTE.LAW.UCLA.EDU

Suggested citation: Flores, A.R., Herman, J.L., Gates, G.J., & Brown, T.N.T. (2016). How Many Adults Identify as Tr ansgender in the United States? Los Angeles, CA: The Williams Institute.

HOW MANY ADULTS IDENTIFY AS TRANSGENDER IN THE UNITED STATES? 13

Nos. 17-1618, 17-1623, 18-107 ======In The Supreme Court of the United States ------ ------GERALD LYNN BOSTOCK, Petitioner, v. CLAYTON COUNTY, GEORGIA, Respondent. ------ ------ALTITUDE EXPRESS, INC. and RAY MAYNARD, Petitioners, v. MELISSA ZARDA AND WILLIAM MOORE, JR., CO-INDEPENDENT EXECUTORS OF THE ESTATE OF DONALD ZARDA, Respondents. ------ ------R.G. & G.R. HARRIS FUNERAL HOMES, INC., Petitioner, v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION and AIMEE STEPHENS, Respondents. ------ ------On Writs Of Certiorari To The United States Courts Of Appeals For The Eleventh, Second, And Sixth Circuits ------ ------BRIEF OF GEORGIA EQUALITY AS AMICUS CURIAE IN SUPPORT OF THE EMPLOYEES ------ ------EMMET J. BONDURANT [email protected] Counsel of Record JOHN H. RAINS IV [email protected] AMANDA KAY SEALS [email protected] BONDURANT MIXSON & ELMORE LLP 3900 One Atlantic Center 1201 West Peachtree Street NW Atlanta, GA 30309 Tel: (404) 881-4100 Counsel for Amicus Curiae Georgia Equality ======COCKLE LEGAL BRIEFS (800) 225-6964 WWW.COCKLELEGALBRIEFS.COM

TABLE OF CONTENTS Page INTEREST OF AMICUS CURIAE ...... 1 SUMMARY OF THE ARGUMENT ...... 2 ARGUMENT ...... 3 I. TITLE VII PROHIBITS DISCRIMINA- TION BECAUSE OF SEX, INCLUDING DISCRIMINATION ARISING FROM AN EMPLOYEE’S SEXUAL ORIENTATION OR TRANSGENDER STATUS ...... 3 II. GEORGIANS RECOGNIZE THE IM- PORTANCE OF PROTECTION FROM WORKPLACE DISCRIMINATION AND THE DISPROPORTIONATE AND SOME- TIMES UNIQUE RISKS LGBTQ INDI- VIDUALS FACE ...... 6 A. Employment Discrimination Further Endangers Already Vulnerable Chil- dren ...... 6 B. Allowing Workplace Discrimination Against LGBTQ Workers Would Lead to More Harmful Harassment of LGBTQ People ...... 9 C. Employment Discrimination Threat- ens the Economic Security of LGBTQ People and Their Families ...... 12 D. Employment Discrimination Exacer- bates the Risk of Violence Faced by LGBTQ Individuals ...... 15 E. Employment Discrimination Contrib- utes to Poorer Mental Health ...... 18

TABLE OF CONTENTS – Continued Page F. LGBTQ Educators Are Uniquely Situated to Advocate for Vulnerable LGBTQ Youth ...... 20 III. DESPITE THE DISCRIMINATION THAT INDIVIDUAL LGBTQ PERSONS EXPERI- ENCE IN GEORGIA, A GROWING CONSENSUS OVERWHELMINGLY SUP- PORTS PROTECTING LGBTQ PERSONS FROM WORKPLACE DISCRIMINATION ... 23 A. Georgians Support Unambiguous Pro- tections for LGBTQ Employees ...... 23 B. Georgia’s Business Community Strongly Supports Protecting LGBTQ Citizens from Discrimination at Work and Else- where ...... 26 C. Local governments offer their own protections in increasing numbers ...... 29 CONCLUSION ...... 31

APPENDIX Appendix A – Tables of Georgia City and County Non-Discrimination Ordinances ...... App. 1

iii

TABLE OF AUTHORITIES Page

CASES: Baldwin v. Foxx, EEOC Appeal No. 0120133080, 2015 WL 4397641 (July 15, 2015) ...... 5 Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005) ...... 4 Boutillier v. Hartford Pub. Sch., 221 F. Supp. 3d 255 (D. Conn. 2016) ...... 4 City of Los Angeles Dep’t of Power & Water v. Manhart, 435 U.S. 702 (1978) ...... 3 Fabian v. Hosp. of Cent. Conn., 172 F. Supp. 3d 509 (D. Conn. 2016) ...... 4 Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993) ...... 4 Hively v. Ivey Tech. Cmty. Coll. of Indiana, 853 F.3d 339 (7th Cir. 2017) ...... 4 Isaacs v. Felder Servs., LLC, 143 F. Supp. 3d 1190 (M.D. Ala. 2015) ...... 4 Macy v. Dep’t of Justice, EEOC Appeal No. 0120120821, 2012 WL 1435995 (April 20, 2012) ...... 5 Oncale v. Sundowner Offshores Servs., Inc., 523 U.S. 75 (1998) ...... 4 Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) ...... 3

TABLE OF AUTHORITIES – Continued Page Rosa v. Park W. Bank & Tr. Co., 214 F.3d 213 (1st Cir. 2000) ...... 4 Schroer v. Billington, 577 F. Supp. 2d 293 (D.D.C. 2008) ...... 4 Smith v. City of Salem, Ohio, 378 F.3d 566 (6th Cir. 2004) ...... 4 U.S. Equal Emp’t Opportunity Comm’n v. Scott Med. Ctr., P.C., 217 F. Supp. 3d 834 (W.D. Pa. 2016) ...... 4 Videckis v. Pepperdine Univ., 150 F. Supp. 3d 1151 (C.D. Cal. 2015) ...... 4 Winstead v. Lafayette Cty. Bd. of Cty. Comm’rs, 197 F. Supp. 3d 1334 (N.D. Fla. 2016) ...... 4 Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018) ...... 4

INTEREST OF AMICUS CURIAE1 Georgia Equality is the largest civil rights organization dedicated to securing full equality for Georgia’s lesbian, gay, bisexual, transgender, and queer or questioning (LGBTQ) community. Founded in 1995, Geor- gia Equality raises the voices of LGBTQ people and allies to Georgia’s institutions, striving to create a state that is healthy, just, and fully equal for all LGBTQ people. Georgia Equality advances civil rights through education, advocacy, mobilization, legislation, and policy. Georgia Equality combats discrimination and injustice on the basis of sexual orientation or gender identity or expression and protects the LGBTQ community’s needs and interests, as well as advocating for the interests of vulnerable communities of which LGBTQ people are a part. Georgia Equality therefore has an interest in promoting equal opportunity for LGBTQ people in employment. Georgia Equality files this brief as amicus curiae to highlight the importance of preserving the protections the LGBTQ community enjoys against discrimination under federal law. Public and private sector employers throughout Georgia have made tremendous

1 Pursuant to Sup. Ct. R. 37.6, the amicus curiae and its counsel state that none of the parties to this case nor their counsel authored this brief in whole or part, and that no person, party, party’s counsel or entity made a monetary contribution intended to fund the preparation or submission of this brief; and no one other than the amicus curiae and its counsel have contributed money for this brief. The amicus curiae files this brief with the written consent of all parties. All parties received timely notice of amicus curiae’s intention to file this brief.

progress in recognizing and implementing protections for LGBTQ persons against employment discrimination. Title VII’s prohibition against discrimination based on sex stands as that framework’s cornerstone, and the Court should reinforce and confirm prior judicial and administrative agency rulings guaranteeing employees nationwide legal protection from discrimination and harassment based on their sex, including discrimination based on sexual orientation or transgender status. To supply critical context to the Court, Georgia Equality presents the stories of LGBTQ Georgians who have endured employment discrimination and also draws attention to the growing consensus among employers and governments throughout the state that all people should be protected from discrimination and harassment in the workplace, especially when such discrimination is because of their sex, including their sexual orientation or their being transgender.

------ ------

SUMMARY OF THE ARGUMENT Courts across the United States have held that Ti- tle VII’s prohibition against discrimination because of sex protects LGBTQ persons from discrimination based on their sexual orientation or transgender status. Protecting people from discrimination on these bases safeguards the health, safety, and wellbeing of LGBTQ persons. It is not surprising, therefore, that an overwhelming majority of Georgians and Georgia businesses recognize and support the protection of LGBTQ

3 persons from employment discrimination. The Court should confirm that Title VII’s prohibition on discrimination based on sex shields LGBTQ persons from discrimination based on their sexual orientation or gender identity or expression.

------ ------

ARGUMENT I. TITLE VII PROHIBITS DISCRIMINATION BECAUSE OF SEX, INCLUDING DISCRIM- INATION ARISING FROM AN EMPLOYEE’S SEXUAL ORIENTATION OR TRANSGENDER STATUS. Properly understood, Title VII protects employees from discrimination because they are LGBTQ. On its face, Title VII prohibits discrimination because of an employee’s sex. This Court’s Title VII jurisprudence compels the conclusion that Title VII’s prohibition on discrimination because of an employee’s sex encompasses discrimination based on sexual orientation and transgender status.2 Indeed, in Price Waterhouse, this Court emphasized that, “[i]n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.”3 Thus, under this Court’s decisions, if

2 See, e.g., Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), superseded in part by The Civil Rights Act of 1991, Tit. I, § 107(a), 105 Stat. 1075 (codified at 42 U.S.C. § 2000e–2(m)). 3 Id. at 251 (quoting City of Los Angeles Dep’t of Power & Wa- ter v. Manhart, 435 U.S. 702, 707 n.13 (1978)) (emphasis added).

4 an employer fires an employee who is a man because he seeks intimate relationships with other men (but would not have done so if that same man sought relationships with women), the employer has fired that person “because of [his] sex.” Only men would face adverse employment action for their attraction to men; other individuals would be able to keep their jobs (although the same employer might fire women because they are lesbians). Gay men in such situations have therefore been “exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.”4 Disparate treatment of this sort is precisely what Title VII and decades of this Court’s precedents are meant to redress. It is no surprise then that Federal courts across our country have held that Title VII protects LGBTQ employees.5 And the EEOC, the agency Congress

4 Oncale v. Sundowner Offshores Servs., Inc., 523 U.S. 75, 80 (1998) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 25 (1993) (Ginsburg, J., concurring)). 5 See, e.g., Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018) (en banc); Hively v. Ivey Tech. Cmty. Coll. of Indiana, 853 F.3d 339 (7th Cir. 2017) (en banc); Barnes v. City of Cincin- nati, 401 F.3d 729 (6th Cir. 2005); Smith v. City of Salem, Ohio, 378 F.3d 566 (6th Cir. 2004); Rosa v. Park W. Bank & Tr. Co., 214 F.3d 213 (1st Cir. 2000); Boutillier v. Hartford Pub. Sch., 221 F. Supp. 3d 255 (D. Conn. 2016); U.S. Equal Emp’t Opportunity Comm’n v. Scott Med. Ctr., P.C., 217 F. Supp. 3d 834 (W.D. Pa. 2016); Winstead v. Lafayette Cty. Bd. of Cty. Comm’rs, 197 F. Supp. 3d 1334 (N.D. Fla. 2016); Isaacs v. Felder Servs., LLC, 143 F. Supp. 3d 1190 (M.D. Ala. 2015); Videckis v. Pepperdine Univ., 150 F. Supp. 3d 1151 (C.D. Cal. 2015); Fabian v. Hosp. of Cent. Conn., 172 F. Supp. 3d 509 (D. Conn. 2016); Schroer v. Bil- lington, 577 F. Supp. 2d 293, 308 (D.D.C. 2008).

charged with enforcing Title VII, applied the statute the same way for years.6 Despite this established law and widespread public support for measures protecting LGBTQ employees from discrimination, Title VII’s protections remain insecure for many LGBTQ employees, and many of them are unaware of the prior rulings on federal courts and the EEOC. Those in states that – like Georgia – lack their own state laws expressly prohibiting employment discrimination based on sexual orientation and transgender status remain especially vulnerable. The experiences of ordinary Georgians confirm how vulnerable our friends and neighbors are to employment discrimination. But their experiences also tell a more hopeful story about what affirming employment can mean for LGBTQ people.

6 Baldwin v. Foxx, EEOC Appeal No. 0120133080, 2015 WL 4397641, at *4 (July 15, 2015) (“Title VII’s prohibition of sex discrimination means that employers may not rely upon sex-based considerations or take gender into account when making employment decisions. This applies equally in claims brought by lesbian, gay, and bisexual individuals under Title VII.” (internal citations omitted; alterations and quotation marks omitted)); Macy v. Dep’t of Justice, EEOC Appeal No. 0120120821, 2012 WL 1435995 (April 20, 2012).

II. GEORGIANS RECOGNIZE THE IMPOR- TANCE OF PROTECTION FROM WORK- PLACE DISCRIMINATION AND THE DISPROPORTIONATE AND SOMETIMES UNIQUE RISKS LGBTQ INDIVIDUALS FACE. A. Employment Discrimination Further En- dangers Already Vulnerable Children. The story of Gerald Bostock, one of the employees whose case is before this Court, illustrates how employment discrimination affects not only LGBTQ people, but the communities in which they live and work. Gerald worked in Clayton County as a child welfare services coordinator in the juvenile court until he was fired after his employer learned he is gay. Before he was fired, Gerald worked daily with children in foster care, a population in which – research confirms – LGBTQ youth are overrepresented. For example, a recent study published in the journal Pediatrics showed that LGBTQ youth are overrepresented in foster care by a disproportionality index of more than two to one.7 In other words, “the proportion of LGBTQ youth in foster care and unstable housing is 2.3 to 2.7 times larger than would be expected from estimates of LGBTQ youth in nationally

7 Laura Baams, Bianca D.M. Wilson, Stephen Russell, LGBTQ Youth in Unstable Housing and Foster Care, 143 Pediat- rics 1, 4 (2019), available at https://www.childrensrights.org/wp- content/uploads/2019/04/2019.02.12-LGBTQ-Youth-in-Unstable- Housing-and-Foster-Care.pdf.

representative adolescent samples.”8 And earlier research suggests that number may be increasing: A study published in 2014 that, like the 2019 Pediatrics article analyzed foster care populations in Los Angeles, estimated that there were “between 1.5 to 2 times as many LGBTQ youth living in foster care as LGBTQ youth estimated to be living outside of foster care.”9 Once in foster and other out-of-home care, LGBTQ youth are more likely to suffer abuse and harassment by social work professionals, foster parents, and their peers than other youth.10 As one child welfare professional reported to the journal Child Welfare, “In most agencies, it’s just not safe for a gay or lesbian young person to be identified.”11 The absence of LGBTQ professionals, like Gerald, within the child welfare system, therefore, has an out- sized impact. Discrimination against LGBTQ adults working in the child welfare system shrinks the ranks

8 Id. The Williams Institute’s study of youth in foster care in L.A. found that 19%, or almost 1 in 5, young people in foster care identify as LGBTQ. See https://williamsinstitute.law.ucla.edu/ wp-content/uploads/LAFYS_report_final-aug-2014.pdf. 9 Bianca D.M. Wilson, Khush Cooper, Angeliki Kastanis, Sheila Nezhad, Sexual & Gender Minority Youth in Los Angeles Foster Care: Assessing Disproportionality and Disparities in Los Angeles, The Williams Institute, UCLA School of Law (2014), available at https://williamsinstitute.law.ucla.edu/wp-content/ uploads/LAFYS_report_final-aug-2014.pdf. 10 Baams, et al., supra note 7, at 1. 11 Gerald P. Mallon, Nina Aledort, Michael Ferrera, There’s No Place Like Home: Achieving Safety, Permanency, and Well- Being for Lesbian and Gay Adolescents in Out-of-Home Care Set- tings, 2002 Child Welfare 407, 419.

of adults uniquely situated to understand the experiences of and advocate for LGBTQ youth there. Thus, Gerald’s wrongful termination not only deprived him of a job he loved and threatens his financial security; it also makes an already vulnerable population of young people even more so. Jameka Evans, a lesbian, was once one of these vulnerable children living in foster care,12 and she became an adult who worked with another vulnerable population. Beginning in 2012, Jameka worked as a security guard at Savannah’s Georgia Regional Hospital, which is operated by the Georgia Department of Be- havioral Health and Developmental Disabilities. At 23 years old, she became the youngest supervisor in her department,13 handling security for a facility that includes a 24-hour psychiatric emergency room, provides evaluation and treatment to adults living with mental illness and developmental disabilities.14 The facility also includes a forensic services unit for individuals court ordered to psychiatric treatment. Jameka found pride and purpose in work. “Every day, [she] made sure these patients were safe,” would “de-escalate situations if need be,” and made sure patients “had a sense of support” from the security staff,

12 https://www.youtube.com/watch?v=5Fo5qdBU6dI (foster care mention at 1:26). 13 Id. (supervisor mention at 2:04). 14 https://dbhdd.georgia.gov/georgia-regional-hospital-savannah- grhs-savannah-ga.

who were some of the most constant figures in the patients’ daily lives.15 And yet, Jameka left a job she loved after harassment made her professional life unbearable. Not only did managers reassign Jameka – and only Jameka – to increasingly undesirable shifts,16 threatening behavior from colleagues and supervisors made her fear for her physical and emotional safety.17

B. Allowing Workplace Discrimination Against LGBTQ Workers Would Lead to More Harmful Harassment of LGBTQ People. Jameka is not an outlier. A majority of LGBTQ Americans – 60% – report that they have endured slurs because of their sexual orientation.18 A majority also report experiencing sexual harassment and violence.19 Another survey showed that, among lesbian,

15 Out at Work Video, https://www.youtube.com/watch?v=5 Fo5qdBU6dI (quote at 2:20). 16 Second Amended Complaint ¶¶ 12–13, Evans v. Ga. Dep’t of Behavioral Health & Developmental Disabilities, No. 4:15-cv- 00103-JRH-GRS (S.D. Ga. Feb. 20, 2018). 17 Id. ¶¶ 14–16. 18 Discrimination in America: Experience and Views of LGBTQ Americans, NPR, Robert Wood Johnson Foundation, and Harvard T.H. Chan School of Public Health, November 2017, at 8, available at https://www.npr.org/documents/2017/nov/npr- discrimination-lgbtq-final.pdf. 19 Id. Fifty-one percent of the LGBTQ Americans surveyed reported experiencing sexual harassment; another 51% reported violence.

gay, and bisexual people who are “out” in the workplace, “56% have experienced at least one form of employment discrimination because of their sexual orientation.”20 Workplace discrimination and harassment is not a relic of the past. Scott Spencer, a construction manager in DeKalb County, recounts the events of one day in June 2019: This week on a jobsite, I heard three separate incidents of anti-gay rhetoric tossed around: One by a tradesman, so I said nothing out of fear of disrupting the work force. One by a customer, so I said nothing out of fear of rock- ing the business relationship. One by my manager’s peer, so I said nothing for fear of being fired. The worst part was that I was not the only one who heard these remarks and observed my silence. There was an LGBTQ college student working with me who also heard everything. The numbers are even more “staggering” for transgender employees, 90% of whom “report

20 Jennifer C. Pizer, Brad Sears, Christy Mallory & Nan D. Hunter, Evidence of Persistent and Pervasive Workplace Discrim- ination Against LGBT People, The Need for Federal Legislation Prohibiting Discrimination and Providing for Equal Employment Benefits, 45 Loy. L.A. L.Rev. 715, 723 (2012).

experiencing some form of harassment or mistreatment on the job.”21 Jordan Bernard is one such woman. Jordan, a transgender woman of color, was fired from her manu- facturing job in Pendergrass, Georgia, after she reported violent threats made by a co-worker.22 Her employer, to whom Jordan had recently come out as transgender, did not terminate the employee who threatened her. This was not the first time Jordan had experienced harassment and discrimination at work. At an earlier retail job, Jordan enjoyed support and affirmation from the manager who hired her. An inter-company transfer introduced a new manager who insisted – contrary to widely accepted medical recommendations23 – that Jor- dan adhere to the dress code for men. Jordan did what the manager demanded, “because [she] need[ed] to sur- vive,” but her new manager nonetheless scheduled her for fewer and fewer shifts, until she was forced to leave

21 Working For Inclusion, U.S. Comm’n on Civil Rights (Nov. 2017), available at https://www.usccr.gov/pubs/docs/LGBT_ Employment_Discrimination2017.pdf. 22 https://www.youtube.com/watch?v=Wj6G2kdtcVk (at around 1:30). 23 Lisa R. Miller and Eric Anthony Grollman, The Social Costs of Gender Nonconformity for Transgender Adults: Implica- tions for Discrimination and Health, 20 Sociologica Forum 809- 831 (2015); Colton L. Keo-Meier and Christine Labuski, The Demographics of the Transgender Population, in International Handbook on Demography of Sexuality 289–327 (Amanda K. Baumle Ed., 2013).

that job for one offering a more stable source of income.24

C. Employment Discrimination Threatens the Economic Security of LGBTQ Peo- ple and Their Families. Of course, discrimination results in economic insecurity that endangers not only employees, but their de- pendents. “Child rearing among same-sex couples is more common in the South than in any other region of the country.”25 Roughly one-in-three LGBTQ people in Georgia is raising at least one child.26 Dave Pierce’s experience establishes this point. At his current employer, “a quasi-governmental agency with a strong non-discrimination policy, [he] felt affirmed and valued evenbefore [he] accepted the job,” so much so that Dave was “confident enough to mention my husband in the interview.” Previously, Dave worked at a company “that covered domestic partners under the company health plan, but only opposite-sex couples. [He] vividly remember[s] that qualifier emphasized in italics during the human resources presentation.” Dave says that qualifier “communicated clearly that my employer did not value me as much as other employees, and the feeling of insecurity

24 https://www.youtube.com/watch?v=Wj6G2kdtcVk (at around 1:15–20). 25 Sabrina Tavernise, Gay Parents Find the South More Wel- coming, Census Says, N.Y. Times, Jan 18, 2011. 26 https://www.lgbtmap.org/equality_maps/profile_state/GA.

permeated my entire workplace experience.” By contrast, thanks to his current employer, Dave and his “husband feel secure enough to begin thinking about growing our family.” In short, the ability of LGBTQ to raise and support families depends on secure and safe employment, and single gay, lesbian, bisexual, transgender, and queer adults raising children are uniquely vulnerable, as they are “three times more likely than comparable non-LGBT[Q] individuals to report household incomes near the poverty threshold.”27 The financial insecurity that comes with discrimination cannot be understated, and the need for financial security – not only for employees, but for the families that rely on them – has led many LGBTQ Georgians to hide their identities at work. Anna Lange is a woman who is transgender with 22 years of law enforcement experience, currently serving as a Sergeant in the Criminal Investigations Divi- sion in a Middle Georgia sheriff ’s department. Anna postponed her medical transition for more than a decade because she feared losing a job she loved and the financial security it gave her family. With a young child, I wasn’t going to risk losing the ability to keep a roof over our heads, food on the table, or medical insurance. Not having clear cut legal protections certainly

27 Gary J. Gates, LGBT Parenting in the United States (2013), available at http://williamsinstitute.law.ucla.edu/wp- content/uploads/LGBT-Parenting.pdf.

delayed me living my true life and threatened my ability to perform my chosen career path as an officer of the law. Carrying this burden for so many years was difficult. After more than 15 years, Anna could not wait any longer. I realized that the fear of being ostracized or terminated had driven me to such a dark place, and all I wanted to do was be who I was meant to be and still be a law enforcement officer. Six months after she began her medical transition in 2016, Anna approached the County’s Human Re- sources Director. With the Director’s support, Anna came out to the Sheriff and his Chief Deputy, knowing that the County lacked explicit protections for sexual orientation or transgender status in its employment policies. In the two years that have followed, Anna has “felt like [she has] a target on [her] back” at work. She “walk[s] on eggshells,” convinced that she cannot “give them any reason to find fault with [her] work.” While at work, she has endured slurs and “countless jokes” at her expense, but Anna also emphasizes that, even in her mostly rural, Middle Georgia county, the majority of her colleagues have been tolerant and supportive.

D. Employment Discrimination Exacer- bates the Risk of Violence Faced by LGBTQ Individuals. If employers are allowed to harass, fire, and otherwise discriminate against LGBTQ employees, that sends a message that prejudice and harm to members of the LGBTQ community is acceptable, and makes more likely that LGBTQ people will be subjected to other bias-based harms, including violence. In addition, the fact that LGBTQ people are disproportionately likely to be victims of crime underscores the need for LGBTQ individuals – like Anna and Jeremy Dailey – to have secure jobs in law enforcement, who are likely to be particularly sensitive to the experiences of these crime victims. Jeremy Dailey, an Assistant District Attorney in Atlanta, “embraced [his] sexuality not long after” he became a prosecutor. Now, he is “one among a number of openly LGBTQ employees,” but as a first-year associate in a small firm the morning the Obergefell decision came down, Jeremy, still in the closet, “silently celebrated while one of the partners loudly” derided the decision. According to Jeremy, “This confirmed that I needed to stay closeted, knowing my sexual orientation would hinder my career.” Now, however, Jeremy says, “it makes a world of difference connecting with my colleagues, knowing that my office will support me every step of the way.” Affirming and inclusive law enforcement is critical, as F.B.I. data show that lesbian, gay, bisexual, and

transgender people are the most frequent targets of hate crimes in America.28 LGBTQ people are also at special risk of violence visited upon them by those clos- est to them. Research from the Centers for Disease Control indicates that sexual minorities experience “intimate partner violence at rates equal to or higher than” their heterosexual-identified peers.29 The situation is even more dire for bisexual women: Approxi- mately one in three bisexual women, compared to one in six heterosexual women, have experienced stalking “in which they felt very fearful or believed that they or someone close to them would be harmed or killed”;30 one in five bisexual women report having been raped by an intimate partner, compared to 1 in 10 heterosexual women;31 and one in three bisexual women, compared to one in seven heterosexual women, have reported injury “as a result of rape, physical violence, and/or stalking by an intimate partner.”32 Other research shows that transgender people are at even higher risk for violence. For example, in the largest ever survey of transgender people in America, nearly half – 47% – of respondents reported having

28 https://www.fbi.gov/news/stories/latest-hate-crime-statistics- available (Nov. 16, 2015); see also https://www.nytimes.com/interactive/ 2016/06/16/us/hate-crimes-against-lgbt.html (analyzing same data). 29 https://www.cdc.gov/violenceprevention/pdf/cdc_nisvs_ victimization_final-a.pdf at 1. 30 Id. at 2. 31 Id. 32 Id.

“been sexually assaulted at some point in their lifetime.”33 One in ten “reported being physically attacked in the past year because of being transgender.”34 And among transgender women of color, the rates of fatal violence – murder – have risen so high, the American Medical Association (AMA) has responded. Just weeks ago, the AMA’s House of Delegates asked the organization to “partner with other medical organizations and stakeholders to immediately increase efforts to ed- ucate the general public, legislators and members of law enforcement using verified data related to the hate crimes against transgender individuals highlighting the disproportionate number of Black transgender women who have succumbed to violent deaths.”35 Despite these disproportionate rates of violence, LGBTQ people remain reluctant to interact with police. More than half of respondents to the 2015 U.S. Transgender Survey reported “they would feel uncomfortable asking the police for help if they needed it.”36 Similarly, a 2013 survey showed that only 45% of those who have survived violence visited upon them because of their LGBTQ status reported such crimes to the

33 S.E. James, J.L. Herman, S. Rankin, M. Keisling, L., Mottet, & M. Anafi, The Report of the 2015 U.S. Transgender Sur- vey, Washington, DC: National Center for Transgender Equality (2016) at 205, available at https://www.transequality.org/sites/ default/files/docs/USTS-Full-Report-FINAL.pdf. 34 Id. 35 https://www.ama-assn.org/house-delegates/annual-meeting/ highlights-2019-ama-annual-meeting. 36 https://www.transequality.org/sites/default/files/docs/USTS- Full-Report-FINAL.pdf at 188.

police.37 If LGBTQ people are openly represented in law enforcement agencies, the way Anna and Jeremy are in their respective offices, this is less likely to be true.

E. Employment Discrimination Contributes to Poorer Mental Health. Connie Galloway of Blue Ridge, Georgia, and her partner of nearly 20 years have endured what Anna feared – the actual economic toll of discrimination. A pretextual firing months before her retirement plan vested robbed Connie and her partner Dixie of approximately $25,000 annually to which they would have otherwise been entitled. Though a previous supervisor was supportive of her identity as a lesbian, and despite flawless performance reviews and decades of experience, Connie was fired shortly after an interim CEO took over the agency. Not only was her termination of great financial consequence, Connie paid an enormous emotional price. Connie devoted 31 years to this community mental health organization, serving people with substance abuse disorders and other mental health needs in the North Georgia Mountains. Connie “gave [her] life to this agency.”

37 Lesbian, Gay, Bisexual, Transgender, Queer and HIV- Affected Hate Violence in 2012, National Coalition of Anti- Violence Programs (2013) at 9, available at http://www.avp.org/wp- content-uploads/2017/04/2013-ncavp-hvreport-final.pdf.

When I was fired, it was gut-wrenching and humiliating. I had dedicated my life and in one moment, poof, I was gone from there. I was not only an emotional wreck from being fired after working there for 31 years but the financial impact was sudden and traumatic. My partner was in graduate school full-time and over halfway through her program. I searched for another job but was unable to find one. I was not sure how we were going to make it. LGBTQ people are as much as 2.5 times more likely to experience depression, anxiety, and substance abuse disorders.38 They are more likely to rate their own health as poor and live with more chronic conditions and have higher rates and earlier onset of disability than others.39 Additionally, fear of discrimination imposes obstacles to healthcare for many LGBTQ people. More than half of respondents to one survey of nearly 5,000 LGBTQ people reported that they have experienced discrimination when seeking healthcare, whether “being refused needed care; health care professionals refusing to touch them or using excessive

38 David J. Lick, Laura E. Durso, & Kerri L. Johnson (2013), Minority Stress and Physical Health Among Sexual Minorities, 8 Pers. on Psychological Sci. 8(5): 521-548; Cochran, S.D., Sullivan, J.G. & Mays, V.M. (2003), Prevalence of Mental Disorders, Psy- chological Distress, and Mental Health Services Use Among Les- bian, Gay, and Bisexual Adults in the United States, 71 J. of Consulting and Clinical Psychology 71(1) 53-61, available at http://www.stat.ucla.edu/~cochran/PDF/PrevalenceDisorders LGBinUS.pdf. 39 Lick, et al.

precautions, health care professionals using harsh or abusive language; being blamed for their health status; or health care professionals being physically rough or abusive.”40

F. LGBTQ Educators Are Uniquely Situ- ated to Advocate for Vulnerable LGBTQ Youth. For Georgia resident Michael Cabe, his first job after graduating from college was as an admissions counselor at his alma mater. His “supervisor told [him] that if [he] did not perform well, she would out [him] as a gay man to [his] family.” She also introduced him as the “gay counselor,” further dehumanizing him. Mi- chael “felt tokenized and marginalized” and could not “imagine how students might feel.” Amanda Lee, of Clarkston, Georgia, had a markedly different experience in the public secondary school where she works: Being able to go to work as my authentic self is crucial to my health and well[-]being. I can’t even articulate what it means to not have to constantly change pronouns for my spouse, remember who knows and who doesn’t, and fear losing my job daily. It is such a relief to not have to hide.

40 When Health Care Isn’t Caring: Lamda Legalis survey of Discrimination Against LGBT people and People Living with HIV, available at https://www.lambdalegal.org/sites/default/files/publications/ downloads/whcic-report_when-health-care-isnt-caring.pdf at 5.

As an out educator, I’m also able to advocate for inclusive policies and spaces which improve the well-being of our students, such as increasing our LGBTQ library collection. I show students what the future can hold for them just by living my life. Michael and Amanda’s contrasting experiences underscore the importance of increasing the visibility of LGBTQ adults working in academic settings and ensuring that those formative environments are safe and inclusive spaces for LGBTQ youth. “[Y]outh with same-sex attractions have, on average, poorer academic performance in high school compared to their other-sex attracted peers.”41 Students who experience same-sex sexual attraction in adolescence are less likely to graduate high school, enroll in college, and complete college than their peers.42 LGBTQ students are more likely to skip school – defined as being “absent without permission” – than their heterosexual peers.43 “Given the lasting consequences of the poorer high school performance for many sexual minority students, it is important to create schools that are safe and welcoming for all students.”44

41 Jennifer Pearson & Lindsey Wilkinson, Same-Sex Sexual- ity and Educational Attainment: The Pathway to College, 64 J. of Homosexuality. 42 Id. at 551. 43 Joseph P. Robinson & Dorothy L. Espelage, Inequities in Educational and Psychological Outcomes Between LGBTQ and Straight Students in Middle and High School, 40 Educational Re- searcher 315, 315 (2011). 44 Pearson & Wilkinson, supra note 41, at 567.

School being a safe and inclusive place for LGBTQ students is critical, as data establish that the challenges facing such youth follow them far beyond campus. Gay, lesbian, and bisexual youth are also more likely to experience emotional distress and engage in early substance use relative to their peers.45 Compared with heterosexual-identified youth, those “who identify as lesbian, gay, bisexual, transgender, or questioning . . . are at greater risk of suicidal thoughts, suicide attempts, [and] victimization by peers.”46 Further, schools being safe matters because, for LGBTQ students, home too often is not. “[F]amily rejection has a serious impact on LGBT young people’s physical health and behavior health, . . . and is often the cause of LGBT youth becoming homeless.”47 A study released in 2016 by the Family and Youth Ser- vices Bureau of the Department of Health and Human Services confirms that homeless youth are disproportionately LGBTQ; “one-third of street youth reported being lesbian, gay, or bisexual,” while “transgender homeless youth experience higher levels of victimization and non-acceptance, which leads to a relatively higher percentage of them experiencing chronic

45 Id. 46 Robinson & Espelage, supra note 43, at 315. 47 Admin. for Children and Families Family and Youth Ser- vices Bureau Street Outreach Program Data Collection Study Final Report (2016), available at https://www.acf.hhs.gov/sites/ default/files/fysb/data_collection_study_final_report_street_outreach_ program.pdf at 79.

homelessness and living on the streets.”48 And while homeless, all LGBTQ youth were more likely than not to experience victimization.49

III. DESPITE THE DISCRIMINATION THAT INDIVIDUAL LGBTQ PERSONS EXPERI- ENCE IN GEORGIA, A GROWING CON- SENSUS OVERWHELMINGLY SUPPORTS PROTECTING LGBTQ PERSONS FROM WORKPLACE DISCRIMINATION. Notwithstanding the experiences presented above, in Georgia, protecting LGBTQ people from employment discrimination is not controversial. Public opinion data, the business community’s steadfast support, and a swelling tide of workplace nondiscrimination protections from local governments all show that Georgians strongly favor guaranteeing the right to be free from employment discrimination.

A. Georgians Support Unambiguous Pro- tections for LGBTQ Employees. Protecting LGBTQ colleagues from workplace discrimination is not controversial in Georgia. In fact, support for workplace nondiscrimination protections extends across lines that might otherwise divide us. For example, in 2015, Georgians were asked whether

48 Id. 49 Id.

they supported protections against workplace discrim- inations on the basis of sexual orientation, among other things. “Roughly two-thirds (66%) of Georgia residents” supported workplace and other nondiscrimination protections for LGBTQ citizens.50 “Notably, majorities of all major demographic, religious, and political groups in Georgia favor nondiscrimination laws for LGBT[Q] people, though there are some differences in the intensity of support.”51 While the issue of marriage equality divided Georgians at the time, support for workplace protections was much more widespread. Georgians not only support protection from workplace discrimination on the basis of sexual orientation and transgender status, they overwhelmingly recognize that federal law already prohibits it. In a poll conducted in 2014, Georgians were asked “[t]o the best of your knowledge, is it LEGAL or NOT LEGAL under FEDERAL LAW to fire or refuse to hire someone because they are gay or transgender?”52 Seventy-seven percent of those polled responded that such discrimination was “[n]ot legal” under federal law.53 More than half – 64% – of respondents supported such workplace

50 A Profile of Georgia Residents’ Attitudes on LGBT Issues, https://prri.org/wp-content/uploads/2016/02/PRRI-AVA-Georgia- LGBT-Report.pdf at 1. 51 Id. 52 Polling data collected by the Shapiro Group of 400 registered Georgia voters fieldedbetween January 27, 2014 and Feb- ruary 6, 2014. 53 Id.

protections, but even more of them correctly understood that federal law guarantees those protections.54 Likewise, in a 2016 survey of likely Georgia voters asked whether it is “legal or illegal under Georgia state law to fire, refuse to hire, or deny housing or public accommodations access to someone because they are gay or transgender.”55 Seventy-four percent of respondents answered that such discrimination was illegal, and a virtually identical percentage supported state legislation protecting LGBTQ citizens.56 Today, even more Georgians understand the law to protect their LGBTQ colleagues and believe these protections should not be taken away from them. In a poll conducted from March 5, 2019 through March 7, 2019, pollsters asked randomly selected registered voters about LGBTQ workplace discrimination.57 Research- ers were assessing support for a proposed state law that would insulate private businesses from liability for discriminating against gay and transgender individuals “based upon the [business] owner’s personal belief.”58 Sixty-four percent of Georgians responded that they do not believe that a person should be able to refuse service to lesbian, gay, bisexual, and

54 Id. 55 PRS Georgia Survey conducted by Just Win Research of 600 Georgians fielded between October 16 and December 7, 2016. 56 Id. 57 Polling data collected by Mason-Dixon Polling & Strategy of 625 Georgia voters fielded between March 5 and March 7, 2019. 58 Id.

transgender individuals based on their personal religious beliefs.59 As with support for protections against employment discrimination, these responses cross political, age, racial, and geographic lines.60 Georgia is no outlier. Seven out of ten Americans support protecting LGBTQ individuals from discrimination at work.61 What this all means is that confirming that Title VII’s ban on employment discrimination because of sex encompasses discrimination against employees because they are LGBTQ – which a supermajority of Georgians believe to be the current state of the law – would be welcomed by most in the state and would not impose federal protections on a state whose residents, on the whole, do not want them.

B. Georgia’s Business Community Strongly Supports Protecting LGBTQ Citizens from Discrimination at Work and Else- where. Alongside the public at large, Georgia’s business community also supports consistent and secure laws prohibiting discrimination based on sexual orientation and transgender status. During the Civil Rights Era, Atlanta became known as the city “too busy to hate” in part due to the business community’s advocacy for the civil and human rights of African American

59 Id. 60 Id. 61 https://www.hrc.org/blog/major-national-survey-finds- majority-of-americans-in-every-state-oppose-lgbt.

citizens.62 Since that time, the “too busy to hate” ethos has expanded beyond Atlanta, and Georgia’s businesses have maintained their commitment to civil and human rights by supporting workplace protections for their LGBTQ neighbors. As it did in the Civil Rights Era, Georgia’s business community is leading the way in protecting the rights of LGBTQ employees. “Of the 18 Fortune 500 companies headquartered in Georgia, 17 [expressly] include sexual orientation in their non-discrimination policies, and 13 also [expressly] include gender identity.”63 In 2014, “[n]ine of Georgia’s largest ten private employers ha[d] non-discrimination policies that [expressly] include sexual orientation, and eight of those ten ha[d] policies that include both sexual orientation and gender identity.”64 Some of the state’s largest private employers have also thrown their weight behind the Equality Act,65 which would expressly enumerate – rather than cover only by well-reasoned precedent – Title VII’s coverage of sexual orientation and gender identity as well as expand protection against sex-based discrimination to

62 https://www.coca-colacompany.com/stories/the-night-atlanta- truly-became-the-city-too-busy-to-hate-. 63 Williams Institute, The Economic Impact of Stigma and Discrimination Against LGBT People in Georgia, Jan. 2017, at 33 (citations omitted). 64 Williams Institute, Employment Discrimination Based on Sexual Orientation and Gender Identity in Georgia, October 2014, at 7. 65 https://www.hrc.org/resources/business-coalition-for-equality.

public accommodations and other contexts.66 As with marriage equality, employers seek to clarify a legal landscape that has been complicated by conflicting state and local protections as well as federal court decisions. In addition, more than 500 businesses67 and other institutions, large and small, have signed the Georgia Prospers Business Coalition Pledge, which states: We believe that treating all Georgians and visitors fairly is essential to maintaining Georgia’s strong brand as the premier home for talented workers, growing businesses, en- trepreneurial innovation, and a thriving travel and tourism industry. We believe that in order for Georgia businesses to compete for top talent, we must have workplaces and communities that are diverse and welcoming for all people, no matter one’s race, sex, color, national origin, ethnicity, religion, age, disability, sexual orientation, or gender identity. As signers of the Georgia Prospers pledge, we are committed to promoting an attractive,

66 https://www.congress.gov/114/bills/hr3185/BILLS-114hr 3185ih.xml. 67 According to CNN, in 2016, “[a] total of 440 companies in the Fortune 500 ha[d] a presence in Georgia.”

prosperous, and economically vibrant Geor- gia. A united Georgia is a prosperous Geor- gia.68 Employees of these organizations reap the benefits of these protections. Rolando Guzman, of Norcross, Georgia, worked for one of Georgia’s Fortune 500 businesses. Rolando says, “Working for a company that embraces the LGBTQ community levels the field for employees. I was confident applying for promotions and negotiating salary increases because I knew my sexuality was not an impediment.” Now, as in the past, Georgia’s businesses know that diversity is good for business, and it is worth the fight.69 That is why they adopt nondiscrimination policies and why they push for uniform understanding of Title VII to prohibit sexual orientation and gender identity discrimination.

C. Local governments offer their own protections in increasing numbers. Finally, cities and counties across the state have passed their own nondiscrimination ordinances to

68 Georgia Prospers Pledge, available at https://www.georgia prospers.org/our-business-coalition/. 69 C.f., e.g., Obergefell Amicus Brief at 20 (“The value of diversity and inclusion in the workplace has been well-documented following rigorous analyses. Amici and others recognize that diversity is crucial to innovation and marketplace success.”); see also Williams Institute, The Economic Impact of Stigma and Dis- crimination against LGBT People in Georgia, January 2017.

protect LGBTQ citizens.70 At present, there are over fifty such ordinances in effect. These cities and counties recognize that discrimination against LGBTQ citizens can lead to poorer health outcomes, poverty, greater public expenditure, and larger scale negative economic impacts. However, cities and counties can only do so much, and relying on local law as a floor for workplace dignity leads to an even more dizzying and insecure patchwork of uncertain protections across the state and nation.71 For example, although some of Georgia’s cities have passed laws expressly prohibiting private employers from discriminating on the basis of sexual orientation or transgender status, most local nondiscrimination laws only apply to government entities – specifically, municipal or county government entities – and not to private employers.72 Some local laws do not provide a private cause of action, and most local governments do not have the resources of the EEOC to investigate, seek to conciliate, or file suit on complainants’ behalf. In addition, local law is not secure.73 Even in Georgia, where the public overwhelmingly supports legal protections

70 See Appendix A. 71 Williams Institute, supra note 69, at 13. “Several localities in Georgia have enacted local ordinances or personnel policies that prohibit discrimination based on sexual orientation and gender identity, creating a patchwork of legal protections for LGBT people in the state.” 72 Appendix A. 73 Id.

31 for LGBTQ citizens at work, nondiscrimination ordinances are vulnerable to state “preemption” laws, by which state legislatures seek to nullify local laws passed by cities or counties – usually passed by political minorities in the state. For that additional reason, ensuring that Title VII’s reach is as broad as possible is necessary to protect LGBTQ persons here in Georgia and elsewhere from workplace discrimination.

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CONCLUSION Title VII’s protections against sex-based workplace discrimination are critically important for LGBTQ persons, and this Court should unambigu- ously confirm the well-reasoned conclusions of numerous lower courts that discrimination based on sexual orientation or transgender status is discrimination “because of sex” and therefore unlawful. So holding would bring Georgia and this country one step closer to a society free of the heartbreaking injustices some LGBTQ Georgians have survived. Georgia’s citizenry, businesses, and governments overwhelmingly oppose sex-based discrimination in all forms, including discrimination against LGBTQ workers. This Court should embrace that principle too and should affirm

32 the judgments of the Second and Sixth Circuits and reverse the judgment of the Eleventh Circuit. Respectfully submitted,

EMMET J. BONDURANT [email protected] Counsel of Record JOHN H. RAINS IV [email protected] AMANDA KAY SEALS [email protected] BONDURANT MIXSON & ELMORE LLP 3900 One Atlantic Center 1201 West Peachtree Street NW Atlanta, GA 30309 Tel: (404) 881-4100 Counsel for Amicus Curiae Georgia Equality

Liberty & Justice in Georgia – Protecting Our Heritage & Growing Our Competitive Future –

Report commissioned by Georgia Unites Against Discrimination Authored by Gerald Weber and Zack Greenamyre Executive Summary by Joe Whitley

I. EXECUTIVE SUMMARY ...... 1 II. GEORGIA NEEDS ANTI-DISCRIMINATION LEGAL REFORM ...... 3 A. Employment ...... 4 B. Housing ...... 6 C. Public Accommodations and Healthcare ...... 7 III. ANTI-DISCRIMINATION LAWS FURTHER RELIGIOUS LIBERTY ...... 9 A. Religious Freedoms Have Never Been so Legally Protected ...... 9 B. Some Religious Exemptions Have Led to Unintended Consequences ...... 11 C. Commonsense Exemptions Can Protect Clergy and Places of Worship ...... 13 IV. THE ECONOMICS OF ANTI-DISCRIMINATION ARE BAD BUSINESS FOR GEORGIA ...... 14 A. Film ...... 16 B. Conventions and tourism ...... 16 C. Workforce attraction and retention ...... 17 D. Corporate vulnerability to boycotts ...... 18 E. Sports ...... 18 V. CONCLUSION AND RECOMMENDATIONS ...... 19

I. EXECUTIVE SUMMARY

Nondiscrimination protections – and the lack thereof – have played a growing role in Georgia’s political discourse over the last four years. This long-running debate seemingly culminated in March 2016 with the passage – and ultimate veto – of HB 757, a so-called “First Amendment Defense Act” that would have allowed businesses and some taxpayer-funded organizations to deny services to lesbian, gay, bisexual, and transgender (LGBT) people, if serving them conflicted with a deeply held religious belief. The economic uproar that followed the passage of HB 757 is well-known – voices ranging from the NFL, to the titans of the entertainment industry, to corporate giants all weighed in heavily against a bill that allowed for the legalization of discrimination against LGBT people. What’s less known is that, even absent troubling bills such as HB 757, Georgia residents are arguably some of the most vulnerable in the nation – lacking explicit protections from discrimination that are commonplace in many other states in the nation. For Georgia’s LGBT residents, these vulnerabilities are even more pronounced.

Georgia Lacks Basic Civil Rights Protections

Georgia is an unenviable outlier among states in that we have some of the weakest civil rights protections for our citizens in the nation. Georgia has no law that prevents private employers from discriminating on the basis of an employee’s race;1 no law that prevents local businesses from refusing service to patrons because of their religion;2 and no law preventing landowners from

1 State Laws on Employment-Related Discrimination, NAT’L CONFERENCE OF STATE LEGISLATURES, http://www.ncsl.org/research/labor-and-employment/discrimination-employment.aspx; see also State Employment-Related Discrimination Statutes, NAT’L CONFERENCE OF STATE LEGISLATURES (July 2015), http://www.ncsl.org/documents/employ/discrimination-chart-2015.pdf. 2 State Public Accommodation Laws, NAT’L CONFERENCE OF STATE LEGISLATURES, http://www.ncsl.org/research/civil-and-criminal-justice/state-public-accommodation-laws.aspx#1.

1 refusing to rent or sell to our citizens based on their sexual orientation or gender identity.3 Georgia is one of only three states that does not prohibit private employer discrimination on the basis of factors including race or religion.4 And the state is one of only five that allows racial and religious discrimination in businesses open to the public.5 This leaves the average Georgian significantly more susceptible to discrimination than the average United States citizen – and often, lacking explicit legal recourse when discrimination occurs. It’s clear that as Georgia continues to move forward into the 21st century and bolsters its reputation as a top-tier destination for those looking to earn a strong living and raise a family, the state must improve its anti-discrimination laws to provide commonsense protections.

LGBT Georgians Face Acute Risks

Some of the most vulnerable Georgians include those who are LGBT. In Georgia, a patchwork of uneven protections often leaves unclear recourse for those in the LGBT community who experience discrimination. And that discrimination does happen: according to surveys 45% of LGBT employees in our state have reported experiencing discrimination and harassment at the office during the preceding year.6 As one of only five states lacking legal public accommodations protections for residents 7 , LGBT people can find themselves with nowhere to turn if they experience discrimination in a public place – like a shopping mall, park, restaurant, or movie theater.

Economic Urgency for Anti-Discrimination Reform

There is an economic backlash that occurs when any government policy attempts to normalize or legalize discrimination: in North Carolina, the HB 2 law has cost the state nearly a billion dollars in lost revenue to date. In Georgia, the backlash to HB 757 prompted outcries from some of our state’s biggest industries – including the tourism sector. It’s no wonder tourism and convention bureaus are some of the most persuasive voices against discriminatory measures and in favor of comprehensive anti-discrimination protections. In Georgia, the Metro Atlanta Chamber and the Atlanta Convention and Visitors Bureau have estimated the fallout from the passage of a discriminatory bill would range from $1 to $2 billion.8 Statewide, the tourism industry brings in about $50 billion annually and is responsible for 400,000 jobs, representing a tenth of the state economy.9

3 See generally O.C.G.A. § 8-3-200, et seq. 4 State Employment-Related Discrimination Statutes, NAT’L CONFERENCE OF STATE LEGISLATURES (July 2015), http://www.ncsl.org/documents/employ/discrimination-chart-2015.pdf. 5 State Public Accommodation Laws, NAT’L CONFERENCE OF STATE LEGISLATURES, http://www.ncsl.org/research/civil-and-criminal-justice/state-public-accommodation-laws.aspx#1. 6 PHILLIP RUSH CENTER, GEORGIA STATEWIDE LGBT COMMUNITY SURVEY 11 (2013), http://www.rushcenteratl.org/wp-content/uploads/2013/07/Rush-Center-Survey-Results-with-Cover.pdf. 7 Paul Vincent Courtney, Prohibiting Sexual Orientation Discrimination In Public Accommodations: A Common Law Approach, 163 U. PA. L. REV. 1497, 1514 (2015). 8 Aaron Gould Sheinin & Kristina Torres, Studies Show Billions At Risk For Ga. In “Religious Liberty” Fight, ATLANTA J. CONST. (Nov. 19, 2015), http://www.myajc.com/news/news/state-regional-govt- politics/opponents-studies-show-big-risks-for-ga-in-religio/npRM5/. 9 Tom Cunningham, Potential Economic Consequences of RFRA-like Legislation, METRO ATLANTA CHAMBER (2016), available at http://macpolicy.com/wp-content/uploads/2015/12/RFRA-Cost-Memo.pdf.

2 The state’s burgeoning film industry also opposes further attempts to codify discrimination. The industry objected to HB 757 in 2016, and tends to support commonsense anti-discrimination measures. Georgia’s film industry – the third-largest in the nation behind only California and New York – brings in $7 billion a year and is responsible for over 80,000 jobs.10 Stopping discriminatory measures like HB 757 isn’t enough. The economic consequences are yet another – and an extremely powerful – reminder of why comprehensive anti-discrimination protections are needed in Georgia.

The Path Forward: Comprehensive Anti-Discrimination Protections

There is a clear gap between some of the basic civil rights protections citizens are afforded in Georgia versus other states. It’s time for Georgia lawmakers to address our state’s outdated protections, and expand them to include commonsense protections for all Georgians from discrimination in housing, employment, and public accommodations. Such a move would bring Georgia in-line with the vast majority of states across the nation. Such updates to existing laws also must include explicit anti-discrimination protections for LGBT Georgians. A number of states across the country already have adopted such measures, and there’s strong evidence that anti-discrimination protections – particularly as they pertain to LGBT people – are becoming an increasingly central consideration for businesses looking to invest or grow in certain states. Georgia will place itself at both a competitive and economic disadvantage until such updates can be made. It’s important to note that updating the state’s anti-discrimination measures to include LGBT people should not – and does not – conflict with religious freedom. The freedom of religion is vital to our nation, and it’s strongly protected within the First Amendment and within state law. Commonsense exemptions are regularly built into these types of measures so that religious leaders or places of worship are never forced to take actions that conflict with their faith. Freedom of religion and equality for all citizens under the law can and do co-exist – and it’s time for Georgia to embark on that discussion.

II. GEORGIA NEEDS ANTI-DISCRIMINATION LEGAL REFORM

Every citizen should have the right to choose where they live, eat, and work free from discrimination. Yet, discrimination regrettably remains. The problem is particularly acute in our state. Georgia is an exception in that it has virtually no state law protections for common forms of prejudice such as employment, housing, and public business discrimination. As examples, our state has no law that protects private employers from discriminating on the basis of an employee’s race;11 we have no law that prevents local businesses

10 Dave Williams, Film Industry Impact In Georgia Passes $7 Billion, Atlanta Bus. Chron. (Aug. 2, 2016), http://www.bizjournals.com/atlanta/news/2016/08/02/film-industry-impact-in-georgia-passes-7- billion.html. 11 State Laws on Employment-Related Discrimination, NAT’L CONFERENCE OF STATE LEGISLATURES, http://www.ncsl.org/research/labor-and-employment/discrimination-employment.aspx; see also State Employment-Related Discrimination Statutes, NAT’L CONFERENCE OF STATE LEGISLATURES (July 2015), http://www.ncsl.org/documents/employ/discrimination-chart-2015.pdf.

3 from refusing service to patrons because of their religion; 12 and we lack any law preventing landowners from refusing to rent or sell to our citizens based on their sexual orientation or gender identity.13 Fortunately there are some federal protections, but these laws are piecemeal and are not comprehensive. Virtually every other state has recognized that federal law alone is insufficient. These states have responded by enacting anti-discrimination laws that ban discrimination affecting fundamental rights. Georgia is one of only three states that permit private employer discrimination on the basis of factors such as race or religion.14 And Georgia is one of five states that allow racial and religious discrimination in businesses otherwise open to the public.15 Of special note is discrimination against LGBT persons. There are approximately 269,000 LGBT adults in Georgia, 16 comprising 3.5% of the population, and they are uniquely poorly protected from discrimination under Georgia law. According to one tally of laws affecting LGBT persons, Georgia is the single least protective state when it comes to offering legal security to its LGBT citizens.17 Georgia law, as it currently stands, does not prohibit government, business, and private citizens to discriminate with regard to these fundamental rights based on a person’s gender identity or sexual orientation. Federal law offers little, if any, relief.18 In other words, in Georgia, LGBT people may be fired from their job, denied housing, and refused service in all variety of public places based on who they are. Legislation can and should protect all Georgians from discrimination that threatens their ability to live in our state.

A. Employment In Georgia, discrimination against LGBT persons in finding and keeping a job is often not illegal.19 The state non-discrimination law, the Fair Employment Practices Act, extends only to state

12 State Public Accommodation Laws, NAT’L CONFERENCE OF STATE LEGISLATURES, http://www.ncsl.org/research/civil-and-criminal-justice/state-public-accommodation-laws.aspx#1. 13 See generally O.C.G.A. § 8-3-200, et seq. 14 State Employment-Related Discrimination Statutes, NAT’L CONFERENCE OF STATE LEGISLATURES (July 2015), http://www.ncsl.org/documents/employ/discrimination-chart-2015.pdf. 15 State Public Accommodation Laws, NAT’L CONFERENCE OF STATE LEGISLATURES, http://www.ncsl.org/research/civil-and-criminal-justice/state-public-accommodation-laws.aspx#1. 16 Gary J. Gates & Frank Newport, LGBT Percentage Highest in D.C., Lowest in North Dakota, GALLUP, Feb. 15, 2013, http://www.gallup.com/poll/160517/lgbt-percentage-highest-lowest-north-dakota.aspx; CHRISTY MALLORY & BRAD SEARS, EMPLOYMENT DISCRIMINATION BASED ON SEXUAL ORIENTATION AND GENDER IDENTITY IN GEORGIA, WILLIAMS INST. AT UNIV. OF CAL. SCH. OF LAW 1 (2016), available at http://williamsinstitute.law.ucla.edu/wp-content/uploads/GeorgiaNDReport-October-2014.pdf. 17 Equality Maps, MOVEMENT ADVANCEMENT PROJECT, http://www.lgbtmap.org/equalitymaps/legal_equality_by_state (“The major categories of laws covered by the policy tally include: Marriage and Relationship Recognition, Adoption and Parenting, Non-Discrimination, Safe Schools, Health and Safety, and Ability for Transgender People to Correct the Name and Gender Marker on Identity Documents.”). 18 See Part II.A. infra and note 19. 19 The federal Equal Employment Opportunity Commission recently concluded that “an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII.” Baldwin v. Foxx, EEOC Appeal No. 0120133080, 2015 WL 4397641, *5 (July 15, 2015). But this view has not been clearly endorsed by the courts. Within the Eleventh Circuit that governs Georgia, Alabama, and Florida, the question is an open one with some courts rejecting the EEOC’s stance and others adopting it. Compare Evans v. Georgia Regional Hosp., No. CV415–103, 2015 WL 5316695, at *3 (S.D. Ga. Sept. 10, 2015) (“[I]t is simply not unlawful under Title VII to discriminate against homosexuals or based on sexual orientation.”),

4 employees and does not cover sexual orientation or gender identity.20 And while federal law covers religion, race, nationality, and sex-based discrimination, it does not explicitly cover LGBT persons,21 and it does not cover smaller businesses in any way.22 Because of this legal gap, discrimination against Georgia’s LGBT workers is not uncommon. In Georgia, 25% of LGBT workers reported having been discriminated against in employment and 45% have reported experiencing discrimination and other harassment at the office in the preceding year. 23 The experience of Georgia’s LGBT workforce appears similar to national trends where roughly one-in-five LGBT persons report being treated unfairly by an employer in hiring, pay, or promotion.24 Wage inequity is also a serious concern, with a range of studies finding disparities ranging from 10% to 30% between heterosexual and homosexual workers.25 Among the transgender population, these figures are more dire. According to surveys conducted nationally and in Georgia, more than three-quarters of transgender persons have experienced harassment at work, and over a third have lost a job due to their gender identity.26 Expanding Georgia’s civil rights protections to cover the employment of LGBT persons would not affect Georgia’s status as a “right-to-work” state.27 Georgia has several anti-discrimination laws covering age, disability, and religion, which are separate from and unaffected by its right-to- work laws. A number of states, including Iowa, Nevada, Utah, and Wisconsin, have right-to-work laws similar to Georgia’s as well as employment laws prohibiting discrimination based on sexual orientation and gender identity.

with Isaacs v. Felder Servs., LLC, 143 F.Supp.3d 1190 (M.D. Ala. 2015) (“This court agrees . . . with the view of the Equal Employment Opportunity Commission that claims of sexual orientation -based discrimination are cognizable under Title VII.”). See also generally Examples of Court Decisions Supporting Coverage of LGBT-Related Discrimination Under Title VII, EEOC, https://www.eeoc.gov/eeoc/newsroom/wysk/lgbt_examples_decisions.cfm (collecting cases). 20 O.C.G.A. § 45-19-22; CHRISTY MALLORY & BRAD SEARS, EMPLOYMENT DISCRIMINATION BASED ON SEXUAL ORIENTATION AND GENDER IDENTITY IN GEORGIA, WILLIAMS INST. AT UNIV. OF CAL. SCH. OF LAW 1 (2016), available at http://williamsinstitute.law.ucla.edu/wp-content/uploads/GeorgiaNDReport- October-2014.pdf. 21 Federal Laws Prohibiting Job Discrimination Questions And Answers, U.S. Equal Employment Opportunity Commission, https://www.eeoc.gov/facts/qanda.html. 22 Coverage, EEOC, https://www.eeoc.gov/employers/coverage.cfm. 23 PHILLIP RUSH CENTER, GEORGIA STATEWIDE LGBT COMMUNITY SURVEY 11 (2013), http://www.rushcenteratl.org/wp-content/uploads/2013/07/Rush-Center-Survey-Results-with-Cover.pdf. 24 A Survey of LGBT Americans: Attitudes, Experiences and Values in Changing Times, PEW RESEARCH CTR. (June 13, 2013), http://www.pewsocialtrends.org/2013/06/13/a-survey-of-lgbt-americans/. 25 CHRISTY MALLORY & BRAD SEARS, EMPLOYMENT DISCRIMINATION BASED ON SEXUAL ORIENTATION AND GENDER IDENTITY IN GEORGIA, WILLIAMS INST. AT UNIV. OF CAL. SCH. OF LAW 4–5 (2016). 26 FINDINGS OF THE NATIONAL TRANSGENDER DISCRIMINATION SURVEY – GEORGIA RESULTS, NATIONAL CENTER FOR TRANSGENDER EQUALITY & NATIONAL GAY AND LESBIAN TASK FORCE 1 (2013), http://www.thetaskforce.org/downloads/reports/reports/ntds_state/ntds_state_ga.pdf; JAMIE M. GRANT, LISA A. MOTTET, JUSTIN TANIS, JACK HARRISON, JODY L. HERMAN, & MARA KEISLING, INJUSTICE AT EVERY TURN: A REPORT OF THE NATIONAL TRANSGENDER DISCRIMINATION SURVEY 51 (2011), available at http://www.thetaskforce.org/downloads/reports/reports/ntds_full.pdf. 27 Right-to-work laws refer to state laws designed to protect employees’ rights to work without affiliating or contributing financially to unions. Georgia’s right-to-work laws are codified at O.C.G.A. § 34-6-6 et seq.

5 B. Housing Neither federal nor Georgia law offers protections for LGBT people looking to buy or rent housing. The Fair Housing Act (Title VIII of the Civil Rights Act of 1968) and similar Georgia laws prohibit discrimination in the sale, rental, and financing of housing based on race, color, religion, national origin, sex, family status, and disability. But gender identity and sexual orientation are not protected classes.28 Due to this legal oversight, LGBT Georgians face obstacles and uncertainty when it comes to putting a roof over their heads. These impediments range from additional economic burdens to the persistent threat of being unable to secure or maintain housing based solely on their status as LGBT Georgians. Notwithstanding the United States Supreme Court’s 2015 decision legalizing same-sex marriage,29 LGBT Georgians likely still face tax, financing, and insurance consequences when buying, transferring, and insuring their homes.30 These policies, which treat partners as if they were legal strangers, may add expense and uncertainty to LGBT wallets. More fundamentally, LGBT people frequently struggle to find landlords willing to accept their money. A national study found that same-sex couples had a more difficult time leasing housing compared with similarly situated different-sex couples.31 Another study from Michigan found that same-sex couples experienced discrimination in 27% of their attempts to secure housing through rental, sales, or financing.32 Elderly gay and lesbian individuals also face housing discrimination, with one study finding at least one adverse differential treatment in half of all efforts to secure senior housing when compared to similarly situated heterosexual seniors.33 Most indicators point to a greater risk of housing discrimination and more serious consequences for transgender people: 11 percent of transgender persons report having been evicted from their housing because of their gender identity, and a larger proportion report having been refused housing.34 Homelessness is also a significant problem within the transgender population with one-fifth of respondents experiencing homelessness at some point arguably based on their gender identity. And upon losing their housing, transgender people face unique and grievous risks such as

28 Housing for LGBTQ People: What You Need to Know About Property Ownership and Discrimination, HUMAN RIGHTS CAMPAIGN, http://www.hrc.org/resources/housing-for-lgbt-people-what-you-need-to-know-about- property-ownership-and. 29 Obergefell v. Hodges, 135 S. Ct. 2584 (2015). 30 Housing for LGBTQ People: What You Need to Know About Property Ownership and Discrimination, HUMAN RIGHTS CAMPAIGN, http://www.hrc.org/resources/housing-for-lgbt-people-what-you-need-to-know-about- property-ownership-and (highlighting common issues in deed transfer taxes, estate taxes, insurance policy payouts, etc.). 31 An Estimate of Housing Discrimination Against Same-Sex Couples, OFFICE OF POLICY DEVELOPMENT AND RESEARCH (U. S. Department of Housing and Urban Development, 2013), available at http://www.huduser.org/portal//publications/pdf/Hsg_Disc_against_SameSexCpls_v3.pdf. 32 FAIR HOUSING CENTER OF METROPOLITAN DETROIT ET AL., SEXUAL ORIENTATION AND HOUSING DISCRIMINATION IN MICHIGAN (2007), available at http://www.fhcmichigan.org/images/Arcus_web1.pdf. 33 OPENING DOORS: AN INVESTIGATION OF BARRIERS TO SENIOR HOUSING FOR SAME-SEX COUPLES, THE EQUAL RIGHTS CTR. (2014), http://www.equalrightscenter.org/site/DocServer/Senior_Housing_Report.pdf?docID=2361. 34 Jaime M. Grant, Lisa A. Mottet, & Justin Tanis, Injustice at Every Turn: A Report of the National Transgender Discrimination Survey, CENTER FOR TRANSGENDER EQUALITY AND NATIONAL GAY AND LESBIAN TASK FORCE 4 (2011), available at http://www.thetaskforce.org/static_html/downloads/reports/reports/ntds_full.pdf.

6 being denied access to shelters, facing high incidence of sexual assault within shelters, and being mistreated by police and places of public accommodation.35

C. Public Accommodations and Healthcare Georgia is one of just five states without any legal public accommodations protections.36 And while federal law protects Georgians from discrimination based on race, color, religion, or national origin in hotels, restaurants, and public arenas affecting interstate commerce, discrimination in other spheres is not prohibited. LGBT persons by virtue of their status are offered no protections at all. This means that, for example, Georgia hospitals or bakeries can discriminate on the basis of race or religion. Likewise, Georgia hotels, hospitals, restaurants, and businesses can refuse service to, or otherwise harass, LGBT persons with no legal consequences. Nationally, discrimination against LGBT persons is prevalent. According to one study, 53% of transgender individuals have experienced discrimination in public accommodations, with 40% reporting harassment, 15% being denied services entirely, and 3% being assaulted for attempting to purchase goods or services.37 In healthcare, discrimination against LGBT persons appears to be particularly acute and inexcusable. As but one example, in Michigan a pediatrician declined to treat a newborn baby because that infant was the child of a lesbian couple.38 Eight percent of gay and lesbian people and 27% of transgender people reported this kind of outright refusal of medical care, in addition to reports of other common forms of harassment and abuse.39

* * *

The lack of anti-discrimination legislation protecting LGBT persons in Georgia stands in stark contrast to public opinion. Recent surveys show overwhelming support for anti-discrimination legislation as it regards these fundamental daily activities. In one survey, 79% of respondents in Georgia said that it should be impermissible for Georgia employers to discriminate against their employees based on sexual orientation or gender identity.40 In a national study, over 7-in-10 support broad anti-discrimination protections for LGBT persons in jobs, housing, and public

35 Jaime M. Grant, Lisa A. Mottet, & Justin Tanis, Injustice at Every Turn: A Report of the National Transgender Discrimination Survey, CENTER FOR TRANSGENDER EQUALITY AND NATIONAL GAY AND LESBIAN TASK FORCE 4 (2011), available at http://www.thetaskforce.org/static_html/downloads/reports/reports/ntds_full.pdf. 36 Paul Vincent Courtney, Prohibiting Sexual Orientation Discrimination In Public Accommodations: A Common Law Approach, 163 U. PA. L. REV. 1497, 1514 (2015). 37 Jaime M. Grant, Lisa A. Mottet, & Justin Tanis, Injustice at Every Turn: A Report of the National Transgender Discrimination Survey, CENTER FOR TRANSGENDER EQUALITY AND NATIONAL GAY AND LESBIAN TASK FORCE 5 (2011), available at http://www.thetaskforce.org/static_html/downloads/reports/reports/ntds_full.pdf. 38 Tresa Baldas, Peditrician Wouldn’t Care for Baby with 2 Moms, DETROIT FREE PRESS (Feb. 19, 2015), http://www.freep.com/story/news/local/michigan/macomb/2015/02/18/discrimination-birth/23640315/. 39 WHEN HEALTH CARE ISN’T CARING: LAMBDA LEGAL’S SURVEY ON DISCRIMINATION AGAINST LGBT PEOPLE AND PEOPLE LIVING WITH HIV, LAMBDA LEGAL 10 (2010), available at https://www.lambdalegal.org/sites/default/files/publications/downloads/whcic-report_when-health-care-isnt-caring.pdf. 40 CHRISTY MALLORY & BRAD SEARS, EMPLOYMENT DISCRIMINATION BASED ON SEXUAL ORIENTATION AND GENDER IDENTITY IN GEORGIA, WILLIAMS INST. AT UNIV. OF CAL. SCH. OF LAW 7 (2016), available at http://williamsinstitute.law.ucla.edu/wp-content/uploads/GeorgiaNDReport-October-2014.pdf.

7 accommodations.41 Even among Americans who oppose same-sex marriage, more respondents support than oppose broad anti-discrimination laws.42 Allowing formal avenues for LGBT people to complain of discrimination in employment, housing, and public accommodations would likely reduce incidents of discrimination. And yet, it does not appear that providing a means to investigate those complaints would place any significant cost burden on the state.43 The over twenty states that have enacted laws protecting LGBT citizens have seen no significant uptick in litigation or other costs as a result of enforcing these laws.44 Currently, the Georgia Commission on Equal Opportunity, the agency tasked with enforcing the Fair Employment Practices Act and fair housing complaints, addresses between 100 and 200 complaints each year.45 Research indicates that LGBT people file complaints with state enforcement agencies at roughly the same rate as those who complain of racial or sex-based discrimination. Nationally, these rates range from 1 to 4 complaints per 100,000 protected individuals per year,46 translating to approximately 10 complaints per year if the Georgia Commission on Equal Opportunity were to investigate claims of discrimination by LGBT persons in the state.47

41 Betsy Cooper et al., Beyond Same-sex Marriage: Attitudes on LGBT Nondiscrimination Laws and Religious Exemptions from the 2015 American Values Atlas, PUBLIC RELIGION RESEARCH INST. (Feb. 18, 2016), available at http://www.prri.org/research/beyond-same-sex-marriage-attitudes-on-lgbt-nondiscrimination-and-religious- exemptions-from-the-2015-american-values-atlas/. 42 Betsy Cooper et al., Beyond Same-sex Marriage: Attitudes on LGBT Nondiscrimination Laws and Religious Exemptions from the 2015 American Values Atlas, PUBLIC RELIGION RESEARCH INST. (Feb. 18, 2016), available at http://www.prri.org/research/beyond-same-sex-marriage-attitudes-on-lgbt-nondiscrimination-and-religious- exemptions-from-the-2015-american-values-atlas/. 43 CHRISTY MALLORY & BRAD SEARS, EMPLOYMENT DISCRIMINATION BASED ON SEXUAL ORIENTATION AND GENDER IDENTITY IN GEORGIA, WILLIAMS INST. AT UNIV. OF CAL. SCH. OF LAW 8–9 (2016), available at http://williamsinstitute.law.ucla.edu/wp-content/uploads/GeorgiaNDReport-October-2014.pdf. 44 CHRISTY MALLORY & BRAD SEARS, EMPLOYMENT DISCRIMINATION BASED ON SEXUAL ORIENTATION AND GENDER IDENTITY IN GEORGIA, WILLIAMS INST. AT UNIV. OF CAL. SCH. OF LAW 8–9 (2016), available at http://williamsinstitute.law.ucla.edu/wp-content/uploads/GeorgiaNDReport-October-2014.pdf. 45 CHRISTY MALLORY & BRAD SEARS, EMPLOYMENT DISCRIMINATION BASED ON SEXUAL ORIENTATION AND GENDER IDENTITY IN GEORGIA, WILLIAMS INST. AT UNIV. OF CAL. SCH. OF LAW 1 (2016), available at http://williamsinstitute.law.ucla.edu/wp-content/uploads/GeorgiaNDReport-October-2014.pdf. 46 CHRISTY MALLORY & BRAD SEARS, EVIDENCE OF DISCRIMINATION IN PUBLIC ACCOMMODATIONS BASED ON SEXUAL ORIENTATION AND GENDER IDENTITY: AN ANALYSIS OF COMPLAINTS FILED WITH STATE ENFORCEMENT AGENCIES, 2008–2014, WILLIAMS INST. AT UNIV. OF CAL. SCH. OF LAW 8 (2016), available at http://williamsinstitute.law.ucla.edu/wp-content/uploads/Public-Accommodations- Discrimination-Complaints-2008-2014.pdf. 47 One study put the number of projected additional complaints at only two per year. CHRISTY MALLORY & BRAD SEARS, EMPLOYMENT DISCRIMINATION BASED ON SEXUAL ORIENTATION AND GENDER IDENTITY IN GEORGIA, WILLIAMS INST. AT UNIV. OF CAL. SCH. OF LAW 2 (2016), available at http://williamsinstitute.law.ucla.edu/wp-content/uploads/GeorgiaNDReport-October-2014.pdf. (“Adding sexual orientation and gender identity to the state’s current law prohibiting discrimination in state government employment would result in approximately two additional complaints being filed with the Georgia Commission on Equal Opportunity each year.”)

8 III. ANTI-DISCRIMINATION LAWS FURTHER RELIGIOUS LIBERTY

Freedom of religion is one of our most fundamental and cherished rights. It’s the reason our nation was founded and one of the values that makes us who we are. This freedom is enshrined in our federal Constitution, our state Constitution, and throughout the laws of the land. Freedom to exercise our religious beliefs is one of the core liberties that allow each and every American to live their lives to the fullest and advance the common good. In simple terms, it’s not up for debate. In recent years, anti-discrimination policies protecting LGBT persons and religious liberty have from time to time been pitted against each other. Some of this conflict is inherent to life in a diverse multi-religious society: each person’s freedom to practice their religion how they see fit will be limited in some ways by other people’s rights to live a life that they see fit. For this reason, the citizen who sincerely believes that adultery is a sin punishable by death will have no defense to a charge of homicide should he act on that belief.48 Likewise, although some saw the integration of our public schools last century as an offense to “the Lord’s will,”49 black students’ rights to an equal education proved more essential than those religious convictions. These balancing acts can be difficult but at bottom are applications of the simple legal truism: “Your right to swing your arms ends just where the other man’s nose begins.”50 Or, as the Georgia Constitution puts it: “freedom of religion shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace and safety of the state.”51 Yet much of this recent tension between LGBT liberty and religious freedom is also artificially concocted. Religious freedom in America has never been protected as expansively as it is now. But while LGBT persons have gained some important rights in recent years, the fact remains that they are one of the least well-protected minority groups. Put another way, no pastor has ever been forced to perform a same-sex marriage ceremony in their place of worship against their will,52 but LGBT persons are fired from jobs and denied access to the housing market for exercising fundamental and constitutionally protected rights. In the final analysis, LGBT rights and religious rights need not be in opposition: strong protections for the rights of everyone further equality and liberty for all Americans.

A. Religious Freedoms Have Never Been so Legally Protected The current landscape of law affecting religious exercise has never been as protective of religious liberty as it is now.53

48 Mary Latham Marries an Older Man – And Regrets It, NEW ENGLAND HIST. SOC., http://www.newenglandhistoricalsociety.com/mary-latham-marries-and-older-man-and-regrets-it/ (describing “the only known execution in America for adultery.”). 49 Max Blumenthal, Agent of Intolerance, NATION (May 28, 2007), https://www.thenation.com/article/agent- intolerance/. 50 Zechariah Chafee, Freedom of Speech in War Time, 32 HARV. L. REV. 932, 957 (1919). 51 GA. CONST. Art. I, § I, ¶ IV. 52 Travis Weber, Can Pastors and Churches Be Forced to Perform Same-Sex Marriages?, FAMILY RESEARCH COUNSEL, http://www.frc.org/clergyprotected (answering question posed by title with a clear “no”); see also David Mikkelson, Coercion d'Alene, SNOPES.COM (July 7, 2015), http://www.snopes.com/politics/religion/hitchingpost.asp (debunking rumor that a local business known as the “Hitching Post” would be compelled to perform same-sex marriages). 53 See generally MARCI A. HAMILTON, GOD VS. THE GAVEL: RELIGION AND THE RULE OF LAW (2005); THE RISE OF CORPORATE RELIGIOUS LIBERTY (Micah Schwartzman et al. eds, 2016).

9 For example, in 2012 the Supreme Court (by a 9-0 count) held that the First Amendment prohibits suits by clergy against their churches for claims alleging employment discrimination, meaning that it is impermissible for government to contradict a church’s determination as to who can act as its leadership.54 Places of worship enjoy autonomy over all decisions concerning doctrine, policy, selection of religious leaders, and regulation of congregation membership—regardless of government efforts to intervene.55 Any law that targets a religious group is subject to “strict scrutiny”—the Constitution’s most searching standard of review—under which laws almost invariably fall.56 In other words, government “may not devise mechanisms, overt or disguised, designed to persecute or oppress a religion or its practices.”57 Similarly, religious persons have broad free speech rights, especially in the context of homosexuality. They are free to condemn the practice in public and in private, as individuals or as leaders of their congregation. The Supreme Court has made clear that private religious parade organizers cannot be forced to include pro-LGBT messages in their public events because to do so would violate their First Amendment rights.58 Furthermore, places of worship are free to associate—or not associate—with people as they see fit, meaning that they have wide latitude to exclude.59 Additionally, the federal Religious Freedom Restoration Act (“RFRA”) provides that federal government cannot substantially burden religious exercise, even via a generally applicable law, unless the government can show it is furthering a compelling government interest through the least restrictive means.60 The Georgia Constitution also protects religious liberty through the Georgia Bill of Rights in a way that is at least as protective as federal law.61 Similarly, there are additional laws, such as the Religious Land Use and Institutionalized Persons Act (“RLUIPA”)62 and the Equal Access Act,63 which offer overlapping protections for religious exercise in certain spheres like zoning, prisons, and schools. This is not to say that the existence of these types of laws makes all forms of discrimination go away. Just as the passage of civil rights era laws has not cured all private racial discrimination in this country, so too are legal protections for religious exercise unable to influence all private hearts and minds at all times. And importantly, Georgia law does not protect against religious discrimination in small business employment or public accommodations. But because of these other legal protections, intolerant persons are deterred from acting on their prejudices and people denied religious liberty have legal recourse. For these reasons, it is not clear what, if any, religiously oppressive behavior would be remedied by any additional legal protections such as a state version of the RFRA.

54 Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 132 S. Ct. 694 (2012). 55 Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church, 344 U.S. 94 (1952); Watson v. Jones, 80 U.S. 679 (1871). 56 Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 533 (1993). 57 Id. at 547. 58 Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, 515 U.S. 557, 573-81 (1995). 59 Boy Scouts of America v. Dale, 530 U.S. 640, 648, 656 (2000). 60 42 U.S.C. § 2000bb-1. 61 Grady v. Unified Govt. of Athens–Clarke County, 289 Ga. 726, 728–731, 715 S.E.2d 148 (2011) (explaining that the rights protections of the Georgia Constitution are “greater” than in the federal Constitution’s First Amendment). 62 42 U.S.C. §§ 2000cc, et seq. 63 20 U.S.C. § 4071(a).

10 Proponents of a Georgia RFRA identified various instances of religious intolerance in the state that they argued proved the necessity of further legislation aimed at protecting religious freedoms. For example, the law firm of Maner Crumly Chambliss LLP published a memorandum identifying 22 instances of religious intolerance in Georgia.64 Yet in each of the incidents cited, existing law would have given the religiously oppressed persons the same protections as a state RFRA. In none of the cases cited would the result have changed had a RFRA been in place. As but one illustration, the leading example of religious intolerance in Georgia, taken verbatim from the memorandum prepared by Maner Crumly Chambliss LLP, is reproduced below:

1. Restrictions on Free Speech at Georgia Institute of Technology. Georgia Tech had various speech code policies, which applied to students and student organizations and limited their ability to express views on topics that the Institute deemed “intolerant.” Georgia Tech also limited the locations on its huge campus where students could engage in free speech to certain tiny “speech zones” and refused to give student activity funds to student organizations that engaged in “religious activities.”65

The reality is that this conduct on the part of the Georgia Institute of Technology was not legal. The students and student groups who were affected filed suit in 2006 as a result.66 And because their religious practice and advocacy was within their First Amendment rights, they prevailed.67 Indeed, the legal standard, strict scrutiny, was identical under the First Amendment as it would have been under a state RFRA. In each of the cases identified in the Maner Crumly Chambliss memorandum, the result would be the same regardless of a state RFRA. B. Some Religious Exemptions Have Led to Unintended Consequences Even as a state RFRA would be unlikely to remedy any existent religious discrimination, a state RFRA, or similar legislation such as 2016’s vetoed First Amendment Defense Act (“FADA”),68 would present significant unintended consequences. Not only would such legislation be perceived as facilitating LGBT intolerance, leading to economic consequences; if any legislation were written broadly enough so as to exempt government actors or private businesses from complying with any duties or laws which offend their religious beliefs, significant uncertainty and insecurity would be injected into a wide range of government and business transactions. This uncertainty would pose a significant cost on government and private citizens—especially in the form of litigation expenses. The federal experience is illustrative: under the federal RFRA, a religion known as the “União do Vegetal” or the Union of the Plants, was allowed to import and use substances regulated under Schedule I of the Controlled Substances Act and international treaty.69 In another case, a

64 Recent Examples in Georgia of Religious Discrimination, MANER CRUMLY CHAMBLISS LLP, available at http://concernedwomen.org/wp-content/uploads/2015/01/Georgia-Religious-Liberty-Cases-2015.pdf. 65 Recent Examples in Georgia of Religious Discrimination, MANER CRUMLY CHAMBLISS LLP, available at http://concernedwomen.org/wp-content/uploads/2015/01/Georgia-Religious-Liberty-Cases-2015.pdf. 66 Sklar v. Clough, No. 06-cv-0627, Complaint (N.D. Ga. Mar. 16, 2006), available at http://adfwebadmin.com/resources/files/svc%20complaint.pdf. 67 Sklar v. Clough, No. 06-cv-0627, 2008 WL 5381961 (N.D. Ga. Dec. 23, 2008) (awarding attorneys’ fees to plaintiffs as prevailing parties). 68 See generally Part IV., infra. 69 Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006).

11 Muslim prisoner was granted exemptions from generally applicable security rules so that he could grow a beard.70 These two recent Supreme Court cases are not held up as examples of inappropriate decisions—indeed people from diverse political persuasions have applauded these rulings, but these cases are harbingers of litigation to come. Other recent litigants have sought—and been granted— more fundamental exemptions from the law: • a person accused of using child labor to harvest pecans successfully invoked RFRA to refuse to honor a federal subpoena to testify;71 • churches have sought exemptions from tort law for liability in cases where leaders sexually abused children;72 • sex abuse defendants have claimed RFRA as a shield to their prosecution;73 • in Indiana, the founder of the new First Church of Cannabis bragged that “I created the fastest-growing religion in America last week” in response to that state’s RFRA;74 • in Vermont, a father who failed to pay child support because he argued that working would offend his religious beliefs successfully invoked a state RFRA to void a criminal contempt order that was not the “least restrictive means” of law enforcement;75 • a deportation action was challenged on the ground that the deportee couple could not have a “qualifying relative” in the United States because they could not have a child and would not have in vitro fertilization due to their beliefs;76 • a Texas man who pleaded no contest to sexual assault of a child invoked the Texas RFRA to argue that the law required extra scrutiny for search warrants issued to places of worship;77 • and a federal district court held that the Milwaukee Archdiocese, seeking to avoid paying tens of millions of dollars to victims of sexual abuse, could successfully claim an exemption from bankruptcy law regarding fraudulent transfers under RFRA.78

These examples show that the reach of RFRA laws is sweeping and their application unpredictable. Even when RFRA legislation has been invoked unsuccessfully, government is faced with real

70 Holt v. Hobbs, 135 S. Ct. 853 (2015). 71 Perez v. Paragon Contractors, Corp., No. 2:13CV00281–DS, 2014 WL 4628572 (D. Utah Sept. 11, 2014); see also Kara Loewentheil, Code of Silence: RFRA Protects Religious Refusal To Testify, PUBLIC RIGHTS PRIVATE CONSCIENCE PROJECT (Sept. 17, 2014), http://blogs.law.columbia.edu/publicrightsprivateconscience/2014/09/17/code-of-silence-rfra-protects- religious-refusal-to-testify/. 72 See generally Marci A. Hamilton, The “Licentiousness” in Religious Organizations and Why it is Not Protected under Religious Liberty Constitutional Provisions, 18 WM. & MARY BILL OF RTS. J. 953 (2010); see also Brief Amicus Curiae of the Church of Jesus Christ of Latter-Day Saints, Ramani v. Segelstein, No. 49341 (Nev. Oct. 5, 2009); Joinder of the Roman Catholic Bishop of Las Vegas and of the Roman Catholic Bishop of Reno, Ramani v. Segelstein, No. 49341 (Nev. Oct. 12, 2009). 73 See, e.g., State v. Bent, 328 P.3d 677 (N.M. Ct. App. 2013). 74 Steven Nelson, Indiana’s Church of Cannabis Growing Like a Weed, U.S. NEWS & WORLD REPORT (Apr. 2, 2015), http://www.usnews.com/news/articles/2015/04/02/indianas-church-of-cannabis-growing-like-a- weed. 75 Hunt v. Hunt, 642 A.2d 843, 853–54 (Vt. 1994). 76 Fernandez v. Mukasey, 520 F.3d 965 (9th Cir. 2008). 77 Jeffs v. State, No. 03–10–00272–CR, 2012 WL 601846 (Tex. Crim. App. Feb. 24, 2012). 78 In re Archdiocese of Milwaukee, 496 B.R. 905 (E.D. Wisc. July 29, 2013), overruled on other grounds Listecki v. Official Comm. of Unsecured Creditors, 780 F.3d 731 (7th Cir. 2015).

12 uncertainty as to the administration of its neutrally applicable laws and is forced to expend significant resources in litigation. The number of unexpected victories thus far will no doubt inspire more audacious future challenges to our generally applicable laws.

C. Commonsense Exemptions Can Protect Clergy and Places of Worship While a state RFRA would likely produce a range of significant unintended consequences, a more carefully tailored religious exemption would protect people of faith in Georgia in important new ways without undermining the rule of law. Virtually every state non-discrimination law has some form of exemption such that places of worship and the people who lead those organizations have freedom to practice their faith how they see fit. Exemptions under state law are generally broader than those provided by the federal civil rights acts.79 These exemptions permit churches and their members to engage in conduct that would otherwise be classified as illegal discrimination without fear of legal reprisal. Some of these protections are constitutionally guaranteed,80 however, in most instances, the state law religious exemptions are explicit and broader than the Constitution requires.81 In fact, of the twenty-two states to have barred discrimination on the basis of sexual orientation or gender identity, all twenty-two laws contain discrimination exemptions for places of worship.82 Georgia law currently provides no such protections or exemptions. Reasonable minds can disagree as to the proper shape and size of any religious exemption from generally applicable anti-discrimination laws, but all would agree that religious organizations need some protections. The baseline of legal security for religious persons is set by the First Amendment to the United States Constitution. The Supreme Court has held that the Free Exercise Clause contains a “ministerial exception” to generally applicable civil rights laws, such that choices as to whom “will minister to the faithful” are “strictly ecclesiastical” and “the church’s alone.”83

* * *

Although some legal and economic effects of enacting a state RFRA or FADA in Georgia are uncertain, at least one consequence of passing this kind of law is definite: people will use such a law to justify discrimination. Indeed, Georgia Senator Greg Kirk admitted when questioned last year that the Ku Klux Klan would qualify as a faith based group eligible for protection under HB 757, claiming that “I don’t know what would stop them” from invoking the failed measure to discriminate.84

79 Compare 42 U.S.C.A. § 2000e-1 (providing exemption from federal employment discrimination law for “a religious corporation” only “with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation . . . of its activities.”), with Cal. Gov’t Code § 12926(d) (exempting entirely religious corporations as not being an “employer” covered by the law). 80 See, e.g., Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 132 S. Ct. 694 (2012). 81 See, e.g., 42 U.S.C.A. § 2000e-1; Cal. Gov’t Code § 12926(d). 82 JEROME HUNT, A STATE-BY-STATE EXAMINATION OF NONDISCRIMINATION LAWS AND POLICIES, CENTER FOR AMERICAN PROGRESS ACTION FUND 3–4 (June 2012), available at https://www.americanprogress.org/wp-content/uploads/issues/2012/06/pdf/state_nondiscrimination.pdf. 83 Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 132 S. Ct. 694, 710 (2012). 84 Georgia State Senate Debate on First Amendment Defense Act, YOUTUBE.COM (Feb. 19, 2016), https://www.youtube.com/watch?v=7QpIt68Xoog.

13 Religious faith based groups in Georgia should lead the charge for greater equality for all, recognizing the inalienable truth that: “We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly.”85 Thus, “Injustice anywhere is a threat to justice everywhere.”86 Or, as the Bible provides: “‘Love your neighbor as yourself.’ Love does no harm to its neighbor. Therefore love is the fulfillment of the law.”87 Georgia can follow the lead of other states, recognizing that LGBT equality and religious liberty are not opposing forces. Indeed, as other states’ experiences have illustrated, comprehensive civil rights legal reform can and does further both of these fundamentally important interests.

IV. THE ECONOMICS OF ANTI-DISCRIMINATION ARE BAD BUSINESS FOR GEORGIA

States that have enacted legislation perceived as facilitating discrimination against LGBT people have faced swift, direct, and steep economic consequences. When former Indiana Governor and Vice President Elect Mike Pence signed legislation billed as promoting religious freedom which was seen by opponents as legalizing discrimination, Indiana was hit with a wave of criticism from the political, business, and sports spheres.88 The Indiana legislature responded within days by enacting a revised bill that clarified that religious freedom could not be used as a justification for anti-LGBT discrimination.89 Even though the original bill was in effect for less than two weeks, serious damage to the state’s economic outlook had already been wrought. Indianapolis alone lost over $60 million in economic opportunities in the aftermath of the religious liberty bills. 90 Other economists have estimated that Indiana lost thousands of jobs and lost or jeopardized a quarter of a billion dollars as a result.91 In North Carolina, the backlash to its HB2 was even more pronounced. Within months of passing, the state lost thousands of jobs and almost $700 million in revenue.92 Five states, the

85 Martin Luther King, Jr., Letter from a Birmingham Jail (1963). 86 Martin Luther King, Jr., Letter from a Birmingham Jail (1963). 87 Romans, 13:9–10. 88 Monica Davey & Mitch Smith, Indiana Governor, Feeling Backlash from Law’s Opponents, Promises ‘Fix’, N.Y. TIMES, Apr. 1, 2015, A14, available at http://www.nytimes.com/2015/04/01/us/politics/indiana-governor- mike-pence-feeling-backlash-from-religious-laws-opponents-promises-a-fix.html. 89 Monica Davey, Campbell Robertson, & Richard Pérez-Peña, Indiana and Arkansas Revise Rights Bills, Seeking to Remove Divisive Parts, N.Y. TIMES, Apr. 3, 2015, A12, available at http://www.nytimes.com/2015/04/03/us/indiana-arkansas-religious-freedom-bill.html. 90 Andrew Bender, Indiana's Religious Freedom Act Cost Indianapolis $60 Million In Lost Revenue, FORBES (Jan. 31, 2016), http://www.forbes.com/sites/andrewbender/2016/01/31/indianas-religious-freedom-act-cost- indianapolis-60-million-in-lost-revenue/#64af187f4e73 (quoting an Indianapolis convention and visitors’ bureau head who claimed many conventions declined to select Indianapolis as their host city in the aftermath of the state’s RFRA passage). 91 Sarah McBride & Laura E. Durson, Indiana’s Religious Freedom Restoration Act Is Bad for Business, CTR. FOR AM. PROGRESS (Mar 25, 2015), https://www.americanprogress.org/issues/lgbt/news/2015/03/31/110232/indianas-religious-freedom- restoration-act-is-bad-for-business/. 92 Bruce Henderson, HB2 Was A Mistake, Most N.C. Voters Say In Observer Poll, CHARLOTTE Observer (Oct. 28, 2016), http://www.charlotteobserver.com/news/local/article111159142.html.

14 District of Columbia, and at least 21 municipalities have barred taxpayer-funded travel to the state.93 The Charlotte area alone suffered $285 million in losses in the months after HB2.94 Raleigh lost $40 million in convention business.95 The National Basketball Association pulled its All-Star Game from Charlotte, the National Collegiate Athletic Association removed at least seven championships from the state, and the Atlantic Coast Conference—based in Greensboro—moved all of its championship events.96 The Department of Justice filed suit against the state alleging that HB2 violates federal civil rights laws.97 If the Justice Department suit is successful, the state’s federal funding would be put in jeopardy, potentially adding up to $5 billion a year in total economic losses due to the enactment of HB2, according to a recent report.98 And beyond hard economics, there is evidence that the effects of HB2 in North Carolina are more existentially far-reaching and pernicious, with 70% of North Carolinians reporting that they feel as though the state’s reputation has diminished as a result of the bill.99 If Georgia were to pass its own analogous state RFRA legislation, all indications point to an even larger negative economic impact. According to reports from the Metro Atlanta Chamber and the Atlanta Convention and Visitors Bureau, the estimated fallout from a religious liberty bill seen as enabling anti-LGBT discrimination would range from $1 to $2 billion.100 Not only is Georgia a larger state with a bigger economy than other states to have passed such laws, but Georgia’s particular economic position leaves it especially susceptible to negative backlash. There are at least five characteristics of the Georgia economy that make it likely that any negative economic impact would be not just larger, but proportionately larger in the following areas: film, conventions, attracting young workers, corporate vulnerability to boycott, and sports.

93 CHRISTY MALLORY & BRAD SEARS, DISCRIMINATION, DIVERSITY, AND DEVELOPMENT: THE LEGAL AND ECONOMIC IMPLICATION OF NORTH CAROLINA’S HB2, WILLIAMS INST. AT UNIV. OF CAL. SCH. OF LAW 26 (2016), available at http://williamsinstitute.law.ucla.edu/wp-content/uploads/Discrimination- Diversity-and-Development_The-Legal-and-Economic-Implications-of-North-Carolinas-HB2.pdf. 94 Jim Morrill, Steve Harrison, & Ely Portillo, Chamber: Let Cities Pass Own LGBT Protections, CHARLOTTE OBSERVER (May 24, 2016), http://www.charlotteobserver.com/news/politics- government/article79503287.html. 95 Julia Sims, HB2 could cost Raleigh up to $40M in convention business, WRAL.com (July 6, 2016), http://www.wral.com/hb2-could-cost-raleigh-up-to-40m-in-convention- business/15834233/#sG1M3PBwuTbj6Muu.99. 96 Colin Campbell, Failed HB2 Compromise Bill Could Have Prevented Sports Losses, GOP Legislator Says, NEWS & OBSERVER (Sept. 26, 2016), http://www.newsobserver.com/news/politics-government/state- politics/article104314141.html#storylink=cpy. 97 Joe Sterling, Eliott C. McLaughlin, & Joshua Berlinger, North Carolina, U.S., Square Off Over Transgender Rights, CNN (May 10, 2016), http://www.cnn.com/2016/05/09/politics/north-carolina-hb2-justice-department- deadline/. 98 CHRISTY MALLORY & BRAD SEARS, WILLIAMS INST. AT UNIV. OF CAL. SCH. OF LAW, DISCRIMINATION, DIVERSITY, AND DEVELOPMENT: THE LEGAL AND ECONOMIC IMPLICATION OF NORTH CAROLINA’S HB2 (2016). 99 MONMOUTH UNIV. POLLING INST., PREZ AND SENATE RACES TIGHT; HB2 DRAG ON GOV. MCCRORY RE-ELECT BID (Aug. 25, 2016), http://www.monmouth.edu/polling- institute/reports/MonmouthPoll_NC_082416/. 100 Aaron Gould Sheinin & Kristina Torres, Studies Show Billions At Risk For Ga. In “Religious Liberty” Fight, ATLANTA J. CONST. (Nov. 19, 2015), http://www.myajc.com/news/news/state-regional-govt- politics/opponents-studies-show-big-risks-for-ga-in-religio/npRM5/.

15 A. Film Film is now a $7 billion a year industry in Georgia101 which accounts for over 80,000 jobs102—figures that put the state behind only California and New York. Tax incentives have rapidly drawn film projects to the state since 2005,103 but any legislation seen as anti-LGBT would easily damage the industry’s nascent presence in Georgia.104 Before Governor Nathan Deal vetoed the 2016 legislative session’s HB 757, Hollywood megaliths such as the Motion Picture Association of America, Disney, and Marvel indicated in certain terms that they would boycott the state if the legislation became law.105 Given the well-known political inclinations and activism of the industry there is no indication that the strong reactions spurred by the potential passage of HB 757 were either anomalous or mere empty threats. Indeed, the market for filming locations outside of California and New York is an especially a competitive one, which has been driven to date largely by tax incentives.106 But it appears unlikely that the industry would be unresponsive to social conditions and pressures. In 2005, the first year that Georgia offered tax incentives for in state film productions, direct studio expenditures in the state totaled only $120 million. Were Georgia to pass legislation deemed anti-LGBT, the state would certainly experience drops in film-related revenues, but more broadly, the state would risk crippling its young and vibrant film industry before it had even reached full maturity.

B. Conventions and tourism Conventions are big business in Georgia. Tourism is responsible for roughly $50 billion in annual spending and 400,000 jobs, representing a tenth of the state economy.107 The Metro Atlanta Chamber estimates losses of “at least $600 million” were Georgia to pass a RFRA-like bill, based on the business community’s response to similar legislation in Indiana. But the Chamber notes that “if

101 Dave Williams, Film Industry Impact In Georgia Passes $7 Billion, Atlanta Bus. Chron. (Aug. 2, 2016), http://www.bizjournals.com/atlanta/news/2016/08/02/film-industry-impact-in-georgia-passes-7- billion.html. 102 Tiffany Stevens, Atlanta’s Explosive Film and TV Growth, By the Numbers, ATLANTA J. CONST. (AUG. 21, 2015) (attributing 77,900 jobs to the film industry in 2015 before the industry grew again last year). 103 Economic Contributions of the Georgia Film and Television Industry, Motion Picture Association of America (2011), http://www.mpaa.org/wp-content/uploads/2014/03/Georgia-Executive- Summary_Feb28.pdf. 104 Jim Galloway, How Georgia’s Film Industry Has Muddled GOP Battle Lines Over “Religious Liberty”, ATLANTA J. CONST. (Mar. 30, 2016), http://politics.blog.ajc.com/2016/03/30/how-georgias-film-industry-has-muddled- gop-battle-lines-over-religious-liberty/. 105 Andrew Pulver, Disney And Marvel To Boycott Georgia If State Passes “Religious Liberty” Bill, GUARDIAN (Mar. 23, 2016), https://www.theguardian.com/film/2016/mar/23/disney-marvel-georgia-religious-liberty-bill- boycott. 106 Peter Caranicas & Rachel Abrams, Runaway Production: The United States of Tax Incentives, VARIETY (Aug. 13, 2013), http://variety.com/2013/biz/news/runaway-production-the-united-states-of-tax-incentives- 1200589317/ (noting that at least 42 states offer tax incentives). 107 Tom Cunningham, Potential Economic Consequences of RFRA-like Legislation, METRO ATLANTA CHAMBER (2016), available at http://macpolicy.com/wp-content/uploads/2015/12/RFRA-Cost-Memo.pdf.

16 the reaction is larger or longer” than in Indiana where the law was in effect for mere days, the negative economic impact would be “much more” significant.108 This is because convention planners are sensitive to potential controversy and think to themselves: why take the risk? A trade publication for professional convention planners found that while a majority of planning professionals were indifferent to political issues affecting site selection, 70% said that they would avoid selecting a location where a political issue might be an important factor.109 Notably, only 17% indicated that they would not cancel a meeting in a destination that passed a law that attendees would find offensive.110 This qualitative and quantitative data fits well with the past economic experience of Georgia. For example, in 2011, in response to passage of the Illegal Immigration Reform and Enforcement Act, a bill seen by some as discriminatory, the state lost over $90 million in convention activity according to the Atlanta Convention and Visitors Bureau.111 While that economic response was certainly significant, the convention losses from a backlash generated by a bill with anti-LGBT provisions could easily make $90 million seem like a drop in the bucket.

C. Workforce attraction and retention Georgia’s economy depends on its ability to draw young people from the region and the nation more broadly. Over the past three decades, Georgia has done this to great effect, leading to proportionately faster growth in Georgia than in the rest of the country.112 But were the legislature to pass a bill seen as facilitating discrimination against the LGBT community, the state’s ability to attract the workforce that is its lifeblood could be significantly impacted. For example, in the ten years between 1990 and 2000, the twenty-nine counties surrounding Atlanta experienced 38% population growth compared to a national average of 13%. The bulk of this growth came from the in-migration of young and educated people. This population, specifically those under age 30, overwhelmingly (78%) support same-sex marriage.113 If Georgia is seen as hostile to the LGBT community—rather than as a leader for equality—the state’s ability to attract these talented young people will be damaged. In Indiana, where the legislature passed a “fix bill” within days clarifying that their version of RFRA would not permit private discrimination against

108 Tom Cunningham, Potential Economic Consequences of RFRA-like Legislation, METRO ATLANTA CHAMBER (2016), available at http://macpolicy.com/wp-content/uploads/2015/12/RFRA-Cost-Memo.pdf. 109 Loren G. Edelstein, Should Politics Matter?, MEETINGS AND CONVENTIONS (Apr. 1, 2015), http://www.meetings-conventions.com/News/Research/Should-Politics-Matter-/. For a fuller range of the responses of convention planners in narrative form, see Loren G. Edelstein, Meeting in a Politically Charged Atmosphere, MEETINGS AND CONVENTIONS (Apr. 1, 2015), http://www.meetings-conventions.com/News/Research/Meeting-in-a-Politically-Charged-Atmosphere/. 110 Loren G. Edelstein, Should Politics Matter?, MEETINGS AND CONVENTIONS (Apr. 1, 2015), http://www.meetings-conventions.com/News/Research/Should-Politics-Matter-/. 111 Loren G. Edelstein, Should Politics Matter?, MEETINGS AND CONVENTIONS (Apr. 1, 2015), http://www.meetings-conventions.com/News/Research/Should-Politics-Matter-/. 112Tom Cunningham, Potential Economic Consequences of RFRA-like Legislation, METRO ATLANTA CHAMBER (2016), available at http://macpolicy.com/wp-content/uploads/2015/12/RFRA-Cost-Memo.pdf. 113 Scott Clement & Robert Barnes, Poll: Gay-Marriage Support At Record High, WASH. POST (Apr. 23, 2015), https://www.washingtonpost.com/politics/courts_law/poll-gay-marriage-support-at-record- high/2015/04/22/f6548332-e92a-11e4-aae1-d642717d8afa_story.html (pre-Obergefell).

17 LGBT persons, firms continue to report that out-of-state prospects consistently ask problematic questions about the social climate of the state.114

D. Corporate vulnerability to boycotts The Metro Atlanta Chamber warns that there is reason to believe that Georgia businesses would be especially susceptible to any boycott efforts because “Georgia’s largest firms tend to be consumer oriented with readily identifiable competitors” meaning that “[t]here are easy alternatives for consumers that want to avoid products of major Atlanta based firms.”115 Empirical studies of the effects of boycotts report that targeted firms suffer abnormal wealth losses in both the short and medium term. Stock prices of businesses targeted for boycotts declined by an average of 2.7% within 10 days of initiation of boycott actions and by 3.4% at 100 days out.116 Based on the ease with which some large Georgia-based firms can be boycotted, these figures represent a conservative estimate. And these figures do not account for consumers’ persistence in consumption: generally once consumer behavior changes, it stays that way, meaning that the effects of a consumer boycott may endure into the long-term for Georgia’s businesses targeted for boycott.

E. Sports A modern and expensive new home for the Atlanta Falcons and the Major League Soccer franchise Atlanta United nears completion in the center of the city. A significant justification for the $1.6 billion price tag for the new Mercedes-Benz stadium, including hundreds of millions in local public contributions,117 is the draw of hosting the Super Bowl. As the Georgia legislature considered HB 757 in the 2016 session, the NFL made clear that if the state were to enact the law, it would no longer be seriously considered to host the event.118 After Governor Deal vetoed HB 757, the NFL promptly awarded the 2019 Super Bowl to Atlanta, bringing in hundreds of millions in revenue to the city. But the league is likely to revisit its decision in response to subsequent legislative action, much like it did in taking away the 1993 Super Bowl from Arizona in response to the state’s failure to recognize MLK Day as a state holiday.119 While the Super Bowl is the single biggest ticket sports event vulnerable to relocation in response to anti-LGBT legislation, there are others that in their totality would dwarf any revenues lost from a relocated Super Bowl. Collegiate sports are particularly vulnerable. For example, Atlanta is set to host the next 11 SEC Football Championship games. Between 1999 and 2014, hosting these

114 Tom Cunningham, Potential Economic Consequences of RFRA-like Legislation, METRO ATLANTA C HAMBER (2016), available at http://macpolicy.com/wp-content/uploads/2015/12/RFRA-Cost-Memo.pdf. 115 Tom Cunningham, Potential Economic Consequences of RFRA-like Legislation, METRO ATLANTA CHAMBER (2016), available at http://macpolicy.com/wp-content/uploads/2015/12/RFRA-Cost-Memo.pdf. 116 Richard E. White & Dilip D. Kare, The Impact Of Consumer Boycotts On The Stock Prices Of Target Firms, 6 J. APPLIED BUS. RES. 63 (1990). 117 Ernie Suggs & Tim Tucker, Atlanta Council Clears Stadium Plan, ATLANTA J. CONST. (Mar. 19, 2013), http://www.myajc.com/news/news/local/key-stadium-vote-could-come-today/nWwXq/. 118 Jeff Schultz, “Religious Liberty” Bill Jeopardizes Atlanta Super Bowl Bid, ATLANTA J. CONST. (Mar. 18, 2016), http://www.ajc.com/sports/football/religious-liberty-bill-jeopardizes-atlanta-super-bowl- bid/sLVWtnaRVMNhZRot2eJs1M/. 119 Cindy Boren, Why The NFL Moved The Super Bowl From Arizona In 1990, WASH. POST (Feb. 26, 2014), https://www.washingtonpost.com/news/early-lead/wp/2014/02/26/why-the-nfl-moved-the-super-bowl- from-arizona-in-1990/.

18 events brought the city an average of $62.5 million per year. The SEC was vocal in its opposition to HB 757 and would likely follow the ACC’s lead in removing its championships from a state seen as hostile to its mission.120 Similarly, there is the NCAA Men’s Basketball Final Four—which Atlanta hosted in 2002, 2007, and 2013, and is scheduled to host again in 2020. Houston pocketed $300 million in revenues from the 2016 Final Four, but Atlanta would miss out on such revenues if the NCAA relocated in response to anti-LGBT legislation, as it has done in North Carolina.121

V. CONCLUSION AND RECOMMENDATIONS

The authors and signatories of this report make the following recommendations for Georgia policymakers and advocates:

Georgia Should Enact Comprehensive Anti-Discrimination Protecting All People’s Rights to Employment, Housing, and Public Accommodations: • Georgia legislators should join the vast majority of other states and enact comprehensive state protections for all Georgians in the exercise of fundamental endeavors such as employment, housing, and public accommodations. • Georgia state law should protect against discrimination in these areas based upon race, religion, color, national origin, physical or mental disability, medical condition, marital status, sex, sexual orientation, gender identity and expression, age, and military or veteran status.

Georgia Should Enact Anti-Discrimination Legislation to Protect the LGBT Community: • Georgia legislators should study what has worked in other states and enact similar or identical comprehensive anti-discrimination laws. • Twenty states and the District of Columbia have employment non-discrimination laws that cover sexual orientation and gender identity. Two more states have laws that cover sexual orientation but not gender identity.122 • Twenty states and the District of Columbia have housing non-discrimination laws that cover sexual orientation and gender identity. Two more states have laws that cover sexual orientation but not gender identity.123 • Nineteen states and the District of Columbia have public accommodations nondiscrimination laws that cover sexual orientation and gender identity. Two more states have laws that cover sexual orientation but not gender identity.124

120 Steven Godfrey, Georgia Law Could Cost Atlanta A Super Bowl, But Losing The SEC Would Cost Even More, SB NATION (Mar. 24, 2016), http://www.sbnation.com/college-football/2016/3/24/11300038/georgia-hb-757- sports-super-bowl-sec-championship. 121 Cara Smith, Here's The “Trick” To Become A Final Four Host City, Houston Prez Says, HOUSTON BUS. J. (Feb. 12, 2016), http://www.bizjournals.com/houston/morning_call/2016/02/heres-the-one-trick-to-becoming-a- final-four-host.html. 122 Non-Discrimination Laws, MOVEMENT ADVANCEMENT PROJECT, http://www.lgbtmap.org/equalitymaps/non_discrimination_laws. 123 Non-Discrimination Laws, MOVEMENT ADVANCEMENT PROJECT, http://www.lgbtmap.org/equalitymaps/non_discrimination_laws. 124 Non-Discrimination Laws, MOVEMENT ADVANCEMENT PROJECT, http://www.lgbtmap.org/equalitymaps/non_discrimination_laws.

19 • Thirteen states have credit and lending non-discrimination laws that cover sexual orientation and gender identity. One more state has laws that cover sexual orientation but not gender identity.125

Any Religious Exemption Law in Georgia Must Protect Places of Worship While Not Legalizing Discrimination More Broadly: • Georgia legislators should ensure that any anti-discrimination law amply protects the religious integrity of places of worship. Legislators should ensure that any comprehensive anti-discrimination reform contains protections for places of worship and clergy. In so doing, Georgia would join all other states to have passed laws shielding LGBT persons from discrimination in employment, housing, and public accommodations. • Georgia legislators should prevent passage of any legislation that has the purpose or effect of enabling or perpetuating discrimination against any individual, including LGBT persons. • Georgia legislators should make any laws creating religion-based exemptions from generally applicable laws explicit that they cannot be used to discriminate, cause harm to third parties, or preempt non-discrimination policies outside of places of worship.

125 Non-Discrimination Laws, MOVEMENT ADVANCEMENT PROJECT, http://www.lgbtmap.org/equalitymaps/non_discrimination_laws.

HIV CRIMINALIZATION IN GEORGIA Penal Implications for People Living with HIV/AIDS

Amira Hasenbush JANUARY 2018 EXECUTIVE SUMMARY

A. INTRODUCTION

HIV criminalization is a term used to describe statutes that either criminalize otherwise legal conduct or that increase the penalties for illegal conduct based upon a person’s HIV-positive status. While only one HIV criminalization law can be found in federal law, more than two-thirds of states and territories across the United States have enacted their own HIV criminal laws. Some HIV criminal laws do not require transmission of HIV, and in some states, these laws criminalize conduct that poses a negligible risk of transmission, such as spitting or biting.

Georgia has one statute that outlines the seven HIV-related criminal offenses under state law. It is divided into two subsections: (1) Ga. Code Ann. § 16-5-60(c): reckless conduct by a person living with HIV—this includes offenses related to sex work, needle sharing, sexual exposure, and blood and tissue donation—and (2) Ga. Code Ann. § 16-5-60(d): assault on a law enforcement or corrections officer with intent to transmit HIV or hepatitis. The purpose of this study was to provide an overall understanding of the enforcement of HIV criminalization laws in Georgia and assess any preliminary findings indicating disparities between subpopulations. Given the movement across the United States, including in Georgia, to modernize HIV-specific criminal laws to bring them in line with current medical science, analysis of the enforcement of the laws helps to inform policy and legislative decision-making with data and a deeper understanding of how the laws have been used in the real world.

B. CRIMINAL HISTORY RECORD INFORMATION DATA

C. MAIN FINDINGS

• There may be disparities in enforcement of HIV criminalization laws related to geography, race/ ethnicity, sex at birth, or sex worker (or suspected sex worker) status.

• HIV-positive Georgians in rural areas were more likely to be arrested for an HIV-related crime than those living in urban areas.

• Black men were more likely to be convicted of an HIV-related offense than White men.

• When considering the demographics of people living with HIV in Georgia, White women were more likely to be arrested for an HIV-criminal offense than other groups.

• Convictions for HIV arrests were three times as likely when there was a concurrent sex work arrest.

• Sex work offenses were more likely to involve women and particularly Black women.

HIV Criminalization in Georgia 2 D. HIGHLIGHTED DATA

• Overall, there were 571 HIV-related arrests in Georgia from 1988 to September 2017.

• There appeared to be almost no enforcement before 1997, after which, on average, there were 27 HIV-related arrests annually. In 2000, arrests reached a record high, with 63 arrests occurring that year.

• Individuals were arrested under HIV-related statutes in 79 out of the 159 counties in Georgia.

• Fulton and DeKalb Counties have the highest prevalence of HIV in the state, yet the proportion of HIV-related arrests was lower than expected. Fulton and DeKalb Counties represented 32% and 17%, respectively, of the people living with HIV in the state during that time, but only 17% and 3%, respectively, of the HIV-related arrests throughout the state.

• People living with HIV outside of metropolitan Atlanta were three times as likely to be arrested for an HIV-related offense as those within the metropolitan Atlanta area: 0.4% of all people living with HIV in the metropolitan Atlanta area experienced an HIV-related arrest, while 1.3% of all people living with HIV outside the metropolitan Atlanta area had an HIV- related arrest.

• However, in some smaller counties, as many as 10% of the residents living with HIV had experienced an HIV-related arrest. The counties with the highest arrest rates among people living with HIV were mostly rural counties clustered in the northern part of the state.

CONCURRENT OFFENSES

• In 31% of all reckless conduct incidents, the reckless conduct offense was the only crime that the person was arrested for or convicted of.

• Forty-four percent of all reckless conduct incidents also involved a seemingly unrelated arrest or conviction under a different statute (e.g., battery, resisting arrest, etc.).

• Among the remaining 25% of reckless conduct incidents, nearly half (49%) had some sort of concurrent drug offense in the same incident, indicating that the arrest may have been related to the needle sharing subsection of the code, 29% had a concurrent sex offense, indicating that they may have been related to the sexual exposure subsection of the code and 29% had a concurrent sex work offense, indicating that they may have been related to the sex work subsections of the code.

DEMOGRAPHICS

• More than six in ten people arrested under an HIV-related offense were Black (63%), and none of the people arrested were recorded as Latino/a.

• Black men and Black women were more likely to be arrested for HIV-related offenses than their White counterparts: 26% of HIV-related arrests were of White males, while 46% of HIV-related arrests were of Black males; additionally, 11% of those arrested were White females, while 16% were Black females.

• However, this disproportionality may have been reflective of disparate HIV rates among Black people in Georgia. When comparing the numbers directly to the underlying population of people living with HIV, White women appeared to be the group most disproportionately arrested under HIV-related laws: they made up only 3% of the population of people diagnosed with HIV in Georgia, but they were 11% of HIV-related arrests in the state.

HIV Criminalization in Georgia 3 OUTCOMES

• Overall, 13% of HIV-related arrests resulted in a conviction for an HIV-related crime. (Sixty-seven percent of incidents did not result in any conviction, and 19% had convictions for non-HIV-related offenses.)

• When analyzing case outcomes by race/ethnicity and sex, most groups appeared to have fairly similar results.

• The one exception was among men. When White men and Black men were compared directly, Black men were nearly twice as likely to be convicted of the HIV-related offense as White men (16% versus 9%, respectively).

• On the other hand, when men were arrested for an HIV-related offense plus other crimes, White men were more likely than Black men to be convicted of the non-HIV-related offenses and not the HIV-related offense (24% versus 15%, respectively).

• The data were also analyzed to determine whether conviction outcomes varied based on the types of other concurrent offenses that occurred in the same incident. The incidents that showed the most divergent outcome pattern were those that also had concurrent sex work offenses.

• Incidents involving sex work and HIV-related reckless conduct were the most likely to involve a conviction overall, whether that was for HIV-related reckless conduct or for some other offense (usually sex work).

• Incidents that did not involve sex work were more than twice as likely to result in no conviction compared to incidents that had concurrent sex work offenses (71% versus 26%, respectively). Concurrent sex work incidents were more likely to involve women, particularly Black women, than non-sex work incidents.

E. FUTURE RESEARCH

• Data point to some race-, sex-1, and geographic-based disparities in the application of these laws. However, they do not provide an explanation of the root causes of these disparities. Future research is needed to pinpoint factors leading to these differences.

• At the structural level, this includes assessing whether the disparities are a function of direct law enforcement targeting of White women, disparate prosecution of Black men, or higher HIV stigma in rural areas. Future research could also explore whether awareness of HIV criminalization laws has an impact on individual or community level norms regarding disclosure and risk behaviors.

• Future research should explore HIV-related criminalization in the context of an individual’s broader criminal history and whether a charge of an HIV crime impacts pleas, convictions, or sentences for other crimes.

• Future research could move beyond enforcement data to more accurately capture the impact and consequences of HIV criminalization from the perspective of affected individuals. For example: Are there differences in how HIV status is discussed or treated between law enforcement officers and various subgroups of people in contact under these statutes? How did contact under these laws affect future HIV status disclosure behavior?

• Utilizing additional methods to study this population may have the added benefit of gaining representation of the distinct experiences of gender and sexual minorities living with HIV.

HIV Criminalization in Georgia 4 F. CONCLUSION

This report provides an overview of the use and enforcement of HIV-related laws in Georgia. Preliminary analyses show some disparities based on race, sex, geography, and underlying related offenses. This is the second state in which the Williams Institute has provided comprehensive data analysis on the enforcement of HIV criminalization laws.

HIV Criminalization in Georgia 5 INTRODUCTION

HIV criminalization is a term used to describe statutes that either criminalize otherwise legal conduct or that increase the penalties for illegal conduct based upon a person’s HIV-positive status. While only one HIV criminalization law can be found in federal law,2 approximately two-thirds of states and territories across the United States have enacted their own HIV criminal laws. Some HIV criminal laws do not require transmission of HIV, and in some states, these laws criminalize conduct that poses a negligible risk of transmission, such as spitting or biting.

Georgia has one statute that outlines all of the HIV-related criminal offenses under state law. None of these offenses requires actual transmission of HIV. See Table 1 for a summary of HIV Criminalization Laws in Georgia.

Table 1. HIV Criminalization Laws in Georgia (2017) Code Section Criminalized Conduct Transmission Statutory Sentence Required? Reckless Conduct by a Person Living with HIV

Ga. Code Ann. Engaging in vaginal, oral or anal sex without prior disclosure No Felony, imprisonment for § 16-5-60(c)(1) (2017) of one’s HIV-positive status not more than 10 years

Ga. Code Ann. Sharing needles or syringes without prior disclosure of one’s No Felony, imprisonment for § 16-5-60(c)(2) (2017) HIV-positive status not more than 10 years

Ga. Code Ann. Offering or agreeing to engage in sexual intercourse in No Felony, imprisonment for § 16-5-60(c)(3) (2017) exchange for money without first disclosing one’s HIV- not more than 10 years positive status

Ga. Code Ann. Soliciting another person for sodomy (defined as oral or anal No Felony, imprisonment for § 16-5-60(c)(4) (2017) sex)3 in exchange for money without first disclosing one’s not more than 10 years HIV-positive status

Ga. Code Ann. Donating blood, blood products, other body fluids, or any No Felony, imprisonment for § 16-5-60(c)(5) (2017) body organ or body part without first disclosing HIV-positive not more than 10 years status

Assault by a Person living with HIV or Hepatitis Upon Police or Correctional Officer with Intent to Transmit

Ga. Code Ann. Committing an assault with the intent to transmit HIV or No Felony, imprisonment for § 16-5-60(d)(1) (2017) hepatitis upon a peace officer while performing their duties not less than 5 nor more (or because they are a peace officer), using blood, semen, than 10 years vaginal secretions, saliva, urine, or feces

Ga. Code Ann. Committing an assault with the intent to transmit HIV or No Felony, imprisonment for § 16-5-60(d)(2) (2017) hepatitis upon a correctional officer while performing their not less than 5 nor more duties (or because they are a correctional officer), using than 10 years blood, semen, vaginal secretions, saliva, urine, or feces

Aside from previous research by the Williams Institute in the state of California,4 there is very little empirical evidence of how HIV criminal laws are being enforced and who the individuals are who are most impacted by HIV criminalization. Previous efforts to collect empirical data from media reports, law enforcement agencies through Freedom of Information Act requests and traditional legal research5 have led to several compilations of data documenting the number of individuals who may have been convicted under HIV criminalization laws.6 However, these efforts have been limited as they do not reflect statewide population-level data and do not include comprehensive data across the spectrum from arrest through post-conviction events, including sentencing.7

HIV Criminalization in Georgia 6 STUDY OVERVIEW

A. DATA SOURCE

Given the lack of comprehensive data on the use of HIV criminal laws in Georgia, Williams Institute researchers contacted the Georgia Crime Information Center at the Georgia Bureau of Investigation and requested access to criminal history record information (CHRI) data.8 CHRI data record any contacts an individual may have with the criminal justice system, from every event beginning at arrest through conviction, so these data provide a full chronological record of how these laws are being utilized.9 After obtaining necessary security clearances from the Georgia Bureau of Investigation, Williams Institute researchers were able to access the de-identified criminal histories of all individuals who had had contact with the criminal justice system under Ga. Code. Ann. § 16-5-60(c) (reckless conduct by a person living with HIV, hereinafter “reckless conduct”) and Ga. Code. Ann. § 16-5-60(d) (assault by a person living with HIV or Hepatitis upon a police or correctional officer with intent to transmit, hereinafter, “assault with intent”) from the time of the laws’ enactment through the third quarter of 2017. Because Ga. Code. Ann. § 16-5-60(d) applies to both people living with HIV and people living with hepatitis, the offense codes for that section do not distinguish between the underlying disease involved. The analyses that follow only included the assault with intent code section when it applied to a person who had a previous or concurrent arrest under the HIV-related reckless conduct statute. Therefore, there may have been some people living with HIV under the assault with intent statute that were excluded from these analyses to ensure that the data analyses that follow are HIV-related. All of the data related to Ga. Code. Ann. § 16-5- 60(c) were specific to people living with HIV.

B. OBJECTIVES

In an effort to address the gap in research about enforcement of HIV criminal laws, the current project sought to understand the following objectives.

Of the individuals who had HIV-related contact with the Georgia criminal justice system:

1. How many had such contact and how many separate incidents did these contacts represent?

2. What were their demographic characteristics and geographic locations?

3. What were the characteristics of each contact, including case outcomes?

4. Is there any preliminary evidence of disproportionate representation of some subgroups?

C. ANALYSIS APPROACH

The data were cleaned and coded in order to answer this set of exploratory research questions. All data were analyzed using Stata version 13.1. When appropriate, inferential statistics were used to test differences between sample subgroups; however, most data are presented descriptively. The analyses that follow include all individuals and incidents that were HIV-related at the time of data.

HIV Criminalization in Georgia 7 FINDINGS

A. INDIVIDUALS WHO HAD HIV-RELATED CONTACT AND THE NUMBER OF SEPARATE HIV-RELATED INCIDENTS

Overall, 54310 people were arrested in Georgia from 1988 through the third quarter of 2017 either under the reckless conduct or assault with intent laws as it related to a person’s HIV status.11 These individuals were involved in 571 separate HIV-related incidents. An incident can be defined as one set of circumstances that may give rise to a series of contacts with law enforcement during arrest, charge, conviction and post-conviction proceedings. Only two incidents included in this analysis involved arrests under the assault with intent statute.12 Additionally, the vast majority of individuals—95%—had only one disease-specific arrest. The remaining five percent of people had experienced two separate disease- specific arrests.

The frequency of enforcement of HIV-related criminal laws has varied since the laws’ passage in 1988. There appeared to be almost no enforcement before 1997, after which, on average, there were 27 HIV- related arrests annually. In 2000, arrests reached a record high, with 63 arrests occurring that year. It should be noted, however, that the data were extracted in November 2017, when only the first three quarters of the year’s arrest data were available, so 2017 data do not include the full year of arrests. See Figure 1 for the number of people who were arrested under Georgia HIV-related criminal laws since their enactment.

Figure 1. Number of People Arrested under Georgia HIV Criminal Laws, by Year

HIV Criminalization in Georgia 8 B. THE DEMOGRAPHIC CHARACTERISTICS AND GEOGRAPHIC LOCATIONS OF INDIVIDUALS WHO HAD HIV-RELATED ARRESTS

While the average age at the time of arrest for the first HIV-related incident was 35, the range of arrestees was from 14 to 73 years of age. Looking more broadly at the ages at which individuals with HIV-related arrests first came into contact with the criminal justice system, nearly half (49%) had their first contact with the criminal justice system before the age of 21, and 22% had their first arrest before the age of 18. Eleven percent had their earliest (and often only) HIV-related arrest before the age of 21, and 2.5% had their first HIV-related arrest before the age of 18. More than six in ten people arrested under an HIV- related offense were Black, and none of the people arrested were recorded as Latino/a. There were only two people arrested under the assault with intent statute; they were both identified in the system as Black and each had one arrest. See Table 2 for further demographic information of the individuals who had HIV-related contact with the Georgia criminal justice system.

Table 2. Number of Incidents and Demographics of People Arrested Under HIV-Related Criminal Laws in Georgia (1988 - September 2017)

Number of incidents 57113 Number of people 543 Age at time of first HIV-specific event14 Oldest 73 Youngest 14 Mean 35.2 Standard Deviation 11.3 Sex15 Female 27% Male 73% Race/Ethnicity Asian/Pacific Islander 0.4% Black 63% White 37% Race/Ethnicity and Sex Black Female 16% Black Male 46% White Female 11% Black Female 26% Other Male 0.4%

Individuals had HIV-related arrests in 79 out of the 159 counties in Georgia.16 Fulton County had the highest number of arrests (17% or 94 arrests). Nine, eight and seven percent of the HIV-related arrests took place in Muscogee, Cobb and Chatham Counties, respectively. Every other county had four percent or fewer of the overall arrests in the state. See Figure 2 indicating counties where HIV criminalization laws have been enforced.

HIV Criminalization in Georgia 9 Figure 2. Georgia Counties Where HIV Criminal Laws Have Been Enforced

When comparing the arrests rates by county to the cumulative rates of people living with HIV within those counties, it is apparent that some counties were overrepresented among the enforcement of HIV criminal laws, while others were underrepresented. For example, Fulton and DeKalb Counties represented 32% and 17% of the cumulative people living with HIV in the state,17 respectively, but only 16% and 3% respectively of the HIV-related arrests throughout the state. On the other hand, Muscogee, Cobb and Chatham Counties each represented approximately 9%, 8% and 7%, respectively of the statewide HIV-

HIV Criminalization in Georgia 10 related arrests, but had only 2%, 5% and 4%, respectively of the cumulative number of people living with HIV for the state. See Figure 3 for a comparison of cumulative HIV prevalence and HIV-related criminal enforcement by counties.

Figure 3. Top Georgia Counties Where HIV Criminal Laws Have Been Enforced Compared with HIV Cumulative Prevalence Rates by County

Interestingly, there was still enforcement of HIV criminal laws in counties with as few as 80 and fewer people living with HIV cumulatively over the time period reviewed. The number of people arrested in an HIV-related incident in a county was compared directly with the number of people living with HIV in that county. In two very small counties, as many as ten percent of the people living with HIV had experienced an HIV-related arrest. By comparison, only .1% of people living with HIV in Fulton County had been arrested related to their HIV status. The counties with more than one arrest with the highest arrest rates among people living with HIV were mostly clustered in the northern part of the state. See Table 3 for a list of counties with the highest HIV-related arrest rates among people living with HIV. See Figure 4 for a histogram displaying the distribution of the percentage of people living with HIV in a county who had HIV-related arrests.

HIV Criminalization in Georgia 11 Table 3. Counties with the Highest Percent of People Living with HIV Arrested for an HIV-Related Offense

County with more than one HIV- Percent of people living with HIV arrested for an related arrest HIV-related offense Madison 10.3% Dawson 9.7% Murray 8.3% Franklin 7.5% Habersham 7.1% Lanier 6.9% Pickens 6.7% Whitfield 6.3% Upson 5.3% Monroe 5.1% Catoosa 5.0%

Figure 4. Histogram of Percent of People Living with HIV in a County who had HIV-Related Arrests

While crime in general and HIV criminalization in particular may be presumed to be problems of urban centers, the data reflect a different reality. The number of people arrested was broken down to review concentration in the metropolitan Atlanta area (Dekalb, Cobb, Gwinnett, Clayton and Fulton Counties) compared to the rest of the state. Thirty-six percent of all people with HIV-related arrests were in the metropolitan Atlanta area, and 64% were outside of those counties. However, when compared with the cumulative number of people living with HIV, people living with HIV outside of metropolitan Atlanta were three times as likely to be arrested for an HIV-related offense than those within the metropolitan Atlanta area: .4% of all people living with HIV in the metropolitan Atlanta area experienced an HIV-related arrest, while 1.3% of all people living with HIV outside the metropolitan Atlanta area had an HIV-related arrest.

HIV Criminalization in Georgia 12 Though not as stark, the same pattern emerged when comparing the counties with the most populous cities (Fulton, Muscogee, Richmond, Bibb and Chatham)18 with the rest of the state. Thirty-eight percent of all people with HIV-related arrests were in the counties with the most populous cities, and 68% were outside of those counties. In the counties with the most populous cities, .6% of all people living with HIV experienced an HIV-related arrest, while outside those counties, .9% of all people living with HIV experienced an HIV-related arrest.

C. CHARACTERISTICS OF ARRESTS

Incidents that involved the reckless conduct statute were analyzed to determine whether there were concurrent arrests under other offenses. Among those incidents that did have other concurrent offenses, the concurrent offenses were grouped into drug offenses, sex offenses, sex work offenses and other offenses. Table 4 lists these categories and their distributions.

Table 4. Reckless Conduct Incidents and Concurrent Offenses that may Indicate the Context of the Offense

Total Reckless Conduct Incidents 570 100% Reckless Conduct Incidents with No Other Offenses 174 31% Reckless Conduct Incidents with Offenses Unrelated to the Statute 252 44% Reckless Conduct Incidents with One Other Offense Hinting at the Subdivision 133 23%

Reckless Conduct + Drugs 60 11% Reckless Conduct + Sex 40 7% Reckless Conduct + Sex Work 19 33 6% Reckless Conduct Incidents with Two Other Offenses Hinting at the Subdivision 11 2% Reckless Conduct + Drugs + Sex Work 9 2% Reckless Conduct + Drugs + Sex 2 0.3% Among Reckless Conduct Incidents with Concurrent Offenses 144 100% Related to the Statute Drugs 71 49% Sex 42 29% Sex Work 42 29%

Thirty-one percent of all reckless conduct incidents showed arrests and/or charges under Ga. Code Ann. §16-5-60(c) without any other arrests or charges under any other crimes. Forty-four percent of incidents did have arrests and/or charges under other criminal offenses in the same incident, but the offenses could not be categorized as related to sex, sex work or drugs. These incidents included arrests/ convictions under codes including Ga. Code Ann. §16-11-37 (terroristic threats and acts), Ga. Code Ann. §16-11-39 (disorderly conduct), as well as arrests/convictions related to assault and battery,20 obstruction of law enforcement officers,21 theft/property crimes,22 weapons offenses,23 and other miscellaneous offenses.24 As is described in Table 1, the reckless conduct statute is divided into subsections describing different types of potential exposures to HIV, which can be summarized as sex, needle sharing, sex work, and blood/fluid/organ donations. In these incidents, the lack of concurrent offenses or the unrelated concurrent offenses made it impossible to determine whether those incidents were related to sexual activity, needle sharing, sex work, or blood/organ donation.

HIV Criminalization in Georgia 13 Among the remaining 144 incidents, nearly half (49%) had some sort of drug offense25 in the same incident, indicating that they may have been related to the needle sharing subsection of the code, 29% had a concurrent sex offense,26 indicating that they may have been related to the sexual exposure subsection of the code and 29% had a concurrent sex work offense,27 indicating that they may have been related to the sex work subsections of the code. These numbers exceed 100%, because 11 incidents had both a drug offense and also either a sex offense or a sex work offense all at the same time.

D. CASE OUTCOMES

Outcomes of the HIV-related criminal incidents in Georgia were divided into three categories: (1) not convicted of any crime, (2) convicted of a non-HIV-related crime and (3) convicted of an HIV-related crime. In the incidents categorized as convicted of a non-HIV-related crime, the defendant was convicted of a crime alleged during the incident in question, but not one of the HIV-related crimes, e.g. for solicitation or drug possession, but not reckless conduct. In the incidents categorized as convicted of an HIV-related crime, the defendant was convicted of either reckless conduct or assault with intent. In those incidents, the defendant may or may not have also been convicted of other non-HIV-related crimes that were alleged in the same incident. See Table 5 for the number and percent of incidents that resulted in each possible outcome for HIV-related incidents in Georgia.

Table 5. Outcomes of HIV-Related Criminal Incidents in Georgia

Number of Incidents Not convicted 374 Convicted of a non-HIV-related crime 107 Convicted of an HIV-related crime 74

Unknown28 16 Total 571 Percent of Incidents (among those with known outcomes) Not convicted 67% Convicted of a non-HIV-related crime 19% Convicted of an HIV-related crime 13%

In approximately two-thirds of all of the incidents reviewed, the arrests resulted in no conviction. Thirteen percent of the incidents resulted in a conviction for reckless conduct. Among the two incidents involving the assault with intent statute, neither were convicted of the assault with intent, and one was not convicted of any offense.

E. PRELIMINARY EVIDENCE OF DISPROPORTIONATE REPRESENTATION OF SUBGROUPS

When comparing the overall demographics of the individuals who had HIV-related arrests to those diagnosed with HIV in Georgia,29 patterns emerge that indicate that certain groups of individuals may have been disproportionately affected by the implementation of these laws. For example, Black men and Black women were more likely to be arrested for HIV-related offenses than their White counterparts: 26% of HIV-related arrests were of White males, while 46% of HIV-related arrests were of Black males; additionally, 11% of those arrested were White females, while 16% were Black females. However, this disproportionality may have been reflective of disparate HIV rates among Black people in Georgia. When

HIV Criminalization in Georgia 14 comparing the numbers directly to the underlying population of people living with HIV, White women appeared to be the group most disproportionately arrested under HIV-related laws: they made up only 3% of the population of people diagnosed with HIV in Georgia, but they were 11% of HIV-related arrests in the state. See Figure 5 for a comparison between HIV prevalence data in Georgia and individuals who had HIV-related arrests.

Figure 5. Comparison of HIV Prevalence in Georgia with People who had HIV-Related Arrests, by Race and Sex

When analyzing case outcomes by race/ethnicity and sex, most groups appeared to have fairly similar results. The one exception was among men. When White men and Black men were compared directly, Black men had conviction rates under HIV-related offenses that were nearly twice as high as White men (16% versus 9% respectively), and the differences in conviction rates were statistically significant from what was expected using a chi squared test (p=.01). Conversely, White men were more likely to be convicted for other concurrent non-HIV specific offenses than Black men. See Figure 6 for a demographic breakdown of charging rates by race/ethnicity and sex.

HIV Criminalization in Georgia 15 Figure 6. Conviction Rates in HIV-Related Incidents, by Race/Ethnicity and Sex, 1988 - March 2017

The data were also analyzed to determine whether conviction outcomes were associated with other concurrent offenses that occurred in the same incident. When reviewing incidents that also had sex offenses in the same incident, those incidents with sex offenses were more than twice as likely to result in a conviction under the reckless conduct offense as those incidents without concurrent sex offenses (28% versus 12%, respectively). (See Figure 7.) On the other hand, incidents with concurrent drug offenses were slightly less likely to result in an HIV conviction and slightly more likely to result in a conviction for some other offense than incidents that did not involve drug offenses. (See Figure 8.) However, the incidents that showed the most divergent outcome pattern were those that also had concurrent sex work offenses. Incidents involving sex work were both significantly more likely to result in a conviction for reckless conduct,30 and were also more likely to result in a conviction for some other offense (usually a sex work offense) if they were not convicted of reckless conduct. Concurrent sex work incidents were also much less likely to result in no conviction than incidents that did not also involve sex work (26% versus 71%, respectively).

HIV Criminalization in Georgia 16

Figure 7. Conviction Rates in HIV-Related Incidents, by Concurrent Sex Offenses, 1988 - March 2017

Figure 8. Conviction Rates in HIV-Related Incidents, by Concurrent Drug Offenses, 1988 - March 2017

HIV Criminalization in Georgia 17 Figure 9. Conviction Rates in HIV-Related Incidents, by Concurrent Sex Work Offenses, 1988 - March 2017

Concurrent sex work incidents also reflected a different demographic makeup than HIV-related incidents that did not involve sex work. Concurrent sex work incidents were more likely to involve women, particularly Black women, than non-sex work incidents. See Figure 10 for a comparison of the demographic distributions of the HIV-related incidents that involved sex work versus those that did not.

Figure 10. Comparison of Race/Ethnicity and Sex Between HIV-Related Incidents with Concurrent Sex Work Offenses and Without

HIV Criminalization in Georgia 18 LIMITATIONS

This research has several limitations related to the nature of CHRI data. CHRI relies upon data entered by law enforcement agencies, prosecuting agencies and criminal courts throughout the state. Because entries are not uniform throughout the records, deciphering the data required a time-intensive process. The review of concurrent arrests for other offenses in HIV-related incidents indicated that there may have been some data entry errors related to the incidents being analyzed.31 However, because there did not appear to be any systematic errors, no incidents were excluded from the larger analysis. Additionally, because of inconsistency in reporting by the courts, the Georgia CHRI data excluded any information on sentencing.

Another significant limitation to these data was the lack of information regarding sexual orientation and gender minority status. Because sexual orientation and gender identity data are not collected by the Georgia Crime Information Center, these data were not a part of CHRI data. Given the disproportionate impact HIV infection has on gay and bisexual men and transgender women, this gap in the data is significant.

Additionally, the lack of any individuals in the data identified as Latino/a or Hispanic indicates that there is likely some bias in the collection of data on race/ethnicity. It may be that race/ethnicity data are generally collected by what a law enforcement officer presumes that a person’s race/ethnicity is when visually assessing them, and that some people who are of Latino/a and/or indigenous descent may be miscategorized as Black or White.

Finally, there are limitations in terms of the level of detail and nuance available through CHRI data. While the data were separated into the categories of reckless conduct and assault with intent, the data were not further separated into the subsections of the statute that are laid out in the law. Therefore, it was impossible to estimate with any exact certainty the proportion of cases that occurred in the context of sex work, needle sharing, or other consensual sex acts. Additionally, the assault with intent statute includes both people living with HIV and people living with hepatitis, so there was no way to determine what underlying disease was being prosecuted under those code sections.

HIV Criminalization in Georgia 19 RESEARCH, LAW AND POLICY IMPLICATIONS

These CHRI data provide a snapshot of how HIV criminalization laws have been enforced in Georgia and further understanding of the ways that a person’s HIV-positive status impacts interactions with law enforcement. Data suggest there may be ways in which specific communities, whether defined by geography, race/ethnicity, sex at birth, or sex worker or suspected sex worker status, may or may not be experiencing a disproportionate impact with regard to these laws.

These data greatly underscore what remains unknown about the enforcement of HIV criminalization laws. One of the original estimates of the impact of HIV criminalization nationally counted a little over 300 cases over a period of 15 years.32 More recently, a journalist compiled a database after identifying 1,352 records covering 19 states’ HIV criminalization laws since 2003.33 However, recent analyses from California showing over 1,000 incidents34 and the result here showing nearly 600 in Georgia indicate that existing estimates of national HIV criminalization rates are highly underestimated. It may be worthwhile to evaluate whether other states have similar data sets that would be available for similar research purposes in order to calculate a more precise national estimate.

Enforcement data in Georgia also highlight a gap in the body of research examining HIV criminalization laws. The central rationales for HIV criminal laws are to deter “bad actors” who willfully transmit HIV and to aid public health goals of controlling the spread of the disease. In the case of Georgia, the majority of individuals who were arrested under HIV criminalization laws were arrested under the reckless conduct statute, which has no specific intent to transmit requirement. Even if the excluded incidents that could not be definitely identified as HIV or hepatitis are counted, only 4% of all arrests under the HIV-related laws had an intent to transmit requirement, and none of the statutes required proof of transmission.

Additionally, even though the data could not definitively be completely divided by subsection of the reckless conduct statute, preliminary analyses using concurrent arrest and conviction data indicated that sex workers are being treated much more harshly in the context of HIV criminalization laws in Georgia than injection drug users, sex offenders, or others engaging in activity that could potentially expose an individual to HIV. Given the disproportionate impact of sex work laws on women, especially Black women, which was reflected even in the small sample in this report, it is likely that at least in the context of sex work, HIV criminalization laws will have a disproportionate effect on women, particularly Black women.

These data also indicate that there may be disparities in enforcement occurring based on geographic region. Despite there being fewer people in general and fewer people living with HIV in rural areas of Georgia, the analyses found that rural Georgians living with HIV were more likely to be arrested under an HIV-related law than those living in urban areas. While it is possible that this is related to differential behavior in rural versus urban areas, this disparity may point to differential knowledge and attitudes with respect to HIV. Higher levels of HIV-related stigma have been documented in rural areas,35 which may encourage more HIV-related arrests and prosecutions.

Future lines of inquiry could include sentencing data and analysis of offenders’ entire criminal history, to better understand incidents involving HIV-related criminalization in the context of other criminal incidents. This will help to gain an understanding of the context in which these observed incidents

HIV Criminalization in Georgia 20 are occurring. Efforts to identify and evaluate further disparities in lengths of sentences should be contemplated, including analysis which may reveal any existing correlations between known HIV-positive status and the length of sentences after such knowledge is gained by players within the criminal justice system and demographic trends, if any.

In order to better understand the impacts of these laws and the population disparities we observed, future research could move beyond law enforcement and sentencing rates. In particular, it would be useful to understand how people who have been arrested under these statutes have experienced that process of law enforcement contact and the mental health, emotional and structural consequences of those experiences. Both quantitative and qualitative studies with those that have had interactions with the Georgia criminal justice system on HIV-related offenses would be useful in exploring these questions.

The use of these additional methods would also offer the added benefit of gaining representation of the distinct experiences of gender and sexual minorities living with HIV who have engaged with Georgia’s criminal justice system since we do not otherwise have sufficient data to determine to what degree LGBT populations are impacted by these laws. We do know that other research and policy organizations have taken note of disparities in the policing of LGBT communities36 and the policing of transgender women37 especially. Therefore, this type of research would be useful in adding dimension to what we already know.

HIV Criminalization in Georgia 21 CONCLUSION

These data provide insight into the enforcement of HIV criminalization laws in Georgia. Since the inception of these laws, at least 543 Georgians have been directly affected by them. Because these data are comprehensive and include basic demographic data, we have gained some ability to describe people living with HIV who have had HIV-related contact with the Georgia criminal justice system. Further analysis of the data may explain the context in which these criminal incidents are occurring and disparities may be observed in the length of sentences. Future research, beyond enforcement data, is needed to understand the observed population disparities and what factors may have led to differences based on race, sex and geography. These data do not provide insight into the lived experiences of those individuals who have come into contact with law enforcement on the basis of HIV criminal laws and the impact (i.e. emotional, mental health, structural consequences) of such interactions. Also, these data do not include information regarding sexual and gender minority status. Thus, utilizing additional methods of research will be useful in advancing research in this field.

HIV Criminalization in Georgia 22 FUNDERS

This study is funded by the Elton John AIDS Foundation

ACKNOWLEDGMENTS

Thank you to Neil Gerstenberger at the Georgia Crime Information Center of the Georgia Bureau of Investigation for assistance in gaining access to the CHRI data and Tammy Meredith and Shila Hawk of Applied Research Services for assistance in the data retrieval and data cleaning process. Thank you to Brian Huylebroeck and the Georgia Department of Public Health for provision of cumulative data on the demographics of people living with HIV by county. Thank you to Sequoia Ayala from Sister Love, Jeff Graham and Emily Brown from Georgia Equality and Johnnie Kornegay from the Counter Narrative Project for providing preliminary feedback on data interpretation. Thank you to Bianca Wilson as the formal reviewer of this report.

ABOUT THE AUTHOR

Amira Hasenbush, J.D., M.P.H., is the Jim Kepner Law and Policy Fellow at the Williams Institute, UCLA School of Law.

ABOUT THE INSTITUTE

The Williams Institute is dedicated to conducting rigorous, independent research on sexual orientation and gender identity law and public policy. A think tank at UCLA Law, the Williams Institute produces high- quality research with real-world relevance and disseminates it to judges, legislators, policymakers, media and the public. These studies can be accessed at the Williams Institute website.

CITATION

Amira Hasenbush, The Williams Inst. Univ. Of Cal. L.a. Sch. Of Law, Hiv Criminalization In Georgia: Penal Implications For People Living With Hiv/Aids (2018), https://williamsinstitute.law.ucla.edu/wp-content/ uploads/HIV-Criminalization-Georgia-Jan-2018.pdf

FOR MORE INFORMATION

The Williams Institute, UCLA School of Law Box 951476 Los Angeles, CA 90095-1476 (310) 267-4382 [email protected] williamsinstitute.law.ucla.edu

HIV Criminalization in Georgia 23 ENDNOTES

1 CHRI data do not record a person’s self-reported gender identity and often are recorded based on the contact officer’s assumptions about sex assigned at birth. Therefore, this report cannot distinguish between cisgender and transgender people in the dataset and cannot assess the experiences of transgender people with arrests under these laws.

2 See 18 U.S.C. § 1122 (2017)(pertaining to the donation or sale of blood or other potentially infectious fluids or tissues).

3 Ga. Code Ann. § 16-6-2 (2017).

4 Amira Hasenbush, Bianca D.m. Wilson, Ayako Miyashita & Madeleine Sharp, The Williams Inst. Univ. Of Cal. L.a. Sch. Of Law, Hiv Criminalization And Sex Work In California (2017), https://williamsinstitute.law.ucla.edu/research/health-and-hiv-aids/ hiv-criminalization-sex-work-ca/; Amira Hasenbush & Brian Zanoni, The Williams Inst. Univ. Of Cal. L.a. Sch. Of Law, Hiv Criminalization In California: Evaluation Of Transmission Risk (2016), http://williamsinstitute.law.ucla.edu/wp-content/ uploads/HIVCriminalization.EvaluationofTransmissionRisk.2016.pdf; Amira Hasenbush & Bianca D.m. Wilson, The Williams Inst. Univ. Of Cal. L.a. Sch. Of Law, Hiv Criminalization Against Immigrants In California (2016), http://williamsinstitute.law. ucla.edu/wp-content/uploads/HIVCriminalizationAgainstImmigrants.2016.pdf; Amira Hasenbush, Ayako Miyashita & Bianca D.m. Wilson, The Williams Inst. Univ. Of Cal. L.a. Sch. Of Law, Hiv Criminalization In California: Penal Implications For People Living With Hiv/Aids (2015), http://williamsinstitute.law.ucla.edu/wp-content/uploads/HIV-Criminalization-California-Updat- ed-June-2016.pdf.

5 Traditional legal research is limited to case law searches, which only provide information on arrests that result in prosecutions which are published or otherwise publicly available cases.

6 See Ctr. For Hiv Law & Policy, Hiv Criminalization In The United States A Sourcebook On State And Federal Hiv Criminal Law And Practice (2017), http://www.hivlawandpolicy.org/sites/default/files/HIV%20Criminalization%20in%20the%20U.S.%20 A%20Sourcebook%20on%20State%20Fed%20HIV%20Criminal%20Law%20and%20Practice_0.pdf; Sergio Hernandez, Sex, Lies and HIV: When What You Don’t Tell Your Partner Is a Crime, Propublica Dec. 1, 2013, available at http://www.propublica. org/article/hiv-criminal-transmission; Trevor Hoppe, Disparate Risks of Conviction Under Michigan’s Felony HIV Disclosure Law: An Observational Analysis of Convictions and HIV Diagnoses, 1992–2010, 17 Punishment & Society 73 (2015).

7 See Zita Lazzarini, Carol L. Galletly, Eric Mykhalovskiy, Dini Harsono, Elaine O’Keefe, Merrill Singer, & Robert J. Levine, Criminalization of HIV Transmission and Exposure: Research and Policy Agenda, 103 AM. J. Publ. Health 1350, 1350-51 (2013) (citing need for more projects that provide data on how these laws are actually enforced).

8 IRB exemption was granted under UCLA IRB# 17-000711.

9 Sentencing data are not included in CHRI records because it is not consistently reported by the courts.

10 An additional 22 people were arrested under the assault with intent statute, but it could not be determined whether those arrests were related to HIV or hepatitis.

11 The original law passed in 1988 only included the subsection related to reckless conduct. The assault with intent subsection was added to the law in 2003.

12 An additional 24 assault with intent incidents were excluded from this analysis, because it was unclear if they were related to HIV or hepatitis.

13 The sum of the number of incidents in the statute-specific categories does not equal the number of overall incidents, because there was one incident in which the person was arrested under both offense codes. Therefore, the data presented in the categories of statutes are not mutually exclusive.

HIV Criminalization in Georgia 24

14 The age calculations only include the first arrest in a person’s history of each of the incidents above. For example, if a person was involved in two disease-specific incidents overall – one reckless conduct and one assault with intent– the earliest of the two will be counted in the overall column, reckless conduct incident will be counted in the reckless conduct column and the assault with intent incident will be counted in the assault with intent column. The oldest and youngest ages reported were rounded down to the nearest whole number to reflect the age that the individual would identify as at that time. Individuals with ages in their criminal records younger than 13 years old were excluded from the analysis as presumed data entry errors, because only youth ages 13 and older can be tried as adults and therefore could have data in the non-juvenile CHRI data set. Ga. Code Ann. §§ 15-11-560, 15-11-560.

15 CHRI data do not record a person’s self-reported gender identity and often are recorded based on the contact officer’s assumptions about sex assigned at birth. Therefore, this report cannot distinguish between cisgender and transgender people in the dataset and cannot make claims about the experiences of transgender people with contact under these laws.

16 Three incidents had missing data regarding the county of arrest.

17 With thanks to Brian Huylebroeck and the Georgia Department of Public Health for provision of cumulative data on the demographics of people living with HIV by county. Data are on file with the author. The most recent data available on HIV prevalence rates in Georgia count through the end of 2015, so the time frames for comparison do not overlap perfectly.

18 The populous cities in those counties are: Atlanta (Fulton), Columbus (Muscogee), Augusta (Richmond), Macon (Bibb) and Savannah (Chatham).

19 Though the subsections of the reckless conduct statute distinguish between solicitation and soliciting someone else for sodomy, many of the incidents showed arrests for both types of offenses in the same incident, so they did not appear to clearly delineate between two different kinds of conduct and therefore were combined together in this analysis.

20 The codes categorized under the “assault and battery” designation included: Affray (Fighting), Aggravated Assault, As- sault, Battery, Cruelty To Children, False Imprisonment, Family Violence, Kidnapping, Murder, Neglect to a Disabled Adult/ Elder, Stalking and Violate Family Violence Order.

21 The codes categorized under the “obstruction of law enforcement officers” designation included: Assault or Battery on an Officer, Obstruction of Law Enforcement, Removal or Attempted Removal of a Weapon from a Public Official, Fleeing or Attempting to Elude a Police Officer, Assailing, Opposing, or Resisting an Officer of the Law in a Penal Institution and Riot in a Penal Institution.

22 The codes categorized under the “theft/property crimes” designation included: Hijacking a Motor Vehicle, Armed Rob- bery, Burglary, Theft, Entering Automobile or Other Motor Vehicle with Intent to Commit Theft, Forgery, Financial Trans- action Card Fraud, Identity Fraud, Deposit Account Fraud (Bad Checks), Criminal Damage to Property, Interference with Government Property, Damaging, Injuring or Interfering with Property of Public Utility Companies and Criminal Trespass. These codes primarily seem unrelated to HIV exposure and may indicate data entry errors in the data. However, since there did not appear to be any systematic data entry issue, the incidents were not excluded from the analysis. Nineteen incidents had a reckless conduct arrest and a theft/property crime offense and no other offense involved in the incident.

23 The codes categorized under the “weapons offenses” designation included: Carrying a Concealed Weapon, Carry- ing a Pistol without a License, Carrying Deadly Weapons To Or At Public Gatherings, Carrying Weapons Within School Safety Zones, At School Functions, Or On School Property, Discharge Of Firearms on or Near Public Highway or Street, Discharge of Firearms on Property of Another, Discharging Firearm While Under Influence of Alcohol or Drugs, Firearm Use by Convicted Felon in Commission of Crime, Pointing or Aiming Gun or Pistol at Another, Possession of a Firearm by a Convicted Felon, Possession of Firearm or Knife During Commission of or Attempt to Commit Certain Felonies, Posses- sion of Pistol or Revolver by Person Under 18 Years, Receipt, Possession or Transfer of Firearm by Convicted Felon and Unauthorized Possession of Weapon by Inmate.

24 The codes categorized under the “miscellaneous” designation included categories such as: traffic violations, parole violations, probation violations, contempt of court, cruelty to animals, interference with custody, criminal attempts and con- spiracies, transmission of false reports, harassing phone calls and endangering/contributing to the delinquency of a minor.

25 The codes categorized under the “drug offense” designation included: Abandonment of Certain Dangerous Drugs, Poisons or Controlled Substances; Crossing State/County Guard Lines with Weapons, Intoxicants, Drugs without Con-

HIV Criminalization in Georgia 25 sent; Drugs/Medicine, etc. Prepared Only by Registered Pharmacist; Drugs not in Original Container; Driving Under the Influence; Manufacture/Possess etc. of Controlled or Counterfeit Substance, or Marijuana, Near Park/Housing Project; Manufacture/Sell/Dispense/Distribute Drugs; Marijuana-Possession Less than 1 Oz; Possession and Use of Drug Related Objects; Possession of a Schedule II Controlled Substance; Possession of Cocaine; Purchase, Possession, Manufacture Distribution, or Sale Of Marijuana; Sale Of Cocaine; Trafficking in Cocaine, Illegal Drugs, Marijuana, or Methamphetamine; Transactions in Drug Related Objects; Use of Communication Facility in Commission of a Felony Involving Controlled Substances; and Violation of the Georgia Controlled Substance Act. Though some of these drug offenses do not require the use of needles, all drug related offenses were grouped together in the possible event that needles were found on the person when they were arrested for a different kind of drug offense.

26 The codes categorized under the “sex offense” designation included: Aggravated Sodomy, Incest, Public Indecency, Rape, Sexual Assault, Sexual Battery, Sodomy, Statutory Rape, Aggravated Child Molestation, Child Molestation and Entic- ing a Child for Indecent Purposes.

27 The codes categorized under the “sex work offense” designation included: Keeping a Place of Prostitution, Maintaining a Disorderly House, Pandering/Idling/Loitering for Sex, Prostitution and Solicitation of Sodomy.

28 Case outcomes were only available in data through the first quarter of 2017.

29 With Thanks To Brian Huylebroeck and the Georgia Department of Public Health for provision of cumulative data on the demographics of people living with HIV. Data are on file with the author.

30 Of the 15 sex work concurrent incidents that resulted in convictions for reckless conduct, 12 of those incidents also had concurrent convictions for the sex work offense.

31 For example, in two reckless conducts incidents, there were convictions for forgery, which appears unrelated to HIV exposure.

32 Zita Lazzarini, Sarah Bray, & Scott Burris, Evaluating the Impact of Criminal Laws on HIV Risk Behavior, 30 J. L. Med. & Ethics 239, 245 (2002).

33 Sergio Hernandez, Sex, Lies and HIV: When What You Don’t Tell Your Partner is a Crime (2013), https://www.propublica. org/article/how-we-built-our-hiv-crime-data-set.

34 Hasenbush, Miyashita & Wilson, supra note 4.

35 Other research has reflected higher levels of HIV-related stigma in rural versus urban areas. Susan Reif, Carol E. Golin, & S.R. Smith, Barriers to Accessing HIV/AIDS Care in North Carolina: Rural and Urban Differences, 17 AIDS Care 558 (2005); T. G. Heckman, A. M. Somlai, J. Peters, J. Walker, L. Otto-Salaj, C. A.Galdabini & J. A. Kelly, Barriers to Care Among Persons Living with HIV/AIDS in Urban and Rural Areas, 10 AIDS Care 365 (1998).

36 See Catherine Hanssens, Aisha C. Moodie-Milles, Andrea J. Ritchie, Dean Spade & Urvashi Vaid, A Roadmap for Change: Federal Policy Recommendations for Addressing the Criminalization of LGBT People and People Living with HIV, New York: Cen- ter for Gender & Sexuality Law at Columbia Law School (2014).

37 See Frank H. Galavan, Mohsen Bazargan, Interactions Of Latina Transgender Women With Law Enforcement (2012) https://williamsinstitute.law.ucla.edu/wp-content/uploads/Galvan-Bazargan-Interactions-April-2012.pdf, Sandy E. James, Jody L. Herman, Susan Rankin, Mara Keisling, Lisa Mottet, & Ma’ayan Anafi, Nat’l Ctr. For Transgender Equality, The Report Of The 2015 U.s. Transgender Survey, Chapter 14: Police, Prisons, And Immigration Detention (2016) https://www.transequality.org/sites/default/files/docs/USTS-Full-Report-FINAL.PDF.

HIV Criminalization in Georgia 26 App. 1

Cities CITY CITATION Athens Code Sec. 1-17-1 Discrimination and Harassment prohibited Atlanta EEO Sec. 2-1381, 114-51 Fair Private Employ 94-112 Human Relation Commission 94-11 Unlawful Discrimination 94-68 Crimes manifesting evidence of prejudice 98-39 Augusta https://www.augustaga.gov/697/ Equal-Employment-Opportunity Baldwin cityofbaldwin.org/phocadownload- pup/job%20application.pdf Carrollton https://www.carrollton-ga.gov/city- departments/human-resources/ employment/ Cedartown https://m.cedartown.gov/app/employment-opportunities/9351339/36/ Chamblee Ord. No. 764 Chatahoochee www.chatthills.us/wp-content/ Hills uploads/2014/12/Employment- Application.pdf Chatsworth https://www.chatsworthga.gov/ Employmentapp Clarkston Code Sec. 14-4

App. 2

CITY CITATION Cleveland https://cityofclevelandga.org/ government/about_cleveland.php Columbus City of Columbus GA Affirmative Action Annual Report FY2018 https://www.columbusga.gov/HR/ pdfs/AAAReport_FY18.pdf Dallas https://dallasga.gov/employment/ Decatur http://www.decaturga.com/community/page/nondiscrimination-policy Doraville Ordinance 2018-018 Code Sec. 6-1001 E. Point Sec. 4-1006 Forsyth www.cityofforsyth.net/wp-content/ uploads/2015/02/employmentapplication.pdf Griffin Code Sec. 2-216 Helen https://www.cityofhelen.org/images/ helencity/pdfs-forms/Employment_ Application_with_wages.pdf Hinesville www.cityofhinesville.org/77/Human- Resources Jasper www.jasper-ga.us/pdf/cityapp.pdf Macon-Bibb EEO Code Sec. 19-47 Personnel Sec 18-1 Midway www.historicmidway.com/Employ- ment-Application05714.pdf

App. 3

CITY CITATION Milton https://www.cityofmilton.us/lib/file/ manager/orgfiles/New%20forms/ Employment%20Applica- tion%202013.pdf Monroe http://www.monroega.com/sites/default/files/fileattachments/human_ resources/page1181/general_employ- ment_application.pdf Norcross https://www.norcrossga.net/Document Center/View/397/Employee- Application-013?bidld= N. High Shoals EEOC Ordinance 12-7 Oakwood www.cityofoakwood.net/Assets/Files/ Application12.03.12.pdf Peachtree City Code Sec. 2-2 Pooler https://pooler-ga.gov/pooler-references/ employment Riverdale www.riverdalega.gov/102/Career- with-Riverdale – Police-Department Sandy Springs www.sandyspringsga.gov/city-services/ resources/careers Savannah Code Sec. 2-3066 EEO and non-discrimination policy St. Marys www.stmarysga.gov/department/ human_resources/docs/St_Marys_ Police_EmploymentApplication.pdf

App. 4

CITY CITATION Sylvester https://cityofsylvester.com/ departments/human-resources Thomasville https://thomasville.org/departments/ human-resources-community- relations Union City www.unioncityga.org/home/show document?id=565 (employment app) Vidalia https://www.vidaliaga.gov/finance/ page/human-resources Vienna https://cityofvienna.org/Assets/Files/ APPLICATION%20FOR%20 EMPLOYMENT.pdf

Counties COUNTY CITATION Baldwin County https://www.baldwincountyga. com/dept-directory/human- resources Banks County co.banks.us/dept-hr-employees.htm Colquitt County www.ccboc.com/document_center/ Employment/1_Employment Application_Fill_In.pdf Decatur County http://www.decaturcountyga.gov/ wp-content/uploads/2015/ APPLICATION_FOR_EMPLOY- MENT.doc DeKalb County Code Sec. 20-194 SEc. 20-68

App. 5

COUNTY CITATION Fulton County Code Sec. 38-1 Nondiscrimination Policy, 154-4 Discrimination and Harassment in Workplace Habersham https://www.habershamga.com/ County humanresources.cfm Jackson County www.jacksoncountygov.com/ 278/Employment-Application- Tips Johnson County johnsonco.org/equal-oppurtunity- statement (NOTE: spelling is in- correct for “opportunity” on web) Lowndes County https://www.lowndescounty.com/ 150/Human-Resources Murray County https://www.murraycountyga.org/ Jobs/aspx Putnam County https://www.putnamcountyga.us/ hr Rockdale County https://rockdalecountyga.gov/ about/company-history/county- departments/human-resources/ equal-opportunity-statement Stephens County https://www.stephenscountyga. com/forms/employment.pdf

A VIEW FROM THE GEORGIA GENERAL ASSEMBLY: CONVERSION THERAPY, RFRA AND STATE LEVEL ANTI-DISCRIMINATION LEGISLATION

<< Back to Table of Contents Record number of LGBTQ lawmakers take office in Georgia House — Project Q Atlanta 9/15/2019, 11:33 PM Record number of LGBTQ lawmakers take office in Georgia House By Patrick Saunders | Jan 15, 2019 | 12:22 PM

Matthew Wilson was sworn into the Georgia House on Monday, making him the fifth LGBTQ member of the legislature — the largest number of openly LGBTQ members the Georgia legislature has ever had.

Wilson (top photo, far left) — whose mother stood with him on the House floor during his oath of office — called it “a very exciting day.”

https://www.projectq.us/atlanta/Record_number_of_LGBTQ_lawmakers_take_office_in_Georgia_House?gid=19516 Page 1 of 3 Record number of LGBTQ lawmakers take office in Georgia House — Project Q Atlanta 9/15/2019, 11:33 PM

“I’m just taking it all in. We’ve already started voting on some stuff,” Wilson said. “So, it’s just an incredible honor. And to have my family here and friends — we had about 10 volunteers and supporters up in the gallery to watch it — it’s an honor to have them here and to be here.”

Wilson beat Republican incumbent Meagan Hanson in November to take this hotly contested House District 80 seat in Brookhaven.

Wilson was sworn in alongside fellow LGBTQ state Reps. Karla Drenner, Park Cannon, Sam Park and Renitta Shannon.

Georgia now has the most openly LGBTQ state legislators of any state in the South, according to the LGBTQ Victory Fund.

“Georgia is leading the entire South in LGBTQ representation in the state legislature — and you would need to travel 520 miles north or 900 miles west to find a state with the same number of out LGBTQ state legislators,” said former Houston Mayor Annise Parker, president and CEO of the LGBTQ Victory Fund.

“With a larger LGBTQ legislative caucus comes more influence and more political power. We know that when LGBTQ elected officials are in the room, it humanizes our lives, changes political debates and leads to more inclusive legislation. Georgia is behind most states in pro-equality laws and policies, but this army of five will undoubtably begin to change that," Parker added.

Drenner (top photo, middle) entered her 10th term representing House District 85 in Avondale Estates. She became the first-ever openly LGBTQ person in the Georgia legislature when she was sworn in in 2001.

“It’s nice to have friends,” Drenner said.

“It’s exciting. It was lonely for the first 10 or 12 years. The world has changed https://www.projectq.us/atlanta/Record_number_of_LGBTQ_lawmakers_take_office_in_Georgia_House?gid=19516 Page 2 of 3 Record number of LGBTQ lawmakers take office in Georgia House — Project Q Atlanta 9/15/2019, 11:33 PM

a lot since 2001. I welcome all of them. I think they’re an amazing group of individuals and I’m honored to serve with them,” she added.

Cannon (top photo, second from right) entered her second full term representing House District 58 in Atlanta. Cannon, who identifies as queer, won a special election to replace former state Rep. Simone Bell in 2016.

Park (top photo, far right) entered his second term representing House District 101 in Lawrenceville. He became the first openly gay man elected to the Georgia House in 2016. He is also the first Asian-American Democrat elected to the House.

Shannon (top photo, second from left) entered her second term representing House District 84 in Decatur. She came out as bisexual on the eve of National Coming Out Day in 2017. Shannon is the first openly bisexual member of the Georgia legislature.

One issue the five House members will likely face this session is anti-LGBTQ “religious freedom” bills. Some House and Senate members appear ready to reignite that fight, which has been dragging on for years under the Gold Dome.

But House Speaker David Ralston has made clear his opposition to such bills. He spoke of having “serious concerns” about the legislation in December. And he said on Jan. 10 that the bills are “a solution in search of a problem” and that they could “tear at the fabric of the state.”

Ralston was re-elected House Speaker on Monday with a vote of 162 to 10. All five of the LGBTQ caucus members voted for Ralston.

https://www.projectq.us/atlanta/Record_number_of_LGBTQ_lawmakers_take_office_in_Georgia_House?gid=19516 Page 3 of 3 LGBTQ Legislation to Watch Compiled by: Rep. Matthew Wilson Sexual Orientation and Gender Identity CLE | As of Sept. 16, 2019 ______

LGBTQ COMMUNITY

• HB 19–– Comprehensive civil rights law (Rep. Sandra Scott) o Awaiting hearing by House Judiciary Committee • SB 221–– Religious Freedom Restoration Act (Sen. Marty Harbin) o Awaiting hearing by Senate Judiciary Committee • HR 822–– Resolution commemorating the 50th Anniversary of the Stonewall Inn Movement (Rep. Sam Park) o Adopted by the House on Apr. 2, 2019

CRIMINAL LAW

• HB 426––Criminal procedure; imposition of punishment for crimes involving bias or prejudice (hate crimes); revise criteria (Rep. Chuck Efstration) o Passed House 96-64; Currently in Senate Judiciary Committee • SB 166––“Georgia Enhanced Penalties for Hate Crimes Act” (Sen. Lester Jackson) o Awaiting hearing by Senate Judiciary Committee

HEALTHCARE

• HB 158–– require Medicaid recipients have the same access to antiretroviral regimens used to treat HIV and AIDS as to those included in the formulary established for the Georgia AIDS Drugs Assistance Programs (Rep. Deborah Silcox) o Passed House 169-0; Awaiting hearing by Senate Health and Human Services Committee • HB 217––decriminalizes the act of working or volunteering for a syringe-services program (a step towards legalizing the programs) (Rep. Houston Gaines; Sen. Kay Kirkpatrick) o Signed into law; Effective date July 1, 2019 • HB 290–– Creation of a three-year pilot program to provide PrEP assistance to persons at risk for HIV infection (Rep. Sharon Cooper; Sen. Kay Kirkpatrick) o Signed into law; Effective date July 1, 2019 o No current appropriation for the program, so stalled

-1- • HB 580––Youth Mental Health Protection Act; professions and businesses; practice of conversion therapy; prohibit (Rep. Matthew Wilson) o Awaiting hearing by House Regulated Industries Committee

EDUCATION

• HB 53–– Providing for mandatory First Amendment rights in schools (Rep. Casey Carpenter) o Awaiting hearing by House Education committee • HB 133–– Requiring a course of study in sex education and HIV/AIDS (Rep. Jasmine Clark) o Awaiting hearing by House Health and Human Services Committee

FAMILY LAW

• HB 543–– Domestic relations; equitable caregivers; provide (Rep. Chuck Efstration; Sen. Randy Robertson) o Signed into law; Effective date July 1, 2019

-2- 19 LC 119 0677

House Resolution 822 By: Representatives Park of the 101st, Drenner of the 85th, Cannon of the 58th, Shannon of the 84th, Wilson of the 80th, and others

A RESOLUTION

1 Commemorating the 50th anniversary of the Stonewall Inn Movement; and for other 2 purposes.

3 WHEREAS, on June 28, 1969, the Stonewall Inn became the birthplace for equal dignity and 4 freedom for millions of oppressed and marginalized Americans around the country; and

5 WHEREAS, those who took a stand for human rights and dignity at the Stonewall Inn were 6 pioneers of the LGBTQ movement, including two transgender women of color, Sylvia Rivera 7 and Marsha P. Johnson; and

8 WHEREAS, the courage and conviction of those who stood for the freedom and liberation 9 of the oppressed and marginalized inspired countless others to do the same, leading to the 10 formation of the first LGBTQ organizations in the United States; and

11 WHEREAS, during the past 50 years, the United States has made great strides toward 12 ensuring the equal rights and dignity of LGBTQ Americans, which include the right to 13 privacy, the freedom from discrimination, and the right to marry; and

14 WHEREAS, the LGBTQ community will come together in solidarity to mark the 50th 15 anniversary of the Stonewall Inn Movement in 2019 to celebrate the progress we have made 16 and acknowledge the work that still remains to be done to live up to our founding principles 17 that all Americans are created equal.

18 NOW, THEREFORE, BE IT RESOLVED BY THE HOUSE OF REPRESENTATIVES that 19 the members of this body commemorate the 50th anniversary of the Stonewall Inn 20 Movement and recognize that LGBTQ rights are human rights.

H. R. 822 - 1 - 19 LC 119 0677

21 BE IT FURTHER RESOLVED that the Clerk of the House of Representatives is authorized 22 and directed to make appropriate copies of this resolution available for distribution to the 23 public and the press.

H. R. 822 - 2 - 19 LC 47 0124S

House Bill 426 (COMMITTEE SUBSTITUTE) By: Representatives Efstration of the 104th, Smyre of the 135th, Bennett of the 94th, Silcox of the 52nd, Drenner of the 85th, and others

A BILL TO BE ENTITLED AN ACT

1 To amend Article 1 of Chapter 10 of Title 17 of the Official Code of Georgia Annotated, 2 relating to procedure for sentencing and imposition of punishment, so as to repeal certain 3 provisions regarding the sentencing of defendants for crimes involving bias or prejudice; to 4 provide criteria for imposition of punishment for defendants who select their victims based 5 upon certain biases or prejudices; to provide the sanctions for such crimes; to provide for 6 related matters; to repeal conflicting laws; and for other purposes.

7 BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

8 SECTION 1. 9 Article 1 of Chapter 10 of Title 17 of the Official Code of Georgia Annotated, relating to 10 procedure for sentencing and imposition of punishment, is amended by repealing Code 11 Section 17-10-17, relating to sentencing of defendants guilty of crimes involving bias or 12 prejudice, circumstances, and parole, in its entirety and inserting in lieu thereof a new Code 13 section to read as follows: 14 "17-10-17. 15 (a) Subject to the notice requirement provided in Code Section 17-10-18 and in 16 enhancement of the penalty imposed, if the trier of fact determines beyond a reasonable 17 doubt that the defendant intentionally selected any victim or group of victims or any 18 property as the object of the offense because of the actual or perceived race, color, religion, 19 national origin, sexual orientation, gender, mental disability, or physical disability of such 20 victim or group of victims, the judge imposing sentence shall: 21 (1) If the offense for which the defendant was convicted is a misdemeanor, impose a 22 sentence of imprisonment for a period of not less than three nor more than 12 months, 23 and a fine not to exceed $5,000.00; 24 (2) If the offense for which the defendant was convicted is a misdemeanor of a high and 25 aggravated nature, impose a sentence of imprisonment for a period of not less than six nor 26 more than 12 months, and a fine not to exceed $5,000.00; or

H. B. 426 (SUB) - 1 - 19 LC 47 0124S

27 (3) If the offense for which the defendant was convicted is a felony, impose a sentence 28 of imprisonment for a period of not less than two years. 29 (b) The judge shall state when he or she imposes the sentence the amount of the increase 30 of the sentence based on the application of subsection (a) of this Code section."

31 SECTION 2. 32 All laws and parts of laws in conflict with this Act are repealed.

H. B. 426 (SUB) - 2 - 19 LC 34 5542

House Bill 580 By: Representatives Wilson of the 80th, Oliver of the 82nd, Hutchinson of the 107th, Buckner of the 137th, Gardner of the 57th, and others

A BILL TO BE ENTITLED AN ACT

1 To amend Title 43 of the Official Code of Georgia Annotated, relating to professions and 2 businesses, so as to prohibit the practice of conversion therapy; to provide for related matters; 3 to provide for an effective date; to repeal conflicting laws; and for other purposes.

4 BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

5 SECTION 1. 6 Title 43 of the Official Code of Georgia Annotated, relating to professions and businesses, 7 is amended by adding a new Code section in Chapter 10A, relating to professional 8 counselors, to read as follows: 9 "43-10A-22.1. 10 (a) This Code section shall be known and may be cited as the 'Youth Mental Health 11 Protection Act.' 12 (b) As used in this Code section, the term 'conversion therapy' means any practice or 13 treatment that seeks to change an individual's sexual orientation or gender identity, 14 including efforts to change behaviors or gender expressions or to eliminate or reduce sexual 15 or romantic attractions or feelings toward individuals of the same gender. Conversion 16 therapy shall not include counseling that provides assistance to a person undergoing gender 17 transition, or counseling that provides acceptance, support, and understanding of a person 18 or facilitates a person's coping, social support, and identity exploration and development, 19 including interventions to prevent or address unlawful conduct or unsafe sexual practices, 20 as long as such counseling is applied neutrally as to a person's sexual orientation and 21 gender identity and does not seek to change an individual's sexual orientation or gender 22 identity. 23 (c) A person who is authorized to provide counseling under this chapter shall not engage 24 in conversion therapy with a person under 18 years of age. Any instance of engaging in 25 conversion therapy shall be considered unprofessional conduct and shall subject the 26 practitioner to discipline by the appropriate licensing authority."

H. B. 580 - 1 - 19 LC 34 5542

27 SECTION 2. 28 Said title is further amended by adding a new Code section in Chapter 34, relating to 29 physicians, to read as follows: 30 "43-34-22.1. 31 (a) This Code section shall be known and may be cited as the 'Youth Mental Health 32 Protection Act.' 33 (b) As used in this Code section, the term 'conversion therapy' means any practice or 34 treatment that seeks to change an individual's sexual orientation or gender identity, 35 including efforts to change behaviors or gender expressions or to eliminate or reduce sexual 36 or romantic attractions or feelings toward individuals of the same gender. Conversion 37 therapy shall not include counseling that provides assistance to a person undergoing gender 38 transition, or counseling that provides acceptance, support, and understanding of a person 39 or facilitates a person's coping, social support, and identity exploration and development, 40 including interventions to prevent or address unlawful conduct or unsafe sexual practices, 41 as long as such counseling is applied neutrally as to a person's sexual orientation and 42 gender identity and does not seek to change an individual's sexual orientation or gender 43 identity. 44 (c) A person who is authorized to provide counseling under this chapter shall not engage 45 in conversion therapy with a person under 18 years of age. Any instance of engaging in 46 conversion therapy shall be considered unprofessional conduct and shall subject the 47 practitioner to discipline by the appropriate licensing authority."

48 SECTION 3. 49 Said title is further amended by adding a new Code section in Chapter 39, relating to 50 psychologists, to read as follows: 51 "43-39-6.1. 52 (a) This Code section shall be known and may be cited as the 'Youth Mental Health 53 Protection Act.' 54 (b) As used in this Code section, the term 'conversion therapy' means any practice or 55 treatment that seeks to change an individual's sexual orientation or gender identity, 56 including efforts to change behaviors or gender expressions or to eliminate or reduce sexual 57 or romantic attractions or feelings toward individuals of the same gender. Conversion 58 therapy shall not include counseling that provides assistance to a person undergoing gender 59 transition, or counseling that provides acceptance, support, and understanding of a person 60 or facilitates a person's coping, social support, and identity exploration and development, 61 including interventions to prevent or address unlawful conduct or unsafe sexual practices, 62 as long as such counseling is applied neutrally as to a person's sexual orientation and

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63 gender identity and does not seek to change an individual's sexual orientation or gender 64 identity. 65 (c) A person who is authorized to provide counseling under this chapter shall not engage 66 in conversion therapy with a person under 18 years of age. Any instance of engaging in 67 conversion therapy shall be considered unprofessional conduct and shall subject the 68 practitioner to discipline by the appropriate licensing authority."

69 SECTION 4. 70 This Act shall become effective on July 1, 2019.

71 SECTION 5. 72 All laws and parts of laws in conflict with this Act are repealed.

H. B. 580 - 3 -

Findings from The Trevor Project’s National Survey on LGBTQ Mental Health

With over 34,000 respondents, it is the largest survey of LGBTQ youth mental health ever conducted:

In the last 12 months, the survey finds:

 39% of respondents seriously considered attempting suicide  More than half of transgender and non- binary youth have seriously considered attempting suicide  Over 18% of respondents attempted suicide  29% of transgender and non-binary youth respondents have attempted suicide

All children in Georgia should receive care that first, does no harm

 Converse is a coalition of state and national organizations advocating for passage of legislation (HB 580) that protects minors from being subjected to conversion therapy by mental health professionals licensed in Georgia.

 Conversion therapy has no scientific basis, is opposed by all major medical organizations and puts young people at risk of serious harm, including severe depression and increased risk of suicide attempts.

 HB 580 lawfully regulates the provision of health care to the most vulnerable of our citizens – our children. HB 580 prohibits mental health professionals licensed by the State of Coalition for Safe and Supported Children Georgia from providing conversion therapy to minors. Conversion therapy Pass HB 580 refers to practices or treatments that seek to change an individual’s sexual American Academy of Pediatrics American Association of orientation or gender identity. – Georgia Chapter Suicidology Every major medical organization opposes conversion therapy. Why? American Foundation for Suicide Barton Child Law and Policy Because conversion therapy practices have no scientific basis and Prevention – Georgia Chapter Center contradict the consensus understanding of sexual orientation and gender Bazelon Center for Mental Health Children's Rights identity. Law Most of all, conversion therapy puts minors at an increased risk of serious Faith in Public Life Georgia Georgia Council for Child & harm, including severe depression, anxiety, and substance misuse, and Adolescent Psychiatry contributes to an elevated risk of suicide. Georgia Council on Substance Georgia Equality Abuse Conversion therapy is associated with higher rates of attempted Georgia Parent Support Network Georgia Psychiatric Physicians suicide. In a national study, The Trevor Project recently found 42% of Association LGBTQ youth who underwent conversion therapy reported a suicide attempt Georgia Psychological Georgia Safe Schools Coalition in the past year. For transgender youth undergoing conversion therapy, it Association was 57%. Georgia Society for Clinical Georgians for a Healthy Future Georgia has a compelling interest in protecting the physical and Social Work psychological well-being of its minors. GLAAD GLSEN HRC (Human Rights Campaign) Lambda Legal  As the Supreme Court has held, “A democratic society rests, for its continuance, upon the healthy well-rounded growth of young Lost-N-Found Youth Medical Association of Georgia people into full maturity as citizens.” MHA of Georgia NAMI Georgia  Consequently, the Supreme Court “ha[s] sustained legislation National Center for Transgender National Center for Lesbian aimed at protecting the physical and emotional well-being of youth Equality Rights even when the laws have operated in the sensitive area of Pediatric Endocrine Society PFLAG National

constitutionally protected rights. Reconciling Ministries Network SOJOURN The Trevor Project Trans Lifeline Voices for Georgia's Children

HB 580 does not apply to clergy or to individuals who provide religious instruction, nor does it prevent anyone from publishing, discussing, or advocating any viewpoints or beliefs regarding sexual orientation or gender identity.

For Georgians who believe that sexual orientation and gender identity are a matter of choice, HB 580 requires no change in that belief.

HB 580 requires no change in a person’s fundamental religious beliefs; rather, it provides time and space to ensure that our children “have life and have it more abundantly.” 19 HB 543/AP

House Bill 543 (AS PASSED HOUSE AND SENATE) By: Representatives Efstration of the 104th, Oliver of the 82nd, Wilensky of the 79th, and Rich of the 97th

A BILL TO BE ENTITLED AN ACT

1 To amend Article 1 of Chapter 7 of Title 19 of the Official Code of Georgia Annotated, 2 relating to general provisions regarding parent and child relationship generally, so as to 3 provide for equitable caregivers; to provide for standing and adjudication; to provide for a 4 statutory form; to provide for related matters; to repeal conflicting laws; and for other 5 purposes.

6 BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

7 SECTION 1. 8 Article 1 of Chapter 7 of Title 19 of the Official Code of Georgia Annotated, relating to 9 general provisions regarding parent and child relationship generally is amended by adding 10 a new Code section to read as follows: 11 "19-7-3.1. 12 (a) The court may adjudicate an individual to be an equitable caregiver. 13 (b) An individual seeking to be adjudicated an equitable caregiver of a child under this 14 Code section may establish standing to maintain the action in accordance with the 15 following: 16 (1) File with the initial pleading an affidavit alleging under oath specific facts to support 17 the existence of an equitable caregiver relationship with the child as set forth in 18 subsection (d) of this Code section. The pleadings and affidavit shall be served upon all 19 parents and legal guardians of the child and any other party to the proceeding; 20 (2) An adverse party, parent, or legal guardian who files a pleading in response to the 21 pleadings in paragraph (1) of this subsection shall also file an affidavit in response, 22 serving all parties to the proceeding with a copy; 23 (3) The court shall determine on the basis of the pleadings and affidavits pursuant to 24 paragraphs (1) and (2) of this subsection whether such individual has presented prima 25 facie evidence of the requirements set forth in subsection (d) of this Code section. The

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26 court may in its sole discretion, if necessary and on an expedited basis, hold a hearing to 27 determine undisputed facts that are necessary and material to the issue of standing; and 28 (4) If the court's determination under paragraph (3) of this subsection is in the 29 affirmative, the party claiming to be an equitable caregiver has standing to proceed to 30 adjudication under subsection (d) of this Code section. 31 (c) A document substantially in the following form may be used to create a pleading and 32 affidavit for purposes of paragraph (1) of subsection (d) of this Code section:

33 'IN THE ______COURT OF ______COUNTY 34 STATE OF GEORGIA

35 A.B., 36 ______) 37 Plaintiff ) 38 ) 39 v. ) Civil Action 40 ) File no. ______41 C.D., 42 ______) 43 Defendant )

44 COMPLAINT

45 The defendant C.D., herein named, is a resident of ______(street), 46 ______, (city) ______County, Georgia, and is subject to the 47 jurisdiction of this court.

48 As of ______(date), Plaintiff can fully demonstrate to the court that: 49 (1) Plaintiff has fully and completely undertaken a permanent, unequivocal, 50 committed, and responsible parental role in the child's life; 51 (2) Engaged in consistent caretaking of the child; 52 (3) Established a bonded and dependent relationship with the child, the relationship 53 was fostered or supported by a parent of the child, and such individual and the 54 parent have understood, acknowledged, or accepted or behaved as though such 55 individual is a parent of the child; and 56 (4) Accepted full and permanent responsibilities as a parent of the child without 57 expectation of financial compensation.

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58 The facts of the case are: 59 1. ______60 2. ______61 3. ______62 4. ______

63 ______64 Dated Pro Se Applicant 65 ______66 Address 67 ______68 Address

69 (CERTIFICATE OF SERVICE)'

70 'AFFIDAVIT OF PETITIONER

71 STATE OF GEORGIA 72 COUNTY OF ______

73 Personally appeared before me, the undersigned officer duly authorized to administer oaths, 74 ______, who, after having been sworn, deposes, and says as follows:

75 That my name is: ______

76 That my address is: ______

77 These are the facts to support the existence of an equitable caregiver relationship with a 78 child as set forth in subsection (c) of O.C.G.A. 19-7-3.1:

79 ______80 Dated Pro Se Applicant 81 ______82 Address 83 ______84 Address

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85 Sworn to and subscribed 86 Before me this ______87 Day of ______, ______. 88 ______89 Notary public (SEAL)

90 My commission expires: ______' 91 (d) In order to establish standing, the court shall first find, by clear and convincing 92 evidence, that the individual has: 93 (1) Fully and completely undertaken a permanent, unequivocal, committed, and 94 responsible parental role in the child's life; 95 (2) Engaged in consistent caretaking of the child; 96 (3) Established a bonded and dependent relationship with the child, the relationship was 97 fostered or supported by a parent of the child, and such individual and the parent have 98 understood, acknowledged, or accepted or behaved as though such individual is a parent 99 of the child; 100 (4) Accepted full and permanent responsibilities as a parent of the child without 101 expectation of financial compensation; and 102 (5) Demonstrated that the child will suffer physical harm or long-term emotional harm 103 and that continuing the relationship between such individual and the child is in the best 104 interest of the child. 105 (e) In determining the existence of harm, the court shall consider factors related to the 106 child's needs, including, but not limited to: 107 (1) Who are the past and present caretakers of the child; 108 (2) With whom has the child formed psychological bonds and the strength of those 109 bonds; 110 (3) Whether competing parties evidenced an interest in, and contact with, the child over 111 time; and 112 (4) Whether the child has unique medical or psychological needs that one party is better 113 able to meet. 114 (f) A court may grant standing on an individual seeking to be adjudicated as an equitable 115 caregiver on the basis of the consent of the child's parent for such individual to have a 116 parental relationship with the child, or on the basis of a written agreement between the 117 individual seeking to be adjudicated as an equitable caregiver and the child's parent, 118 indicating an intention to share or divide caregiving responsibilities for the child. 119 (g) The court may enter an order as appropriate to establish parental rights and 120 responsibilities for such individual, including, but not limited to, custody or visitation.

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121 (h) This Code section shall not authorize an original action when both parents of the minor 122 child are not separated and the child is living with both parents. 123 (i) This Code section shall not authorize an original action by an individual whose 124 relationship with the child was established as a result of a proceeding under Article 3 of 125 Chapter 11 of Title 15 and shall not authorize an original action so long as the Division of 126 Family and Children Services of the Department of Human Services has an open child 127 welfare and youth services case involving such child or his or her parent. 128 (j) The adjudication of a person under this Code section as an equitable caregiver does not 129 disestablish the parentage of any other parent."

130 SECTION 2. 131 All laws and parts of laws in conflict with this Act are repealed.

H. B. 543 - 5 - HOT TOPICS, CITIZENSHIP AND IMMIGRATION

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APPENDIX

<< Back to Table of Contents ICLE BOARD

NAME POSITION TERM EXPIRES

Ms. Carol V. Clark Member 2022

Mr. Harold T. Daniel, Jr. Member 2022

Ms. Laverne Lewis Gaskins Member 2021

Hon. Kenneth Bryant Hodges, III Member 2020

Ms. Allegra J. Lawrence Member 2022

Mr. C. James McCallar, Jr. Member 2021

Mrs. Jennifer Campbell Mock Member 2020

Mr. Kenneth L. Shigley Member 2020

Mr. A. James Elliott Emory University 2020

Mr. Buddy M. Mears John Marshall 2020

Dean Daisy Hurst Floyd Mercer University 2020

Mr. Cassady Vaughn Brewer Georgia State University 2020

Ms. Carol Ellis Morgan University of Georgia 2020

Hon. John J. Ellington Liaison 2020

Mr. Jeffrey Reese Davis Staff Liaison 2020

Ms. Michelle E. West Staff Liaison 2020 GEORGIA MANDATORY CLE FACT SHEET

Every “active” attorney in Georgia must attend 12 “approved” CLE hours of instruction annually, with one of the CLE hours being in the area of legal ethics and one of the CLE hours being in the area of professionalism. Furthermore, any attorney who appears as sole or lead counsel in the Superior or State Courts of Georgia in any contested civil case or in the trial of a criminal case in 1990 or in any subsequent calendar year, must complete for such year a minimum of three hours of continuing legal education activity in the area of trial practice. These trial practice hours are included in, and not in addition to, the 12 hour requirement. ICLE is an “accredited” provider of “approved” CLE instruction.

Excess creditable CLE hours (i.e., over 12) earned in one CY may be carried over into the next succeeding CY. Excess ethics and professionalism credits may be carried over for two years. Excess trial practice hours may be carried over for one year. A portion of your ICLE name tag is your ATTENDANCE CONFIRMATION which indicates the program name, date, amount paid, CLE hours (including ethics, professionalism and trial practice, if any) and should be retained for your personal CLE and tax records. DO NOT SEND THIS CARD TO THE COMMISSION!

ICLE will electronically transmit computerized CLE attendance records directly into the Official State Bar Membership computer records for recording on the attendee’s Bar record. Attendees at ICLE programs need do nothing more as their attendance will be recorded in their Bar record.

Should you need CLE credit in a state other than Georgia, please inquire as to the procedure at the registration desk. ICLE does not guarantee credit in any state other than Georgia. If you have any questions concerning attendance credit at ICLE seminars, please call: 678-529-6688 Follow ICLE on Social Media facebook.com/iclega linkedin.com/company/iclega twitter.com/iclega

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