Edward SanFilippo, University of Pittsburgh School of Law Class of 2013, was recently a panelist at Transgender Experiences: A Legal Perspective, and writes here about legal issues confronting transgendered Americans. He argues that legalized discrimination is morally and economically indefensible...
The Williams Institute at the UCLA School of Law recently published two studies pertaining to the transgender community. The first, titled "How many people are lesbian, gay, bisexual, and transgender?" [PDF] and authored by Gary Gates, estimated the transgender population at approximately 0.3% of the total American population, or a little less than 700,000 people (other studies have estimated the population at twice this amount, but in either case the number remains significantly low). In pure numbers, this puts the transgender population somewhere between the Native Hawaiian/Pacific Islander community and the American Indian community. Discrimination and violence against transgender individuals in nearly every facet of their lives remains rampant, despite these small numbers.
The second study, authored by Jody L. Herman and entitled "The Cost of Employment Discrimination against Transgender Residents of Massachusetts," [PDF] found that discrimination against the state's approximately 33,000 transgender residents costs the state millions of dollars each year. According to the study, "[n]ot only does the Commonwealth suffer lost income tax revenue because of discrimination, but each transgender person who loses a job may become eligible for programs that will cost the state hundreds or thousands of dollars." These programs include housing assistance, work-related programs, and public-assistance expenditures to replace lost income and insurance coverage.
The problem is not unique to Massachusetts, which protects only public employees from discrimination on the basis of their gender identity. Twelve states protect transgender workers from discrimination, but that still leaves individuals unprotected in most of the country. Even states with protections are not immune from the problem. Earlier this year, a lawsuit was filed in the Superior Court in Camden, New Jersey, in which a transgender male alleged discrimination after he was fired from his job. New Jersey law prohibits discrimination against an individual's transgender status. The plaintiff's former employer claimed in its January filing that the firing was legitimate, "since the sex of the employee engaged in that particular job position is a bona fide occupational qualification." Having a gender requirement for the position, which involves monitoring men as they give urine samples for drug tests, is a concededly appropriate exercise of an employer's limited discretion to delegate particular jobs on the basis of gender. The question, though, is whether an employer can legally assert the gender of an employee, particularly one who has legally completed a transition from one gender to the other.
One would hope the answer to such a question is not in the affirmative, but legal precedent is less than encouraging. The 1999 Texas case of Littleton v. Prange is a telling example. The appellant, a transgender woman named Christie Lee Littleton, filed a wrongful death malpractice suit after the death of her husband. The appellee doctor filed for summary judgment, challenging "Christie's status as a proper wrongful death beneficiary," and "asserting that Christie is a man and cannot be the surviving spouse of another man." Littleton had undergone full sex reassignment surgery and changed all of her relevant legal documents to be recognized as female prior to her marriage. Her surgeons testified that she was both physically and medically female, but the court granted the doctor summary judgment.
In affirming the decision of the lower court, the appellate 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." Littleton was cited last week in another Texas case, Delgado v. Araguz. In this case, the transgender widow of a firefighter killed in the line of duty had her marriage nullified and her inheritance diverted to the decedent's family, as the family had intended when they filed the action. The problem extends beyond the judiciary (and Texas)several states are currently pushing legislation that would prohibit transgender individuals from marrying anyone at all. While the costs to the individuals facing discrimination in these situations is obvious, the less apparent costs are to the unnecessarily overburdened judiciary, a legislature debating pointless laws, and in the end, the taxpayers who ultimately foot the bill for both.
So far this discussion has centered only on issues pertaining to employment and marriage law, but the problem is much larger. The National Transgender Discrimination Survey [PDF] found that transgender people also face discrimination in housing, healthcare, and education, to name a few areas. Discrimination this pervasive comes at a tremendous cost not only to the individuals facing it, but also to society as a whole. The cost to the transgender community is tremendous and well documented, but what of those broader societal costs? If employment discrimination against transgender people costs Massachusetts $3,000,000 each year just for medically related expenditures, as Herman"s figures suggest, how much greater are these costs when the other forms of discrimination are included? How much greater when other related state expenditures are added?
Beyond Massachusetts, how great are these costs among the states nationwide? What about the costs on a federal level, when federal services are computed? At a time when the economy is struggling and many are calling for drastic cuts in government spending, does it make fiscal or social sense to continue such blatant and pointless discrimination? What benefits justify such a cost? Whether you support the transgender community or not, discrimination hurts all of us, from those being mistreated to those bearing the burden of the societal costs. There is no justification for its continuance.
Edward SanFilippo, an Associate Editor with JURIST's professional commentary services, is a recent graduate of San Diego State University, where he earned degrees in religious studies and political science. He has previously worked on political campaigns and as a Partnership Specialist during the 2010 Census.
Suggested Citation: Edward SanFilippo, The Societal and Economic Impact of Transgender Discrimination, JURISTDateline, May 31, 2011, http://jurist.org/dateline/2011/05/edward-sanfilippo-transgender-discrimination.php.