Recognition of the Nonhuman: The Psychological Minefield of Transgender Inequality in the Law

Article excerpt

I. INTRODUCTION

Members of the transgender (1) community often face difficult psychological and emotional challenges before and after their transition to the opposite sex. (2) Pre-transition, transgender individuals feel an enormous split between how they feel inside and how their body represents them. (3) Post-transition, transgender individuals are often surrounded by hate and ignorance within society. (4) As Stephen Whittle, a noted transgender author, characterized this struggle, "[a]lways falling outside of the 'norm,' our lives become less, our humanity is questioned, and our oppression is legitimised." (5) Transgender persons find that "[t]heir lives and issues are frequently misunderstood and derided." (6) Furthermore, they are often told that their gender identity is part of a mental illness. (7) Members of the transgender community often find themselves without recourse when violent and discriminatory acts are committed against them. (8) Eventually, the cumulative effect of the tension within them and the hate and ignorance surrounding them, compounded by the fact that they are often excluded from legislative and judicial protections--or even common understandings of what it means to be human--creates a profoundly negative psychological effect within them.

This note explores the psychological impact felt by transgender individuals when ongoing discrimination and violence against them is too often misunderstood, ignored, and perhaps perpetuated by legislatures and the judiciary. Section I examines the history of discrimination against the transgender community. Section II explores the idea of transgenderism as a mental illness. Section III discusses antidiscrimination legislation and judicial unwillingness to protect transgender individuals in the absence of clear legislative mandates. Section IV discusses the psychological effect of discrimination on transgender individuals and suggests that legislative and judicial hostility exacerbates this discrimination. Section V concludes.

II. A HISTORY OF DISCRIMINATION

The primary areas of discrimination against transgender people are employment, family law, healthcare, criminal justice, housing, and immigration. (9) In the employment context, restroom issues, (10) along with discriminatory hiring and firing practices, lead to many discrimination cases. (11) In family law, marriages can be voided, (12) custody battles lost, (13) and adoptions forbidden. (14) In homeless shelters and prisons, transgender persons are often forced to go to genitalia-matching facilities, increasing the risk that they will be harassed, beaten, or raped. (15)

Sex discrimination laws are often ineffective at addressing transgender-based discrimination. (16) Abigail Lloyd succinctly described the issue when she wrote that:

   A transgender person is not a biological man or a biological woman.
   Thus, transgender people can never fall within the meaning of the
   phrase "persons of the opposite sex" and are legally nonexistent
   intermediaries. They literally fall outside of the only categories
   the court recognizes as human. (17)

III. TRANSGENDERISM AS A MENTAL DISORDER

The American Psychiatric Association (APA) has adopted the following guidelines for determining whether a person has gender identity disorder (GID):

1. Evidence of a strong and persistent cross-gender identification;

2. Cross-gender identification must be more than a mere desire for the perceived cultural advantages of the other sex;

3. Evidence must exist of either a persistent discomfort with or a sense of inappropriateness in the gender role of one's assigned sex;

4. The person must not have a concurrent physical intersex condition; and

5. Evidence must exist of clinically significant distress or impairment in social, occupational, or other important areas of functioning. (18)

GID is usually treated by using a three-pronged approach, termed "triadic therapy," which consists of "a real-life experience in the desired gender role, hormone therapy, and sex reassignment surgery," although not all transgender individuals are required to undergo all three phases. …