Cultural Competency for Transgender Employeesfor

Healthcare ProvidersJob Corps Health and Wellness

Conference

Presented by

Presenter

Maya RupertFederal Policy AttorneyNational Center for Lesbian Rights1325 Massachusetts Ave. NW Suite 700Washington D.C. 20008mrupert@nclrights.org(202) 737-0014

Objectives

Presentation Objectives– Understand what issues you may face as a health professional working

with transgender employees, applicants, and trainees

– Understand policies that will ensure that transgender people are treated in a nondiscriminatory manner

Defining Terms

• Gender nonconforming is an umbrella term used to describe a wide range of identities and experiences related to gender, and is used to refer to many different people, including transsexual or transgender people; cross dressers; androgynous people; and other people whose appearance or characteristics are perceived to be gender atypical.

Defining Terms, con’t

• Gender identity– One’s internal feeling of being male or female (or

sometimes in between)

• Gender expression– social and behavioral characteristics culturally

associated with maleness and femaleness

Defining Terms, con’t• Gender transition is the process by which transgender people

move towards living in the correct gender identity.– Some have medical treatment, some do not– Will usually involve taking estrogen/testosterone – Identification documents are not always changed

• Transgender experiences are different, but often very difficult.– Depending on a person’s economic and other resources,

discrimination against them can cause a spiral of other problems.

Sexual Orientation and Gender Identity/Expression Are Different

• Sexual orientation refers to the relative genders of a person’s partners

• heterosexual• gay or lesbian• bisexual

• Transgender people can have any of these sexual orientations

• Transgender is not a sexual orientation, it is a gender identity

EQUAL OPPORTUNITY IS THE LAW

• It is against the law for Job Corps as a recipient of federal financial assistance to discriminate against any individual in the U.S. based on sex.

• How does the law define “sex”?

Federal Sex Discrimination Laws in Workplace and on Education

• Title VII of the Civil Rights Act of 1964• Title IX of the Education Amendments of 1972

Case law interpreting “sex” is primarily under Title VII, however, courts import Title VII analysis into Title IX, therefore it is wise to assume the same interpretations will apply under Title IX

Relevant Discrimination Laws

• Case law– Federal: Title VII’s and Title IX’s sex discrimination prohibitions– State: sex and disability discrimination prohibitions

• Clear statues with gender identity/expression• State: 12 states and the District of Columbia

– Local: 98 cities and counties

Title VII Sex Discrimination Case Law

• Courts rejected claims by transgender plaintiffs in the 1970s and 1980s

• Price Waterhouse v. Hopkins (1989 Supreme Court case) recognized “sex stereotyping” claims; and Oncale v. Sundowner Offshore Services recognized a plain language interpretation of sex discrimination

• Gradually, federal courts have recognized that transgender people can bring complaints either as “sex stereotyping” claims or as plain sex discrimination

• Federal courts are now mixed, but there have been two strong wins in the last couple of years

Title VII Case Law, continued• Smith v. City of Salem A firefighter living as a male (but intending to transition to female

imminently) was harassed by coworkers for her increasingly feminine appearance. After speaking with a supervisor about the harassment and her intention to transition, she was suspended from work. Relying on Price Waterhouse, the 6th Circuit held that discrimination on the basis of Smith’s feminine appearance was illegal sex stereotyping. The court, referring to cases in the 70s and 80s that interpreted Title VII less inclusively, explained that the approach taken in those cases “has been eviscerated by Price Waterhouse.” 378 F.3d 566 (6th Cir. 2004)

Title VII Case Law, continued• Schroer v. Billington

Diane Schroer was offered a job as a terrorism analyst at the Library of Congress. She interviewed as Dave because she hadn’t formally transitioned from male-to-female. After getting the offer, she asked her new boss if she could start work as a woman to make a clean transition. The job offer was revoked, with the employer saying she wasn’t a “good fit” and she sued. The court held that the decision of the Library of Congress not to hire a qualified job applicant, solely because she announced her intent to transition from male to female, violated Title VII’s prohibition of sex discrimination under either of two theories. First, the decision not to hire Schroer because she was viewed as insufficiently masculine (or insufficiently feminine) constituted impermissible sex stereotyping under the theory elaborated in Price Waterhouse. And second, the court held that the decision not to hire Schroer because of her announced intention to change her sex was literally discrimination because of her sex, just as discrimination against religious converts would plainly constitute religious discrimination. Id. 306-07.

The U.S. Constitution

• There may be federal constitutional issues as well if federal funds are used to discriminate on the basis of a protected class such as sex.

Several States and Localities Have Employment Non-Discrimination

Laws Too

• California• Colorado• D.C• Illinois• Iowa• Maine• Minnesota• New Jersey

• New Mexico• Oregon• Rhode Island• Vermont• Washington

98 counties and cities have non-discrimination laws as well

Barriers to Accessing Healthcare

Often transgender people face barriers to receiving healthcare unrelated to law

• Refusal of Care– According to a recent study by the National Center for Transgender

Equality, 19% of transgender people reported being refused care due to their transgender or gender non-conforming status

• Harassment and Violence in Healthcare Settings– According to the same study, 28% of respondents were subjected to

harassment in medical settings and 2% were victims of violence in doctor’s office

• Lack of Provider Knowledge– The study also showed that 50% of respondents reported having to

teach their medical providers about transgender care

Barriers to Accessing Healthcare cont’d

• As a result of these experiences, many in the transgender community postpone or forego medical treatment when it is necessary to avoid experiencing discrimination and mistreatment

• It is important to be aware of this dynamic as a healthcare professional and take affirmative steps to create a nondiscriminatory and welcoming environment

Cultural Competency Reminders

• Transgender people should be treated according to their gender identity, regardless of the gender they were born as.

• Thus, if someone identifies as a woman (even if born male), she should be treated as a woman, and likewise, if someone identifies as a man (even if born female), then he should be treated as a man, including

• This means using appropriate pronouns for a person’s gender identity and using a person’s preferred name (even if it has not legally been changed yet).

Transition

• Gender transition is the process by which transgender people move towards living in the correct gender identity.

• Transition is a process and looks different for different people– There is no “sex change surgery.” Transition may involve a single

surgery, multiple surgeries, or no surgeries, but there is no point at which transition is “complete” and a person stops being transgender.

– Avoid words like “preoperative” to define a person’s identity. Whether a transgender person has any specific surgery or has begun taking estrogen or testosterone, treat them in accordance with their gender identity, use appropriate pronouns, names, etc.

Healthcare Needs

– General Care• Remember that a person’s transgender status should

never be used as a reason for the denial of any type of medical care.

– Counseling • Because of the World Professional Association for

Transgender Health (WPATH) standards of care, medical providers often require a letter from a qualified counselor stating that the patient is ready for transition-related medical care. Thus it is imperative for transgender students, employees, and trainees to have access to such counseling

Healthcare Needs, cont’d

– Counseling (continued)• According to the NCTE study, seventy-five percent

(75%) of respondents received counseling related to their gender identity and an additional 14% hoped to receive it someday. Only 11% of the overall sample did not want it.

• Discrimination faced by transgender people in daily life often increases need for counseling. According to the NCTE study, 41% of respondents reported having attempting suicide. 45% of those people were between the ages of 18 and 44.

Healthcare Needs cont’d

– Access to Medical Transition-Related Care• Taking estrogen/testosterone

– Sex-specific Care• Transgender people will often have needs for sex-

specific care that is incongruent with their gender identity:

– A transgender man may need to visit a gynecologist – A transgender woman may need a mammogram and a

prostate exam– Make all care available to all people without judgment,

discrimination, or inappropriate questions

Healthcare Needs cont’d

– Surgeries• Male to female: Transgender women may elect to

undertake a variety of surgeries, including breast augmentation, orchiectomy (removal of testes), vaginoplasty (creation of a vagina and/or removal of the penis), and facial feminization surgery.

• Female to male: Transgender men may elect to undertake a variety of surgeries, including chest reconstruction, hysterectomy and other genital surgeries.

• Note that none of these surgeries should be considered more important in a person’s transition than any other.

Nondiscrimination in Provision of Services

• Never discriminate based on transgender status in the provision of any type of healthcare service

• Use appropriate pronouns and names for individuals regardless of whether a name has been legally changed or what government-issued identification says

• Do not tolerate offensive language, discrimination, or any form of disrespect in your healthcare facility

• Outreach to transgender students, employees, and trainees to make sure they are aware of services that are provided

• Create a safe, nondiscriminatory space for all people seeking healthcare

Additional Resources Lisa Mottet, Director, Transgender Civil Rights Project, Nat’l Gay and

Lesbian Task Force, lmottet@thetaskforce.org, 202.639.6308 • Dru Levasseur, Transgender Rights Attorney, Lambda Legal, c

dlevasseur@lambdalegal.org, (212) 809-8585, ext. 224• Seth Kirby, Program Specialist, Washington State Human Rights

Commission, skirby@hum.wa.gov, (360) 586-3413• Marcus Arana, Investigator, San Francisco Human Rights Commission,

marcus.arana@sfgov.org, (415) 252-2519• Transgender Rights, edited by Paisley Currah, Richard M. Juang, Shannon

Price Minter, University of Minnesota Press, 2006. • Transitioning Our Shelters: A Guide to Making Homeless Shelters Safe

for Transgender People, National Coalition for the Homeless and National Gay and Lesbian Task Force Policy Institute, 2003, available at http://www.thetaskforce.org/downloads/TransHomeless.pdf

With Thanks For Your Attention