An increasing number of laws, court decisions, and policies address issues related to gender identity. Transgender people have specialized legal needs in many areas, including employment, family, education, health care, housing, and criminal law. Attorneys representing transgender clients have an obligation to learn about transgender identity and the needs of this population in order to effectively advocate for them. This also applies to those representing corporations, nonprofit organizations, and public entities as they provide advice and represent their clients’ interests.

THE NEED FOR EFFECTIVE REPRESENTATION

Transgender adults and youth experience high rates of:

• homelessness, being mistreated in or denied access to shelters, evictions, and denial of housing.
• discrimination in the workplace, including verbal and sexual harassment, being physically and sexually assaulted, denied employment, and being fired.
• denial of equal treatment or service, verbal harassment, or physical attacks at many places of public accommodation.
• mistreatment and harassment by law enforcement and in jails and prisons.
• discrimination and harassment in health care, including denial of coverage, denial of care, and harassment and sexual assault while seeking routine care or gender transition treatment.¹

One of the largest studies of transgender people found that 81.7% of respondents seriously thought about suicide and 40.4% attempted suicide. Those who had been victims of violence or experienced discrimination or mistreatment in education, employment, housing, health care, public accommodations, or from law enforcement had a higher incidence of suicidal thoughts and attempts.² Transgender people of color, those with disabilities, and those in other marginalized groups experience higher rates of discrimination, harassment, and violence.³

LANGUAGE AND CONCEPTS

Practitioners should understand the terminology and medical science pertaining to gender identity. Language has evolved to reflect advances in understanding gender identity. These terms are used in health care, social science, and are increasingly found in legal briefs, case law, law review articles, corporate policies, employee handbooks, and customer-service training. This knowledge will create an attorney-client relationship based on trust and respect, facilitate constructive communication, and lead to a more thorough understanding of the facts in the case.

“Gender expression” is a term used to describe a person’s outward presentation of their gender, including their physical appearance and behaviors. “Gender identity” refers to one’s internal understanding of one’s own gender or the gender with which a person identifies. Gender identity is distinct from sexual orientation. A person’s gender does not determine a person’s sexual orientation.⁴

“Sex” refers to a person’s biological status and is typically categorized as male, female, or intersex. Sex determinations made at birth are typically based solely on the observation of external genitalia.⁵ However, “biological sex is determined by numerous elements, which can include chromosomal composition, internal reproductive organs, external genitalia, hormone prevalence, and brain structure.”⁶ “Intersex” refers to people born with anatomy which is not clearly female or male.⁷ “Nonbinary” refers to a person who identifies with a gender identity that is neither entirely male nor entirely female.⁸ Nonbinary identity reflects a person’s relationship to social expectations or their biological relationship to the female/ male binary.⁹ A person who identifies as nonbinary may or may not also identify as transgender. In a footnote to People v. Gobrick, the Michigan Court of Appeals addressed the use of the nonbinary pronouns “they” and “them,” stating:

… defendant’s appellate brief indicates that defendant identifies as female and prefers to be referred to using the nonbinary pronouns they and them. … Like the prosecution, we choose to honor defendant’s request as well. Thus, apart from references to the record that use the pronouns he/him, we use the they/them pronouns where applicable.

All individuals deserve to be treated fairly, with courtesy and respect, without regard to their race, gender, or any other protected personal characteristic. Our use of nonbinary pronouns respects defendant’s request and has no effect on the outcome of the proceedings.¹⁰

“Transgender” is an umbrella term for persons whose gender identity or expression (masculine, feminine, other) is different from the sex they were assigned at birth. A transgender man is a person who was designated, or assigned, as female at birth but has a male gender identity. A transgender woman is a person who was designated, or assigned, as male at birth but has a female gender identity. “Cisgender” describes a person whose gender identity aligns with the sex assigned to them at birth.¹¹

“Gender dysphoria” is a condition characterized by debilitating distress and anxiety caused by a discrepancy between a person’s gender identity and their sex assigned at birth.¹² The World Professional Association for Transgender Health (WPATH), the widely accepted authority on transgender health care, publishes standards of care for treating gender dysphoria.¹³

“Transition,” also called “gender confirmation,” refers to steps a transgender person takes to live consistently with their gender identity. It may include changes in clothing, hair style, adopting a new name, changing sex designation on identity documents, and medical treatment such as hormone therapy or other procedures.¹⁴

The degree of transition and the need for medical treatment is unique to each person. Also, some people require surgical treatment but cannot afford or otherwise gain access to it. Transition treatment is private medical information. Disclosure could violate one or more state or federal laws.¹⁵

Attorneys should refrain from asking transgender clients whether they have had medical transition treatment unless it is relevant to representation. Prior to asking about medical treatments, attorneys should review the WPATH standards of care.

GENDER MARKERS

“Gender marker” is a term used to describe a person’s gender identity on documents such as a driver’s license, birth certificate, or passport. Transgender individuals who do not have an ID consistent with their gender identity are vulnerable to discrimination, harassment, and violence. The lack of an appropriate ID can negatively impact mental health¹⁶ and create obstacles as they engage in actions such as banking, voting, reporting a crime, and handling traffic stops.

Many laws and administrative procedures have been passed to facilitate the changing of gender markers on government documents. As of November 2021, in Michigan a person can designate nonbinary (“X”) as their sex marker on their driver’s license or state identification document.¹⁷ The Michigan Secretary of State (SOS) also has a sex designation form which allows transgender persons to change their gender marker by swearing, under penalty of perjury, that the purpose of the change is to accurately reflect their identity and not for fraudulent or illegal purposes. The SOS will also take an updated photo. The process does not require any supporting documents.

A transgender person’s adoption of a new name is often critical to their identity. Changing a name on a license or state ID requires the person to present either a certified copy of a name change court order or marriage license. The term “dead name” refers to the name given to the transgender person at birth.

In 2000, Michigan’s name change law was amended to address the safety concerns of some people seeking a change.¹⁸ Based on good cause, the court has discretion to waive the publication requirement of the law and order that the record of the proceeding be confidential.¹⁹ Good cause includes, but is not limited to, evidence that the name change procedure might place the petitioner in physical danger.²⁰ Petitions should include any concerns about stalking, violence, harassment, or discrimination such as losing their employment or housing, and provide statistics establishing that transgender people are often assaulted or attacked solely because of their gender identity. In addition, attorneys should point out that publication could lead indirectly to disclosure of private medical information.

After obtaining a court-ordered name change, a person can get a new birth certificate reflecting their name and a sex designation other than what was assigned at birth. The statute, however, states that the request “shall be accompanied by an affidavit of a physician certifying that sex-reassignment surgery has been performed.”²¹ Michigan Attorney General Dana Nessel issued an opinion concluding that this requirement violates the equal protection clauses of the Michigan and United States constitutions.²² Nessel noted that when issuing passports:

Even the U.S. Department of State requires only that the individual have received “appropriate clinical treatment for transition” in order to change the sex marker on their individual passport, and gives physicians the discretion to determine what clinical treatment is “appropriate” for each individual.²³

Attorney general opinions are binding on state agencies and officers but not on the courts.²⁴

BOSTOCK AND BEYOND

Federal and state efforts to prohibit transgender discrimination have proceeded in a patchwork manner. In the landmark case Bostock v Clayton County, the U.S. Supreme Court ruled that employment discrimination based on a person’s sexual orientation or gender identity constitutes sex discrimination in violation of Title VII of the Civil Rights Act of 1964. The Court reasoned:

By discriminating against homosexuals, the employer intentionally penalizes men for being attracted to men and women for being attracted to women. By discriminating against transgender persons, the employer unavoidably discriminates against persons with one sex identified at birth and another today. Any way you slice it, the employer intentionally refuses to hire applicants in part because of the affected individuals’ sex.²⁵

The decision applies to the private sector, state and local governments, employment agencies, and labor organizations, and has led to other protections.

Early in 2021, President Joe Biden issued an executive order directing agencies to enforce federal laws that prohibit sex discrimination to include discrimination based on sexual orientation and gender identity consistent with Bostock. The order applies to discrimination in employment, education, housing, health care, and credit.²⁶ Section 1557 of the Affordable Care Act prohibits discrimination on the bases of race, color, national origin, sex, age, and disabilities. In May 2021, pursuant to the order, the U.S. Department of Health and Human Services announced it will interpret and enforce the Section 1557 prohibition on discrimination on the basis of sex to include discrimination based on gender identity and sexual orientation.²⁷

In 2019, Gov. Gretchen Whitmer issued an executive directive prohibiting state agencies from discriminating based on gender identity, gender expression, or sexual orientation, and requiring equal opportunity in state employment, state contracts, grants and loans, and provision of state services.²⁸

There are numerous efforts to create federal and state consistency in prohibiting discrimination based on gender identity, gender expression, sexual orientation, and other areas. A bill in Congress referred to as the Equality Act would prohibit discrimination against people based on their sexual orientation or gender identity in employment, housing, credit, education, public spaces and services, federally funded programs, and jury service.²⁹

The Michigan Elliott-Larsen Civil Rights Act (ELCRA), MCL 37.2101, prohibits discrimination based on religion, race, color, national origin, age, sex, height, weight, familial status, or marital status. In 2018, the Michigan Civil Rights Commission determined that discrimination because of “sex” as used in the ELCRA includes discrimination based on gender identity and sexual orientation.³⁰ A bill pending in the state legislature would add sexual orientation and gender identity as protected classes in ELCRA.³¹ Significantly, the Michigan Supreme Court will decide the same question this term upon review of Rouch World v Michigan Dep’t of Civil Rights (Docket No 162482).

In August 2021, the reasoning in Bostock led to an important interpretation of Michigan’s criminal hate crime law. The crime referred to as ethnic intimidation prohibits certain criminal acts involving physical contact or destruction of property where the person acts with malice and a “specific intent to intimidate or harass another person because of that person’s race, color, religion, gender, or national origin.”³² In People v Rogers, the Michigan Court of Appeals considered a case where the defendant made derogatory remarks about a transgender woman, pulled out a gun, and threatened to kill her. The victim was shot when she grabbed the defendant’s arm in self-defense. The suspect asked the trial court to quash the charges against him for shooting the victim because he engaged in the criminal behavior on the basis that he believed the victim to be male.³³ The Court of Appeals ruled that the trial court erred by granting defendant’s motion.

FIRST AMENDMENT

In Masterpiece Cakeshop, Ltd v Colo Civ Rights Comm’n, 584 US     ; 138 S Ct 1719; 201 L Ed 2d 35 (2018), the U.S. Supreme

Court held that based on the free exercise of religion clause, a baker did not unlawfully discriminate against a same-sex couple when he refused to make a cake for their wedding because of his religious beliefs. In Meriwether v Hartop, a state university professor was disciplined for failing to use a pronoun that reflected the student’s gender identity. The professor stated that the pronoun policy violated his belief that “God created human beings as either male or female, that this sex is fixed in each person from the moment of conception, and that it cannot be changed, regardless of an individual’s feeling or desires.”³⁴ Relying in part on Masterpiece, the U.S. Court of Appeals for the Sixth Circuit overturned the district court’s dismissal of the professor’s free speech and free exercise claims and remanded the case to the trial court.

EIGHTH AMENDMENT

In Edmo v Corizon, Inc., the U.S. Court of Appeals for the Ninth Circuit held:

“… where, as here, the record shows that the medically necessary treatment for a prisoner’s gender dysphoria is gender confirmation surgery, and responsible prison officials deny such treatment with full awareness of the prisoner’s suffering, those officials violate the Eighth Amendment’s prohibition of cruel and unusual punishment.³⁵

The opinion in Edmo contains detailed information and sources regarding gender dysphoria. The First Circuit adopted a case-by-case approach similar to the Ninth Circuit.³⁶ This approach has also been adopted by the Michigan Department of Corrections.³⁷ However, the Fifth Circuit concluded that a blanket ban of gender reassignment surgery does not violate the Eighth Amendment.³⁸

OTHER CONSIDERATIONS

Lawyers representing transgender clients should take the lead in educating others involved in the case.³⁹ Where applicable, court and alternative dispute resolution documents and oral arguments should include references to sources which include definitions, statistics, mental and physical health care information and standards, and other information necessary for effective representation. As always, make a compete record. Many issues affecting transgender people will continue to be decided at the appellate level.

Sharing a resource or a client’s current name with opposing counsel in an informal manner improves the opportunity for a successful resolution of the dispute or, at a minimum, reduces the potential for a case to be unnecessarily sidetracked. Consider applicable jury instructions.

Many attorneys were motivated to become lawyers due to the opportunity to make a difference in the lives of others. Providing competent representation for transgender people can serve that desire.