OUTLawed: Brave Transgender Youths Who Won Their Fight for Equal Rights

*Original Post from Project Female

They’re young, fierce, and have the law on their side.

In almost any conversation (or comment section) about marriage equality or transgender rights, one question always comes up: But what about the children? When it comes to their basic rights to live as young people of diverse sexual orientation, gender identity or expression (SOGIE), all that “concern” seems to go out the window.

Being a teenager or a young adult is horrible enough. But for young people whose gender doesn’t conform to the sex they were assigned at birth, coming of age can be even tougher — especially when it’s the grownups making life difficult for them in many ways. It can be that teacher who won’t call them by their preferred pronoun or that school principal who won’t let them use the bathroom of the gender they identify with. It could be their parents or a church leader who tells them that a fundamental aspect of who they are is a one-way ticket to hell.

Don’t underestimate these kids, though, because some of them managed to take their issues to court, with a little help from civil rights groups and their supportive families. And they won. Here are three court cases that prove it:

1. Hawaii Youth Correctional Facility (HYCF) paid a $625k settlement for abusive treatment of its LGBT wards. (RG v. Koller, 2006)

What happened: C.P., a transgender girl, experienced sexual harassment, rape threats and verbal abuse, a “daily occurrence” during her eight months in HYCF. Although a lot of it came from the other kids in the facility, the staff didn’t do anything about it. Sometimes the abuse would even come from the staff themselves. One of the youth correctional officers called her names such as “cupcake” or “fruitcake.” Some even threatened that she would be sent over to the boys’ side, which eventually happened, despite objections by the medical staff.

The US District Court decision reads:

Some of the male wards touched C.P., pulled her hair, threw things at her, told her to ‘give [them] head,’ or asked permission to rub her legs. Other male wards made comments like, ‘I want to feel your ass,’ and ‘I want to fuck you,’ or asked her to show her breasts. Other male wards exposed their buttocks to her, pulled out their erect penises and showed them to her, or started masturbating in front of her.

HYCF’s brilliant solution to C.P.’s complaints? They isolated her in a holding cell. In one instance, she was kept there for 23 hours a day for six days, with nothing but a pillow and a blanket, without any contact with the outside world. For her “protection.”

The Issue: Must HYCF be held responsible for the abuse the plaintiffs suffered while in the facility?

What went down in court: With the help of the American Civil Liberties Union (ACLU), C.P. took this case to court along with two other plaintiffs who experienced harassment and abuse because of their actual or perceived sexual orientation. The federal court decision affirmed the Department of Justice’s description of the facility: it was “in a state of chaos.” It also granted the plaintiffs a preliminary injunction, directing HYCF to get their act together, based on the likelihood of the lawsuit to succeed on the grounds of due process rights.

See, juvenile detention centers serve a rehabilitative, and not a punitive purpose. This means that the state’s objective in keeping kids there is to help them get their lives on track, not punish them, because they aren’t actually convicted of any crime. This also means that the safety and well being of the wards was the facility’s responsibility. The conditions at HYCF, along with the facility’s systematic failure to protect the kids from abuse coming from other kids and the facility’s staff themselves, were enough reasons for the court to grant an injunction.

The happy ending: Eventually the state of Hawaii settled for $625,000, covering damages to the plaintiffs and legal fees, as well as for the costs of a court-appointed consultant to fix their policies, procedures and grievance systems, in relation to protecting the safety of their LGBT wards.

2. Ashton Whitaker had to fight for his right to use the bathroom. (Whitaker v. Kenosha Unified School District, 2017)

An average 17-year-old should have enough crazy things to deal with — finishing high school, getting into a good college, or maybe getting a prom date and diving into the crazy world of dating. Being able to go when he needs to go — to the bathroom, that is — should be the least of his worries. But not if you’re trans.

What happened: Ashton Whitaker, then a 17-year-old high school senior at George Nelson Tremper High School, had already publicly transitioned as a boy. This was after having been diagnosed with gender dysphoria. According to the American Psychiatric Association, “Gender dysphoria involves a conflict between a person’s physical or assigned gender and the gender with which he/she/they identify.” Doctors may prescribe treatment for those diagnosed with the condition, in order to make their body’s appearance conform with their gender identity. Ashton underwent such treatment, under medical supervision, and also got his name legally changed.

Although his peers were generally accepting of his gender identity, his School District rejected his requests to use this boys’ bathroom. Using the boys’ bathroom, the school reasoned out, would violate the privacy rights of the other boys. He was told that he could either use the girls’ bathroom, or use a gender neutral bathroom that was on the opposite end of his classroom. Along with his mother, he presented documents that support his transgender status, but the school didn’t budge, telling him that he had to go through sex reassignment surgery before they could let him use the boys’ bathroom. He could’ve actually just snuck in, but he didn’t do this out of fear of getting punished, which could affect his chances at college.

This took a toll not only on his physical health, but also on his mental state. The boy who was active in extra-curriculars and was the top 5 percent of his senior class started suffering from depression and anxiety, even contemplating suicide. The school’s bathroom policy put him in a dilemma between living his life as a transgender boy or being able to use the bathroom.

He also had a condition called vasovagal syncope, a condition that makes him prone to fainting and seizures when he gets dehydrated. Because of his aversion towards using the bathroom, he tried to avoid this by drastically reducing his water intake, thus aggravating his condition.

The Issues: Does Ashton have the right to use the bathroom for the gender he identifies with? Can the school be compelled to allow Ashton to use the boys’ bathroom? Is the school violating Ashton’s rights if they do otherwise?

What went down in court: Ashton took his case to a Federal District Court, which granted a preliminary injunction in his favor, on the grounds of the school district’s violation of his rights under Title IX and the equal protection clause under the Fourteenth Amendment. The school district appealed to the Court of Appeals, which upheld the lower court’s decision.

Under Title IX, no person “shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program or activity receiving Federal financial assistance…”

The Court of Appeals declared: “A policy that requires an individual to use a bathroom that does not conform with his or her gender identity punishes that individual for his or her gender non‐conformance, which in turn violates Title IX.” Thus, the Court of Appeals ruled favorably towards the likelihood of the success of Ashton’s claim under Title IX.

The Equal Protection Clause, meanwhile, means that “all persons similarly situated should be treated alike.” This does not mean that the state cannot legitimately classify individuals and treat them differently in furtherance of state policy. Suspect classifications, such as those based on sex, however, must be subjected to heightened scrutiny.

Agreeing with the view that transgender individuals are a historically discriminated class, the Court of Appeals thus held that the standard of heightened scrutiny must be applied to its bathroom policy that prejudices transgender students. Therefore, the School District has the burden to prove that “its justification for its bathroom policy is not only genuine, but also ‘exceedingly persuasive.’” The District, however, failed to discharge this burden.

The happy ending: The School District appealed to the Supreme Court, but the school board eventually voted to pay Ashton an $800,000 settlement and withdrew its petition.

3. Several young people got New York’s Medicaid to cover trans-specific medical procedures for minors. (Cruz v. Zucker, 2015)

What happened: Ar’es Kpaka, 23, has identified as female since the age of three. Growin up, however, she had to keep her gender identity a secret from her family, until she was forced to leave home. For months, she was homeless. Riya Christie, 23, who grew up in Jamaica, moved to the United States for political asylum because of the violence she suffered as a transgender girl in her home country. For both young women, the incongruence between the body they were born with and the gender they identify with made them struggle with depression. Both of them, along with their co-plaintiff Angie Cruz, are considered categorically needy Medicaid recipients diagnosed with gender dysphoria, which the court recognized as “an identifiable, severe and incapacitating disease.”

To alleviate the psychological effects of this condition, such as depression and anxiety, physicians prescribe treatments that help transgender individuals transition into the gender they identify with. New York State’s Medicaid program, however, excluded coverage to such treatments, by virtue of a 1998 regulation. After the three plaintiffs brought the class action suit to court, the regulation was lifted, but it still retained two items as excluded from Medicaid coverage:
1. Cosmetic surgery, services and procedures
2. Coverage for hormone therapy or gender reassignment surgery for minors, as well as gender reassignment surgery for individuals under 21, if such surgery resulted in sterilization.

Later on, two more plaintiffs joined the class action suit: M.B., 13, and S.V., 14, both categorically needy Medicaid recipients diagnosed with gender dysphoria. Both their physicians prescribed pubertal suppressants, but they were denied Medicaid coverage for it.

The issues: Are transgender individuals entitled to Medicaid coverage for treatments and procedures necessary for gender dysphoria? Should minors also be entitled to such coverage?

What happened in court: The limitations were found to be in violation of federal Medicaid requirements, and thus, the plaintiffs were found to be entitled to relief. Over the course of the suit, the Department of Health lifted these exclusions, although in the end, the court still ruled in favor of the plaintiffs. The bottomline is, as long as the procedure or treatment is certified as medically necessary by a physician, Medicaid should cover it.

The happy ending: Not only were the plaintiffs eventually able to receive the treatments they needed, transgender individuals in New York State now have a solid legal footing on which to base Medicaid claims. The court also granted over $1 million to two public interest law firms who brought the suit, The Legal Aid Society and the Sylvia Rivera Law Project, to cover costs of suit.

Moving Forward

“The intersection of our cognition with our emotions is both the essence of our humanity and the source of our anxiety,” reads the 2015 court decision in Cruz v. Zucker, penned by District Judge Jed S. Rakoff. We still have a long way to go as far as equal rights for our transgender brothers and sisters is concerned. But with adequate opportunities and legal assistance, along with a few brave souls who dare to challenge deeply-rooted biases and institutionalized discrimination, progress is definitely possible.

Access to education can change anyone’s life, regardless of their gender identity. Opportunities such as scholarships, however rare, are increasingly becoming available for transgender youth, especially with the growing awareness on various issues they face.

Are you young, openly transgender and/or intersex? We’re granting scholarships and financial assistance to qualified transgender youths. Learn more.