Cultivated Compendium

Here's a piece I wrote for the Connecticut Law Tribune on the state of transgender rights:

Studying landmark cases may be a hallmark of a legal education, but there are times when the lack of case law may be a good thing.

In the three years since Connecticut enacted a law banning discrimination based on gender identity, James J. O'Neill, a spokesman for the Connecticut Commission on Human Rights and Opportunities, reports that the commission has not received a single discrimination complaint based on gender identity or expression.

The dearth of complaints to the state's civil rights regulators does not mean that transgender people and those who identify with or express themselves as members of the opposite sex do not face discrimination, advocates say. But the law is working to protect people in unofficial ways, said Rachel Goldberg, general counsel for the Stamford Urban Redevelopment Commission and a board member of the national Lambda Legal organization, which advocates for the civil rights of lesbians, gay men, bisexuals and transgender people.

As an advocate, Goldberg, who is transgender, testified in favor of the Connecticut law three years ago. As an attorney, she said she was able to prevent an employee from being fired for undertaking the process to change genders by citing the Connecticut's explicit protection for gender identity. She explained that going to court is not always the best option for employees because new employers are reluctant to hire workers who have sued their past bosses.

"Having that law on the books makes [avoiding court] possible," she said.

The statute codified a 2000 ruling from the CHRO that Connecticut's nondiscrimination laws cover sex and gender identity, Goldberg said. The 2011 law puts lawyers representing individuals in gender identity cases in a stronger position, she said. While opposing counsel might have been able to argue in the past that gender-identity protection was the opinion of just one judge and a CHRO ruling is the opinion of just a few regulators, it's much harder for them to dismiss point-blank statutory language.

The update to Connecticut's law comes as federal level is expanding as well. The U.S. Department of Labor recently issued a directive to government contractors clarifying that discrimination based on gender identity and transgender status is sex discrimination. President Barack Obama has issued an executive order prohibiting federal contractors from discrimination on the basis of sexual orientation and gender identity, and the Labor Department's directive is an interim step to implement regulations to provide those protections.

The action by the Labor Department is "huge," said Jennifer Levi, director of the Transgender Rights Project at Boston-based Gay & Lesbian Advocates & Defenders, an advocacy group that has been active in Connecticut. "Gay, lesbian and transgender people continue to face an unbelievable amount of discrimination in the workplace," Levi said. "Having a prohibition against discrimination with entities that contract with the federal government really extends the commitment to nondiscrimination."

Levi also said that Connecticut's anti-discrimination law is "a very strong law. It makes it every clear that a person's gender identity is determined by a person's assertion of what it is."

Levi, who has conducted training sessions throughout Connecticut in tandem with the CHRO on the law, said that many of the state's employers have revised their employee manuals to ban discrimination on the basis of gender identity and sexual orientation.

"Laws provide legal protection but they also send an important message to those who are protected under the laws" as well as to those who have to abide by the law, Levi said.

Connecticut's law is not the only legal development that has advanced transgender rights.

Meghan Freed, of Freed Marcroft in Hartford, whose practice includes LGBT law, notes that the Connecticut Insurance Department issued a directive last December to stop insurers from having a blanket ban on providing health insurance benefits related to a person's gender identity or expression.

"The monetary reality of costs associated with gender transition is a huge deal," Freed said. "It's an affirmative thing."

The department said that an insurer's refusal to pay for medically necessary treatment regarding gender transition would be an unfair insurance trade practice. The department cited the General Assembly's enactment of the law to prohibit discrimination based on gender identity and expression.

The Insurance Department also cited Connecticut's law requiring parity between medical coverage and mental health coverage.

Medical services for gender transition are still classified as a medical disorder called "gender dysphoria," although advocates bridle at the notion that the issue is an illness of sorts, Freed said. Gender dysphoria is a diagnosis listed in the American Psychiatric Association's "Diagnostic and Statistical Manual of Mental Disorders" and refers to people who strongly identify with and want to be the opposite gender.

Goldberg agreed that the biggest impact of Connecticut's antidiscrimination laws has been in the area of health care. Before the enactment of the state law, almost every health insurance policy contained language that excluded medical coverage for people who are transgender, even if the same procedure would be available to someone who was not transgender, Goldberg said.

While there has been a lot of progress in protecting people from gender-identity discrimination, the protections for transgender youth needs a lot of work, as has been illustrated in the case of Connecticut's "Jane Doe," a transgender teen who the Department of Children and Families at one point placed in an adult prison because of her allegedly unruly personality. Attorney Aaron Romano has called the state's treatment of his client unconstitutional.

Goldberg said there are significant issues about ensuring youth can get into the right shelters, are able to use the right bathrooms, and have protection for their gender identity if they end up in the juvenile justice system, Goldberg said.