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American Bar Association Publishes Legal Guide for Trans People

by David  Perry
Contributor
Tuesday Sep 10, 2013
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The American Bar Association released a groundbreaking legal primer for transgender adults before, during, and after their transitions with regards to numerous legal spheres that in many states remains murky. The 313-page "Transgender Persons and the Law," written by lawyer and transwoman Ally Windsor Howell, is a comprehensive guide for both cisgender legal practitioners and transgender individuals to better serve a population Howell describes as "immigrants into the world of men and women."

"’Transgender Persons and the Law’ is likely to become the definitive treatise for legal issues that have specific application to transgender persons throughout the United States," says Robert J. O’Toole, Esq., co-chair of the New York State Bar Association’s Transgender Subcommittee. "I commend this book to any lawyer who might be representing transgender clients, or anyone who is interested in learning more about the special legal challenges faced by transgender people."

The book is an effective snapshot of American transgender rights up to 2013. Howell, who now lives in Elmira, NY, previously practiced in Alabama. With over 25 years of legal experience, including a stint as an assistant attorney general and chief counsel of the Alabama Medicaid Agency, she authored annual supplements for three legal books as well as numerous articles for newspapers, bar journals and other publications.

By first describing what a transgender individual is -- "a marked incongruence between one’s experienced/expressed gender and assigned gender" -- Howell then definitively states that the transgender experience has nothing to do with sexual orientation. She then addresses the medical community, regarding proper identification of transgenderism, by citing the 2005 transcript from the Kaiser Family Foundation stating:

"There’s no way to do a test. We can’t draw blood, do an X-ray, do a PET scan, and prove that someone is transgendered. You just have to accept it... Basically, we have to trust Popeye, and Popeye says, ’I am what I am,’ and that’s just about as far as you can go in terms of making an accurate diagnosis."

To help legal professionals and newly self-aware transgender people with regard to proper terminology, Howell includes a glossary of topical terms commonly used within the transgender community. Dr. Lori Kohler, a transgender medical expert whom Howell cites, notes, "It’s not like any of us grow up and say ’Oh, I understand what that is.’ It’s not even like someone who is transgendered grows up understanding what it means, and naturally having a language, and naturally being able to articulate their experience."

The misunderstanding, bias and prejudice toward transgender people, from which gays and lesbians are not immune, can lead to an inordinate amount of trans violence. "Transgender Persons and the Law" establishes the legal and statistical foundation recognizing transfolk as a persecuted minority, victims of a particularly violent discrimination where the result often is severe harm or death.


Step by Step, State by State

With the second chapter, "Identification Documents," Howell begins in earnest with the issues of transition (and admits the work’s primary deficiency, that it is intended for adults, not minors), including a section for immigrants with regard to residency cards and naturalization papers. The book also includes a DVD containing a complete set of forms for all 50 states and the District of Columbia for name changes and, for those jurisdictions that allow it, birth certificate changes.

Howell moves on to situations including housing, the armed services, family law, education, health care, personal safety, employment, immigration and criminal justice.

Along with standing law, "Transgender Persons and the Law" contains seminal court cases and precedents as they relate to each chapter and subject. Chapter five, "Military Service and Veterans Benefits," proves particularly timely in the wake of Chelsea Manning revealing her transgender status and the legal wrangling pertaining to her transition therapy while in federal prison. Howell notes that the Veterans Affairs health system "does not provide sex reassignment surgery or plastic reconstructive surgery for strictly cosmetic purposes" and sex reassignment surgery cannot be performed or funded by Veterans Health Administration or VA.

" ’Transgender Persons and the Law’ is a very comprehensive text," writes Phyllis Randolph Frye, J.D., in the forward. Frye, the first out-of-the-closet transgender judge in the U.S. and "Grandmother of the National TG Legal and Political Movement," commends Howell’s effort, noting both the distance covered and the distance remaining for full recognition of transgender individuals in American society, and the role the courts and activists play.

"All lawyers and lay activists dealing with this area of the law either in the courts or in legislative lobbying should read it," Frye continues. "As I read, I felt gratified at how far TG legal gains have come, as expressed in this book, since 1992 when I created the first international TG legal conference in Houston. Obviously, there is much more work to be done in the area of TG legal gains. Even so, thank you, Ms. Howell, for this encompassing snapshot of all of our legal gains a mere two decades later."


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