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After the Election: Things Trans People Should Know Now

 

Rules and policies that may change (and not for the better):

Rules governing corrections to gender markers on U.S. passports 

The new administration may alter the requirements for changing gender markers on U.S. passports. Under Secretary Clinton, the State Department did away with the rule that a person had to have undergone sex reassignment surgery before the person's gender marker could be changed. The current policy requires only that the individual's doctor certify that the person has had “appropriate clinical treatment” for gender transition.  

It is possible that the new administration will change this policy.

If you have been planning to modify your gender marker on your passport, you should do so as soon as possible, even if you have not yet obtained a legal change of name. For more information on changing your gender marker under the current policy, see the discussion starting on page 8 of Legal Name Changes and Changes to Identity Documents in Pennsylvania.

Until the end of January 2017, Jerner & Palmer, P.C. is offering pro bono and reduced-rate pricing for our services related to updating gender markers on U.S. passports. Click here to learn more.

Health care laws 

The incoming administration has promised to repeal the Affordable Care Act “on day 1”. While it is extremely unlikely that the ACA will (or could be) shut down in a day, it seems certain that the ACA will be repealed in the near future.

It is difficult to predict how drastically health care for trans people and health care coverage for trans people will be affected. However, once the ACA is repealed, it seems likely that existing federal protections for trans people will be lost.

Section 1557 of the ACA prohibits covered entities from discriminating on the basis of race, color, national origin, sex, age, or disability. As of July 18, 2016, a federal rule implementing Section 1557 of the ACA went into effect. This rule prohibits discrimination against LGBTQ individuals, including transgender and gender non-conforming people. Thus, covered medical providers cannot refuse to treat trans people or refuse to recognize an individual’s gender identity with respect to pronoun usage and room placement. Covered insurers cannot categorically exclude coverage for specific health services related to gender transition.

Covered entities include:

- entities operating a health program or activity, any part of which receives funding from HHS;

- federal and state health insurance marketplaces; and

- employee health benefit programs that receive HHS funding.

When the new administration repeals the ACA, these protections will likely be lost and trans people will again face increased difficulty accessing mental health care, hormone therapy, and surgical treatment. 

If your insurer or medical provider is covered by Section 1557, we recommend that you proceed with obtaining medically necessary care as soon as possible.

More information regarding the ACA’s current protections can be found at the Transgender Law Center’s website.

School protections for trans children

It is anticipated that the incoming administration will roll back the directive issued by the U.S. Department of Justice and the U.S. Education Department clarifying that public schools receiving federal funding must treat transgender students in accordance with their gender identity.  Vice-President elect, Mike Pence, confirmed on Wednesday morning in a radio interview that “Washington has no business intruding on the operation of our local schools.” This means that decisions regarding protections for trans students will be left to local school boards.

Some localities, such as Philadelphia, have adopted policies that allow students to use their bathroom of choice, be referred to their chosen names and pronouns, and participate in groups that correspond with their gender identity- and these policies will not be at risk. But it is likely that districts without these policies will no longer be directed to adopt them in accordance with Title IX.

Other LGBTQ protections established through executive orders or federal regulations could be eliminated

There are many LGBTQ protections established through executive orders or federal regulations that are at risk. Here is a list of some of the LGBTQ-related protections that are at risk:

∙ Executive Order prohibiting federal contractors from discriminating on the basis of sexual orientation or gender identity.

∙ Prison Rape Elimination Act implementation regulations in May 2012 to directly protect LGBTQ people.

∙ Equal Access to Housing in HUD Programs Regardless of Sexual Orientation or Gender Identity Rule in February 2012, protecting LGBTQ people in all HUD­-funded programs.

∙ Comprehensive guidance in May 2016 on their interpretation of Title IX, clarifying that public schools receiving federal funding must treat transgender students in accordance with their gender identity.

∙ Guidance in July 2013 that all immigration visa petitions filed on behalf of a same­-sex spouse would be reviewed in the same manner as those filed on behalf of an opposite­-sex spouse.

∙ The Global Equality Fund, launched in 2011, which supports programs that advance the human rights LGBTQ persons around the world.

∙ Public endorsement of the Equality Act in November 2015, supporting comprehensive federal nondiscrimination protections for LGBTQ people.

-List Source: Center for American Progress

Now for the good news:

Rules governing state issued identity documents will not change

State-issued identity documents, such as driver’s licenses, non-driver’s identification cards and birth certificates, are governed by state, not federal, law.  Therefore, the result of the presidential election should not impact the procedures for name and gender modifications on these documents. Our handbook, Legal Name Changes and Changes to Identity Documents in Pennsylvania, covers name changes and changes to identity documents. Sections in the handbook regarding changes to Social Security Administration gender markers and Passport gender markers also apply to non-Pennsylvanians.

Laws and procedures for legal name changes will not change 

Name change procedures are governed by state laws, so the result of the presidential election will not impact name changes for trans people.

We continue to recommend that trans people retain trans-competent legal counsel when pursuing a name change, particularly those who wish to seek waiver of the publication requirement. And we cannot stress strongly enough how important it is that parents seeking name changes for their trans children retain trans-competent, experienced legal counsel. 

A president cannot “undo” an existing marriage or adoption decree 

Laws regarding marriage, adoption, and parental rights are controlled by states, not the federal government. Therefore, if you are legally married, your marriage cannot be “undone” by the incoming administration. Likewise, if you have adopted a child, the new administration cannot change your status as a legal parent. For more information about post-election LGBTQ family law issues, please visit our blog post here.