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June 18, 2008

GLAD Launches Transgender Rights Project

Attorney Jennifer Levi to Lead Initiative in Cutting-Edge Arena of Law

Gay & Lesbian Advocates & Defenders (GLAD) announced the launch of a Transgender Rights Project, to be led by attorney Jennifer Levi. Levi, a nationally-recognized expert in transgender legal issues, has been on GLAD’s staff since 1998.

“Transgender people face the most basic and blatant discrimination every day, but we still don’t have the best legal tools to fight back,” says Levi. “With this project, GLAD can put its legislative, litigation, and educational assets to work in a focused way. One of the key goals of the project is to establish some clear, affirmative protections for the community.”

In New England, only Rhode Island, Maine, and Vermont provide explicit laws that prohibit discrimination against transgender people and only Vermont and Connecticut have passed hate crimes laws that protect trans people. At the federal level, there are no laws explicitly protecting transgender people in any context.

Because there are few laws with specific transgender protection, Levi says lawyers representing transgender clients have sometimes relied on sex discrimination statutes, or laws designed to protect people with disabilities. These can be imperfect tools, she says:

“Courts often refuse to extend sex discrimination protections to transgender people. And while state-level disability laws have sometimes been effective, transgender people were explicitly excluded from the federal Americans with Disabilities Act. And not all transgender people easily fit within the framework of federal disability law.”

Levi, Professor of Law at Western New England College, serves on the Legal Committee of the World Professional Association for Transgender Health, and is a founding member of both the Transgender Law & Policy Institute and the Massachusetts Transgender Political Coalition. With GLAD Senior Attorney Ben Klein, she authored the chapter “Pursuing Protections for Transgender People through Disabilities Laws,” in the book Transgender Rights.

GLAD’s work on behalf of the transgender community is not new. GLAD has represented transgender people since the early ‘80s. A 1983 newsletter reports: “GLAD has become involved in a daycare worker’s fight to regain her teaching job. Our client was terminated because she is a transsexual.”

Since then, GLAD has taken on cases involving school, employment, public accommodations, health care, custody, and taxes (see sidebar). Some have been precedent-setting, like Doe v. Yunits in 2001, in which Levi and GLAD represented Trina Harrington in her dispute with her Brockton (MA) middle school about her clothing.

GLAD brought claims of both sex discrimination and disability discrimination, and won on both counts. It was the first ruling of its kind anywhere in the country.

GLAD is currently representing Rhiannon O’Donnabhain in her case against the Internal Revenue Service. The IRS refused to allow O’Donnabhain to deduct as medical expenses the cost of treatments and procedures relating to her transition despite the broad legal standard laid out in the tax code for medical care. Like Doe, this case has the potential to set precedent.

GLAD formally added “gender identity and expression” to its mission statement in 2001, and in the recent battle over the federal Employment Non Discrimination Act (ENDA), took a national leadership role advocating for a trans-inclusive bill. “Gay people and trans people don’t fit everyone’s idea of what it is to be a ‘real’ man or a ‘real woman,” said GLAD Executive Director Lee Swislow. “Discrimination against trans people is profoundly intertwined with discrimination against gay, lesbian, and bisexual people.”

Among the immediate priorities for the Transgender Rights Project are supporting efforts to write gender identity and expression into the anti-discrimination laws of Massachusetts, Connecticut, and New Hampshire. Other priorities will include ensuring access to health care, securing employment protections, and advocating for appropriate identity documents and standards for changing gender markers on them.

GLAD will also work with allies to raise the profile of transgender people in the public eye. “A lot of transphobia is based on fear and ignorance,” says Levi. “Too many people say they have never met a transgender person. It’s very powerful when trans people tell their stories. It moves hearts and minds.”

GLAD, now celebrating its 30th anniversary year, is New England’s leading legal organization dedicated to ending discrimination based on sexual orientation, HIV status, and gender identity and expression.
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Fighting for Trans Justice
Some of GLAD’s notable trans cases:

Doe v. Yunits (2000) GLAD won for middle-schooler Trina Harrington the right to wear clothing that was consistent with her female gender identity. This was the first victory of its kind in the country. (Learn more about this story in our August case profile and audio podcast at http://www.glad.org)

Rosa v. Park West Bank (2000) GLAD secured a ruling from the federal appeals court that transgender people may be protected under federal prohibitions against discrimination in lending. That precedent paved the way for future federal court decisions finding transgender people protected under federal employment laws. (Learn more about this story in our July case profile and audio podcast at http://www.glad.org)

Blanchette v. St. Anselm College (2005) When Sarah Blanchette transitioned while employed as a computer programmer, her employer of seven years fired her. GLAD represented Sarah and settled the case to the satisfaction of all.

Barreto-Neto v. Town of Hardwick Police Department: GLAD successfully represented transgender police officer Tony Barreto-Neto in a case against the Vermont town that ran him off the force when fellow officers learned (from an internet search) that he is transgender.

Beger v. the Division of Medical Assistance (1999) GLAD successfully fought on behalf of Germaine Beger when Medicaid refused to pay for breast reconstruction surgery following removal of a cyst – because Germaine is transgender.

O’Donnabhain v. Commissioner of the Internal Revenue Service (2007-08) The Internal
Revenue Service refused to allow Rhiannon O’Donnabhain to deduct as medical expenses costs associated with her transition. We are awaiting a decision in this U.S. Tax Court case.

What GLAD Can Do

Although GLAD litigates only impact cases and does not provide legal services, the organization can assist trans people with legal problems in a variety of ways:

Legal InfoLine: GLAD’s Legal InfoLine volunteers answer questions about the law, tell callers what their options are, provide resources, and make referrals. Call 1-800-455-GLAD Monday through Friday, from 1:30-4:30 p.m.

Publications: GLAD’s legal publications tell transgender people what their rights are under law, and are available free of charge. Check out publications on a variety of trans topics at http://www.glad.org/rights/transgender.shtml

Referrals: When GLAD cannot take on a case, we refer callers to trans-friendly private attorneys, legal aid, a legal clinic run by the Massachusetts Transgender Political Coalition, and other legal and non-legal agencies that may be able to provide further resources and assistance.

Advocacy: Many legal problems can be resolved short of litigation, and GLAD provides information on how to self-advocate. GLAD also advocates on the policy and legislative level for system-wide changes.

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Gay & Lesbian Advocates & Defenders is New England's leading legal organization dedicated to ending discrimination based on sexual orientation, HIV status, and gender identity and expression.