Human Rights at Home Blog

U.N. Human Rights Committee Offers Critical Recommendations for Transgender Rights in the United States

 

 

 

 

 

 

By: Nic Stelter, Student Fellow & Tamar Ezer, Acting Director Human Rights Clinic, University of Miami School of Law

As we mark the end of Transgender Awareness Month, the United States needs to take a hard look at rampant discrimination against transgender communities. Since 2019, laws violating transgender rights have swept the country:

• 14 states limit discussion of LGBTQ+ issues in schools and prohibit the use of transgender students’ names and pronouns.
• In 9 states, transgender individuals are prohibited from using the bathroom that corresponds with their gender identity in schools, as well other public spaces in some cases.
• 22 states ban at least some forms of gender-affirming health care for children, and 5 of these states punish gender-affirming care as a felony.
• In 23 states, transgender students are banned from participating in school sports consistent with their gender identity.
• We’ve seen book bans double with 45.5% of books targeted written by or about LGBTQ+ individuals.

Moreover, lawmakers have introduced over 500 more bills limiting transgender rights in just the last year.

Our Human Rights Clinic had the opportunity to support a coalition, including Human Rights Watch, Equality Florida, Florida Health Justice Project, Southern Legal Counsel, and Southern Poverty Law Center in advocacy before the United Nations (U.N.) Human Rights Committee, as it reviewed the U.S. for compliance with the International Covenant on Civil and Political Rights (ICCPR). This included submission of a shadow report on human rights violations against transgender communities, development of a factsheet, and oral presentations to the Committee.

Earlier this month, the Human Rights Committee released its Concluding Observations and underscored with concern “the increase of state legislation that severely restricts the rights of persons based on their sexual orientation or gender identity.” Additionally, it pointed to hate crimes and prevalent discrimination in access to housing, employment, and other services. The Committee found violations of the rights to equality and non-discrimination; freedom of expression; privacy; family; life; and freedom from torture and cruel, inhuman, and degrading treatment.

To prevent these abuses, the Human Rights Committee urged the U.S. to “adopt all measures necessary to ensure that state laws that discriminate against persons based on their sexual orientation and gender identity are repealed and that comprehensive legislative initiatives prohibiting discrimination on those grounds . . . are adopted at the federal, state, local and territorial levels.” The Committee further called on the U.S. to investigate harassment and violence against transgender individuals and make sure that “perpetrators are brought to justice and victims are provided with effective remedies and redress.”

It is time for the U.S. to heed the Committee’s recommendations. Its findings, as Human Rights Watch noted, are “a wake-up call for state and federal lawmakers.” As one of our partners, a former teacher and transgender resident of Florida, poignantly stated, “Trans people are humans too and deserve to live in this country.” Let’s make the U.S a place where everyone can live with dignity. We hope the Concluding Observations can serve as a tool in pushing this forward.

Texas Judge: Transgender Care is Not Child Abuse

By Co-Editor Prof. Justine Dunlap

About 34 states have introduced legislation that in some way restricts transgender youth from receiving appropriate health care. These legislative acts, if moved forward into laws, will kill people. They could result in death even short of becoming law. Trans youth have rates of depression and suicide that are 2-3 times higher than non-transgender youth. That is data prior to the pandemic, which has wreaked havoc on the mental health of youth across the board. Thus, living in a state that criminalizes the ability to access appropriate health care could have catastrophic impact on the lives of transgender youth. That’s first level heinousness.

Then there are the effects on those targeted by these bills. The bills may require that parents and health care providers be reported and investigated as child abusers. Parents and health care providers deserve praise not prosecution. Criminalizing them is also first level heinousness.

Most of the bills have not (yet) moved out of the legislature to become law. That’s what happened in Texas last spring, when the Texas legislature did not pass a bill illegalizing transgender care. Governor Greg Abbott, however, was not deterred. Last month he sent a letter to the state Department of Family and Protective Services instructing it to investigate as child abuse the act of providing or securing gender appropriate care.

Thank goodness, then, for Judge Amy Clark Meachum, a Texas state court judge who, on March 11, temporarily enjoined enforcement of this gubernatorial mandate. Judge Meachum enjoined this directive because, she opined, there is a substantial likelihood that it is ultra vires and unconstitutional. Also enjoined are the rules made and implemented by the Department of Family and Protective Services pursuant to Abbott’s directive.

Shortly after the ruling, the Texas attorney general asserted that the investigations would continue because he would appeal the decision.  The trial on the merits is set for July 11, 2022, but much legal wrangling seems inevitable before then. Lawyers and judges are used to such squabbles so the real fallout will be experienced by the transgender youth whose lives and very worth are being litigated.

Inter-American Court of Human Rights Finds Honduras Responsible for Trans Killing

By Chris Hegwood, 2L at St. Louis University School of Law

The Inter-American Court of Human Rights set new protections for trans people throughout the Americas in its judgment in the case of Vicky Hernández et al. v. Honduras.  In its ruling, the Inter-American Court of Human Rights found the State of Honduras to be responsible for the death of Vicky Hernández, a transgender sex worker woman and activist who was found murdered following her evasion of an attempted arrest by police patrol the night of June 28, 2009.

The Court found numerous indications of the State’s role in the violating Vicky Hernández’s right to life, personal integrity, and her right to gender identity. The Court found a lack of due diligence in the authority’s investigation into the murder, failure to consider the context of discriminatory practices and police violence against LGBTI persons and trans women sex workers. The Court also found that Vicky Hernández’s relatives right to a life free of violence was violated.

In response to these violations, the Court ordered eight reparations that included promoting and continuing Vicky Hernández’s murder investigation, performing a public act of recognition of international responsibility, establishing a scholarship in Vicky Hernández’s name for trans women, and several procedural undertakings which are enumerated in the Court’s press release.

Transgender Update

March 31st was transgender visibility day.  With the national focus on COVID-19, we see and hear less news about the ongoing personal and legislative attacks on sexual minorities. An earlier post addressed the restriction of human rights during the epidemic and the danger that the restricted rights will not be restored.  This is also a time when harmful actions unrelated to COVID-19 are being attempted while the disease diverts our attention.

Idaho is an example of enacting insidious anti-transgender laws. As trans people prepared to celebrate Visibility Day, Indiana Governor Brad Little signed anti-transgender legislation into law.  One bill prohibits transgender women and girls from participating in sports consistent with their gender identity.    The second bill forbids transgender and non-binary people from changing the gender markers on their birth certificates. 

Even if the laws are found to be unconstitutional, they achieve the underlying purpose of raising anti-trans hostility.  Similar bills are introduced in other states. So long as anti-transgender publicity has momentum, discrimination and violence against trans and non-binary people will escalate.  

While our mobility may be determined by COVID-19, our advocacy should not be.  

 

 

SCOTUS TO HEAR N.C. TRANSGENDER CASE

In what should prove to be a much watched and written about case, the Supreme Court accepted for hearing the North Carolina case Gloucester County School Board v. GG.   Gloucester was discussed earlier on this blog, when the case first appeared on the Supreme Court docket requesting a stay of implementation of the N.C. law that would have permitted high school students to use the bathroom of the gender with which they identify.  We reported that Justice Breyer wrote at that time that his vote for a stay was a "courtesy".  Befuddled at the time, it appears that we may discover the meaning of this "courtesy".  The case involves, in part, a Department of Education's interpretation of Title IX that funding recipients must provide separate facilities and treat transgender students consistent with their gender identity. 

This case will be significant in the LGBT journey to assign sexual identity suspect classification status. 

In the meantime, an Illinois Federal court decided that Title IX protects transgender students in using locker and bathrooms in accordance with their gender identity.  Of significance is the Judge's finding that "High school students do not have a constitutional right not to share restrooms or locker rooms with transgender students whose sex assigned at birth is different than theirs".  This language may be important to SCOTUS' decision if constitutional claims are made.

 

 

 

 

The Financial Cost of Hate

by Jeremiah Ho

The fall-out from the North Carolina anti-LGBT bill seems to continue. With the numerous businesses taking their ventures out of the state (including notables such as PayPal and Angie’s List) and big-name entertainers (Bruce Springsteen, the band Pearl Jam, and Ringo Starr) cancelling shows in North Carolina, the question of the economics of the business backlash is obviously inevitable.  According to a PBS Newshour’s piece that aired this week, the economic backlash based on cancelled conventions has cost the state at least $8 million dollars.  That’s not chump change, given that the bill (HB2) was passed only within the last two months.

The Williams Institute at the UCLA School of Law recently weighed in on the answer to the fiscal question for such anti-LGBT legislation—this time examining the fiscal impact of the Tennessee anti-LGBT bill (HB 2414) and the costs beyond the boycotts and backlash of private businesses. Instead, the Institute released a report this month that examines the fiscal impact from an administrative angle.  In sum, the researchers note that there are three major areas in which there would be negative financial impact to Tennessee with the bill in effect.  First the study notes that there might be a loss of federal educational funding of up to $1.2 billion annually as a result of Title IX violations.  Secondly, the loss of federal contracts to educational institutions could rise up to $3 million to $9 million annually as a result of violations of Executive Order 13672, which prohibits federal contractors that receive more than $10,000 in federal contracts annually from discriminating against their employees and job applicants based on gender identity.  Lastly, there likely will be costs incurred as a result of litigation and federal administrative enforcement.  The report can be found here.

If the report is accurate, then are these costs that both the citizens and the state of Tennessee will tolerate because of legislative intolerance? Is this a worthy cost of fear and hate?  

LGBT Update - Moving Forward With Irony

Last week the federal appeals court for the 4th Circuit ruled that a Virginia student could sue his school board for prohibiting him from using the bathroom matching his gender identity.  The Court found that the prohibition imposed upon Gavin Grimm violated Title IX.  The ruling, in what is generally considered a conservative state, may have influence in other states that are resistant to endorsing bathroom use by gender identity.   Among the states struggling to prevent  gender identity from deciding which bathroom is used are: South Dakota, Illinois, Texas and Mississippi.   A pathway  for the issue to arrive at the US Supreme Court perhaps?

And let's not forget North Carolina where activists against the newly enacted law restricting the rights of LGBT individuals were arrested for refusing to leave a state building where a demonstration was taking place.  However, the arrests could have been a major breakthrough for the activists. Whether intended or not, the situation is not without its irony, if not humor.  Mara Keisling, director of the National Center for Transgender Equality, was among those arrested.  Not only did she describe the arresting officers as respectful,  Ms. Keisling reported that transgender men were put into cells housing males while transgender women were housed in the women's cell.  Also, at the jail, arrestees used bathrooms that matched gender identity. 

All to prove that you cannot make this stuff up.

 

NY Human Rights Law and Troubling NY Transgender Policy

Last week Jeremiah Ho updated us on the status of anti-discrimination laws in the fifty states where discrimination is based on sexual identity.  New York was cited as one state that is close to enacting such protections.

In 1945, New York passed its first Human Rights law which bans discrimination on several grounds.  One section of the act  reads, for example: 

"It shall be an unlawful discriminatory practice for an employer or licensing agency, because of an individual's age, race, creed, color, national origin, sexual orientation, military status, sex, disability, predisposing genetic characteristics, marital status, or domestic violence victim status, to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment."

New York's Human Rights Commission, under Governor Cuomo's direction, proposes a way to extend protections explicitly to transgender individuals.  While well intended, the method of ensuring protections to transgender individuals is controversial.  The proposal "clarifies" that the gender discrimination definition include gender identity and the status of being transgender.  The method by which gender dysphoria is included in the classifications against whom discrimination is prohibited, is by categorizing gender dysphoria as a disability.  The characterization resurrects an argument that was raised during drafting and lobbying for the Americans with Disabilities Act.

Categorizing gender dysphoria as a disability has its critics and promoters.  On one hand, many transgender individuals may need assistance during periods of corrective surgery and other health care, resulting in what typically is a period of temporary disability.  Yet to categorize gender dysphoria as a disability absent significant physical or mental impairment is to undo progress that has been made in creating social acceptance for transgender and other gender non-conforming individuals. 

While gender dysphoria may lead to mental health disorders, such as depression and anxiety, those conditions result from a variety of responses an individual has based either on the dysphoria or others' reactions to the dysphoria.  The dysphoria itself should not be classified as a disability.  This attempt to classify as a disability a birth characteristic brings back memories of homosexuality being classified as a disorder in the Diagnostic and Statistical Manual of Mental Disorders (DSM).

Arguments prevail from differing view points.  For one perspective on this topic, see Kevin Barry's article Disability Queer.

 

.