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Critical Transgender Concerns Awaiting Action at the Social Security Administration

Ian S. Thompson,
Senior Legislative Advocate,
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May 22, 2012

Late last week, the ACLU joined a letter to the Social Security Administration (SSA) drafted by our coalition partners at the National Center for Transgender Equality. The letter expresses a shared concern over a lack of action from SSA on several policy matters of critical importance to transgender people and their families.

The three areas addressed in the letter include the need for an updated policy for changing gender information in SSA records; revising guidance regarding marriages involving a transgender spouse to accurately reflect state and federal law; and phasing out the use of gender data in SSA computer matching programs.

The ACLU views the ability of transgender people to have identifying documents and records that accurately and consistently reflect their lived gender as essential. As the coalition letter states, having identification and records that misrepresent one’s lived gender “outs” a transgender person in any situation where he or she needs to rely on these records, whether for purposes of employment or conducting business with state and local government offices. This not only violates the privacy rights of transgender people, it also puts them at serious risk for discrimination, especially in the 34 states that currently lack explicit nondiscrimination protections for individuals based on gender identity.

Earlier this year, the ACLU appeared in Alaska Superior Court seeking to allow transgender individuals to correct the gender marker on their driver’s licenses. The ACLU argued that to refuse to change the gender marker on a driver’s license or require surgery prior to a change places an undue burden on transgender individuals and presents a gross violation of an individual’s right to privacy and equality.

On March 12, a court ruled in the case of K.L. v. State of Alaska that this refusal to change gender markers on state driver’s licenses is unconstitutional. As far as the ACLU is aware, this is one of only a few decisions we know of where a U.S. court has recognized a transgender person’s constitutionally protected interests in having accurate identity documents, and the only one focused on a person’s privacy interests in having the gender designation on her driver’s license match her “lived gender expression of identity.”

The case is particularly relevant to the coalition letter’s request to phase out the use of gender data in SSA computer matching programs. In September 2011, SSA correctly ended the practice of allowing gender to be matched in its Social Security Number Verification System. The practice presented a great deal of risk for transgender workers because SSA would send employers a notification when the gender marker on an employee’s W-2 form did not match Social Security records. This violated the privacy rights of tens of thousands of transgender workers. The decision to end the practice was the right thing to do. However, as commendable as it was, SSA continues to use gender in other SSA matching programs, needlessly violating the privacy rights of transgender workers and putting them at risk for discrimination.

Numerous federal agencies have implemented policies over the past two years regarding gender change on official documents and records including the June 2010 decision by the State Department to adopt a new policy for updating gender on U.S. passports and Consular Reports of Births Abroad; guidance from the Office of Personnel Management in May 2011 to the heads of all executive agencies and departments regarding gender transition in the workplace; a June 2011 directive from the Veterans Health Administration on serving transgender veterans, which provided for updating the gender designation in patient records; and, most recently, a policy memorandum from U.S. Citizenship and Immigration Services in April regarding immigration benefits for transgender individuals, which provided for updating gender designation on various immigration documents.

It is time for SSA to act. These requests to SSA are critically important policy matters for transgender people that go to the heart of what it means to have your gender identity recognized and respected by the government.

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