ACLU History: Advocacy on Behalf of Transgender People

Updated, August 2012

Rigid gender norms deeply infect American society. Because transgender and gender nonconforming people lead lives that directly challenge these norms, they often face discrimination in many aspects of daily life. From using the bathroom to seeking employment or health care, transgender people are arguably the most vulnerable segment of the LGBT community.

The ACLU has been challenging discrimination targeting transgender and gender nonconforming people from well before the word “transgender” entered the nation’s civil rights parlance. In the late 1960s, for example, the ACLU helped persuade the California Supreme Court to strike down a Los Angeles ordinance barring performers from “impersonating” a person of the opposite sex. And way back in 1980, the ACLU of Southern California established the Transsexual Rights Committee to ensure that the ACLU’s broad civil liberties agenda embraced the struggles of transsexual people.

In more recent years, the ACLU has formally combined its transgender rights advocacy with its gay rights work under the aegis of the LGBT Project. This acknowledges that much of the discrimination faced by gay people occurs because we are breaking the rules on how men or women “should” act. In Loomis v. Visalia Unified School District (2001), for example, the harassment that high school senior George Loomis challenged, with our help, in one of the first cases under the California School Safety & Violence Prevention Act, included a teacher making insulting remarks about the earring Loomis wore. And in 2010, the rural Mississippi school officials who propelled high school senior Constance McMillen into the national limelight by cancelling the prom instead of letting her attend the dance with her female date had also provoked our lawsuit by refusing Constance permission to wear a tuxedo to the dance.

The focus of our transgender rights advocacy has been on building a legal environment enabling transgender people to enjoy the basic activities of life free from discrimination. Our affiliates, often in coalition with other LGBT forces, have succeeded in 16 states in enacting laws banning discrimination in employment, housing, or public accommodations based on gender identity or expression. There even has been progress at the federal level where in 2010, the Obama Administration included gender identity among the classes of people protected by federal equal employment opportunity policies.

The ACLU made a singular contribution to this federal policy change through our advocacy on behalf of Diane Schroer, a highly decorated veteran, who had begun her transition shortly after retiring as a colonel after 25 years of distinguished service in the Army’s Special Forces. She was offered a job as a terrorism research analyst at the Library of Congress, but when she told her future supervisor that she was in the process of gender transition, the offer was rescinded. We sued.

In September 2008, a federal district judge ruled that the Library of Congress had discriminated against Schroer in violation of the federal law outlawing sex discrimination. In ordering the government to pay $500,000 in compensation to Ms. Schroer for violating her civil rights, the judge issued a groundbreaking decision declaring that firing an otherwise qualified applicant because she is changing gender amounts to sex discrimination under Title VII of the Civil Rights Act.

In addition, in recent years, the ACLU has begun working on legal problems uniquely faced by transgender people, including barriers to access to important health care and to accurate identity documents. In 2011 we concluded a six-year courtroom battle [Fields v. Smith, in collaboration with Lambda Legal] challenging a one-of-its-kind Wisconsin law barring transgender individuals from receiving any type of hormone therapy or sex reassignment surgery while in state custody. The 7th Circuit Court of Appeals struck down the law as unconstitutional.

In 2012, the ACLU accomplished significant movement forward for transgender people seeking accurate and consistent identity documents. Through one court ruling and one settlement, there are now new rules allowing transgender people to update the gender markers on their Alaska driver’s licenses and Illinois birth certificates. The new rules either eliminated (Alaska) or reduced the burden of (Illinois) the state’s prior requirement that people have surgery before being able to change their gender markers and go a long ways towards resolving a problem that many transgender people face – inaccurate identity documents that cause significant embarrassment and hostility when revealed.

 
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