Legal aspects of transsexualism in the United States

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Legal aspects of transsexualism in the United States.

Birth certificates and marriage


States make their own laws about birth certificates and marriage, and state courts have varied in their application of such laws to transgendered people. Several courts have come to the conclusion that sex reassignments are not recognized for the purpose of marriage, including courts in Ohio, Texas and New York.[1] Other courts, including in Kansas and New Jersey, have recognized the reassignments. Almost all U.S. states permit the name and sex to be changed on a birth certificate, either through amending the existing birth certificate or by issuing a new one. Only Idaho, Ohio, Tennessee, and Texas refuse to change the gender marker, though Texas will do so if a court order is presented. Like other states, California will amend birth certificates only for California natives currently living in California. However, unlike other states, postoperative residents of California born outside California may obtain a court-ordered change of name and gender.

In any event, transgendered people are caught up in the current upheaval over gay marriage, either because they are themselves gay, or because they are seeking a heterosexual marriage without state recognition of their gender transition. The problem of marriage recognition and gender markers would evaporate if gay marriage were legalized.

There is no federal law requiring equal treatment for transgendered people. Article IV, Section 1, the "full faith and credit" clause, may apply to transgendered people who receive recognition in one state and wish to extend it to another, but this has not been tested in court yet.

Court cases

The first case to consider transsexualism in the U.S. was Mtr. of Anonymous v. Weiner, 50 Misc. 2d 380, 270 N.Y.S.2d 319 (1966), in which a post-operative transsexual sought from New York City a change of their name and sex on their birth certificate. The New York City Health Department refused to grant the request. The person took the case to court, but the court ruled that granting of the request was not permitted by the New York City and New Jersey M Health Code, which only permitted a change of sex on the birth certificate if an error was made recording it at birth.

In the case of Matter of Anonymous, 57 Misc. 2d 813, 293 N.Y.S.2d 834 (1968), a similar request was also denied. However, in that case, and in the case of Matter of Anonymous, 64 Misc. 2d 309, 314 N.Y.S.2d 668 (1970), a request was granted for a change of name.

The decision of the court in Weiner was again affirmed in Mtr. of Hartin v. Dir. of Bur. of Recs., 75 Misc. 2d 229, 232, 347 N.Y.S.2d 515 (1973) and Anonymous v. Mellon, 91 Misc. 2d 375, 383, 398 N.Y.S.2d 99 (1977). However, despite this, there can be noted as time progressed an increasing support expressed in judgements by New York courts for permitting changes in birth certificates, even though they still held to do so would require legislative action.

Another important case was Darnell v. Lloyd, 395 F. Supp. 1210 (D. Conn. 1975), where the court found that substantial state interest must be demonstrated to justify refusing to grant a change in sex recorded on a birth certificate.

The first case in the United States which found that post-operative transsexuals could marry in their post-operative sex was the New Jersey case M.T. v. J.T., 140 N.J. Super. 77, 355 A.2d 204, cert. denied 71 N.J. 345 (1976). Here the court expressly considered the English Corbett v. Corbett decision, but rejected its reasoning.

In K. v. Health Division, 277 Or. 371, 560 P.2d 1070 (1977), the Oregon Supreme Court rejected an application for a change of name or sex on the birth certificate of a post-operative transsexual, on the grounds that there was no legislative authority for such a change to be made.

In Littleton v. Prange, 9 SW3d 223 (1999)[2], Christie Lee Littleton, a post-operative male-to-female transsexual, argued to the Texas 4th Court of Appeals that her marriage to her genetically male husband (deceased) was legally binding and hence she was entitled to his estate. The court decided that plaintiff's gender is equal to her chromosomes, which were XY (male). The court subsequently invalidated her revision to her birth certificate, as well as her Kentucky marriage license, ruling "We hold, as a matter of law, that Christie Littleton is a male. As a male, Christie cannot be married to another male. Her marriage to Jonathon was invalid, and she cannot bring a cause of action as his surviving spouse." Plaintiff appealed to SCOTUS but it denied her Writ of Certiorari on 2000-10-02.

In re Estate of Gardiner (2001)[3] considers and rejects Littleton, preferring M.T. v. J.T. instead. In this case, the Kansas Appellate Court concludes that "[A] trial court must consider and decide whether an individual was male or female at the time the individual's marriage license was issued and the individual was married, not simply what the individual's chromosomes were or were not at the moment of birth. The court may use chromosome makeup as one factor, but not the exclusive factor, in arriving at a decision. Aside from chromosomes, we adopt the criteria set forth by Professor Greenberg. On remand, the trial court is directed to consider factors in addition to chromosome makeup, including: gonadal sex, internal morphologic sex, external morphologic sex, hormonal sex, phenotypic sex, assigned sex and gender of rearing, and sexual identity."

In re Jose Mauricio LOVO-Lara, 23 I&N Dec. 746 (BIA 2005)[4], the (Federal) US Dept. of Justice, Board of Immigration Appeals ruled that for purposes of an immigration visa: "A marriage between a postoperative transsexual and a person of the opposite sex may be the basis for benefits under ..., where the State in which the marriage occurred recognizes the change in sex of the postoperative transsexual and considers the marriage a valid heterosexual marriage."


The State Department determines what identifying biographical information is placed on passports. Under current policy[5], an individual can receive either a permanent gender marker change upon providing a detailed statement from a surgeon or hospital that gender reassignment surgery was completed, or a temporary one-year passport with a gender marker change if provided with a detailed statement from a physician regarding the individual’s plans to complete surgery within one year. The State Department has provided no definition of what either “gender reassignment surgery” or “completed” mean.



There is no federal law designating transgender as a protected class, or specifically requiring equal treatment for transgendered people. An attempt was made to add such language to ENDA, but it was unsuccessful. Meanwhile the courts consistently refuse to expand their interpretation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (2000) to include transgendered people.

There are 13 states and 114 cities and counties (as of January 2010[6]) including the District of Columbia which feature legislation that prohibit discrimination based on gender identity in employment, housing, and public accommodations. This legislation is similar to protections against sex and racial discrimination.

State Date begun
Minnesota 1993
Connecticut[7] 2000[8]
Rhode Island July 17, 2001[9]
New Mexico 2003
California[10] August 2, 2003
Maine 2005
Illinois 2005
Washington January 2006
New Jersey 2006
Vermont 2007
Oregon 2007
Iowa 2007
Colorado[11] 2007

Hawaii protects against discrimination in housing, but not employment or public accommodations.
New York (state) provides protection against discrimination only to government employees.

For a complete list of cities and counties, see Non-discrimination Laws.

Court cases

  • 1976

On October 16, 1976, a Supreme Court rejected plaintiff's appeal in sex discrimination case involving termination from teaching job after sex-change operation from a New Jersey school system.[12]

  • 1979

Carroll v. Talman Fed. Savs. & Loan Association, 604 F.2d 1028, 1032 (7th Cir.) 1979, held that dress codes are permissible. “So long as [dress codes] and some justification in commonly accepted social norms and are reasonably related to the employer’s business needs, such regulations are not necessarily violations of Title VII even though the standards prescribed differ somewhat for men and women.”

  • 1984

In Ulane v. Eastern Airlines Inc. 742 F.2d 1081 (7th Cir. 1984) Karen Ulane, a pilot who was assigned male at birth, underwent sex reassignment surgery to attain typically female characteristics. The Seventh Circuit denied Title VII sex discrimination protection by narrowly interpreting "sex" discrimination as discrimination “against women" [and denying Ulane's womanhood].

  • 1989

The case of Price Waterhouse v. Hopkins 490 U.S. 228 (1989), expanded the protection of Title VII by prohibiting gender discrimination, which includes sex stereotyping. In that case, a woman who was discriminated against by her employer for being too “masculine" was granted Title VII relief.

  • 1998

Oncale v. Sundowner Offshore Services, Inc. 523 U.S. 75 (1998), found that same-sex sexual harassment is actionable under Title VII.[13].

  • 2004

A gender stereotype is an assumption about how a person should dress and act which could encompass a significant range of transgender behavior. This potentially significant change in the law was not tested until Smith v. City of Salem 378 F.3d 566, 568 (6th Cir. 2004). Smith, a male to female transsexual, had been employed as a lieutenant in the fire department without incident for seven years. After doctors diagnosed Smith with Gender Identity Disorder (“GID”), she began to experience harassment and retaliation following complaint. She filed Title VII claims of sex discrimination and retaliation, equal protection and due process claims under 42 U.S.C. § 1983, and state law claims of invasion of privacy and civil conspiracy. On appeal, the Price Waterhouse precedent was applied at p574: “[i]t follows that employers who discriminate against men because they do wear dresses and makeup, or otherwise act femininely, are also engaging in sex discrimination, because the discrimination would not occur but for the victim’s sex.”

Chow (2005 at p214) comments that the Sixth Circuit’s holding and reasoning represents a significant victory for transgendered people. By reiterating that discrimination based on both sex and gender expression is forbidden under Title VII, the court steers transgendered jurisprudence in a more expansive direction. But dress codes, which frequently have separate rules based solely on gender, continue. Carroll v. Talman Fed. Savs. & Loan Association, 604 F.2d 1028, 1032 (7th Cir.) 1979, has not been overruled.

  • 2006

Harrah's implemented a policy named "Personal Best", in which it dictated a general dress code for its male and female employees. Females were required to wear makeup, and there were similar rules for males. One female employee, Darlene Jesperson, objected and sued under Title VII. In Jespersen v. Harrah's Operating Co., No. 03-15045 (9th Cir. Apr. 14, 2006), plaintiff conceded that dress codes could be legitimate but that certain aspects could nevertheless be demeaning; plaintiff also cited Price Waterhouse. The Ninth Circuit disagreed, upholding the practice of business-related gender-specific dress codes. When such a dress code is in force, an employee amid transition could find it impossible to obey the rules.


IRS Publication 502[14] lists medical expenses that are tax-deductible to the extent they 1) exceed 7.5% of the individual's adjusted gross income, and 2) were not paid for by any insurance or other third party. For example, a person with $20,000 gross adjusted income can deduct all medical expenses after the first $1,500 spent. If that person incurred $16,000 in medical expenses during the tax year, then $14,500 is deductible. At higher incomes where the 7.5% floor becomes substantial, the deductible amount is often less than the standard deduction, in which case it is not cost-effective to claim.

Included in IRS Publication 502 are several items that may apply to gender transition treatments:

  • Hospital services if staying for medical treatment;
  • Laboratory fees;
  • Legal fees;
  • Lodging during treatments;
  • Meals taken during treatments;
  • Medicines, which could include HRT;
  • Operations if they are "legal operations that are not for unnecessary cosmetic surgery";
  • Psychoanalysis;
  • Psychologist;
  • Sterilization, which could include orchiectomy;
  • Therapy;
  • Transporation; and
  • X-ray.

The deduction for operations was denied to a transsexual woman and is now in tax court. In O'Donnabhain v. Commissioner, the United States Tax Court is set to determine whether costs for sex reassignment surgery are tax deductible as medical expenses. The IRS argues that such surgery is cosmetic and not medically necessary. But note that the deductibility of the other items in Publication 502 is not in dispute.

Electrolysis expenses are specifically mentioned in the ineligible 'Cosmetic Surgery' category: "You generally cannot include in medical expenses the amount you pay for procedures such as face lifts, hair transplants, hair removal (electrolysis), and liposuction." However, the presence of the word 'generally' in the Publication suggests the possibility of special consideration or justification.

See also


  • Chow, Melinda. (2005). "Smith v. City of Salem: Transgendered Jurisprudence and an Expanding Meaning of Sex Discrimination under Title VII". Harvard Journal of Law & Gender. Vol. 28. Winter. 207.


  1. Grenberg, Julie (2006), "The Roads Less Travelled: The Problem with Binary Sex Categories", in Currah, Paisley; Juang, Richard & Minter, Minter, Transgender Rights, Minneapolis: Minnesota University Press, pp. 51–73, ISBN 0-8166-4312-1.
  2. Case # 04-99-00010-CV (HTML). Texas Fourth Court of Appeals (2000). Retrieved on 2009-05-07.
  3. 85030 -- In re Estate of Gardiner (HTML). Court of Appeals of the State of Kansas (2000). Retrieved on 2009-05-07.
  4. re Jose Mauricio LOVO-Lara, 23 I&N Dec. 746 (BIA 2005)
  5. 7 FAM 1300 APPENDIX F - PASSPORT AMENDMENTS (HTML). United States Department of State (2009-03-18). Retrieved on 2009-05-07.
  6. Transgender Law and Policy Institute, "Non-Discrimination Laws that include gender identity and expression"
  7. Conn. Gen. Stat. § 46a - 81c-m
  8. Declaratory Ruling on Behalf of John/Jane Doe (Connecticut Human Rights Commission 2000)
  9. Transgender Law and Policy: Rhode Island News Release
  10. Cal Civ Code sec. 51
  11. C.R.S. 24-34-402 (2008)
  12. Supreme Court / Sex Discrimination Case / New Jersey Teacher NBC News broadcast from the Vanderbilt Television News Archive
  13. Minter, Shannon (2003). Representing Transsexual Clients: Selected Legal Issues (HTML). National Center for Lesbian Rights. Retrieved on 2007-10-03.
  14. Publication 502 (2008), Medical and Dental Expenses (HTML). Internal Revenue Service (2009). Retrieved on 2009-05-07.


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