Home > News > Biden said he’ll work to advance transgender rights. Here are 4 things to know.
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Biden said he’ll work to advance transgender rights. Here are 4 things to know.

What is the state of transgender rights and protections in the U.S. and internationally?

- December 10, 2020

On Nov. 20, the annual Transgender Day of Remembrance, President-elect Joe Biden said that “transgender rights are human rights” and committed to advancing transgender rights as part of his administration’s platform. According to the UCLA Williams Institute, about 1.5 million people identify as transgender in the United States and are likely to be affected by any new U.S. policies.

What might the incoming administration be considering? Here are four key things to know about transgender people’s rights and realities in the United States.

Transgender people — especially those of color — face extremely high rates of violence

In the United States in 2020 so far, at least 37 transgender people have been killed in attacks because they were transgender. Sociologist Laurel Westbrook’s research finds that while total population homicide rates declined in the United States between 1990 and 2015, homicide rates for transgender people did not. According to psychologist Rebecca L. Stotzer’s research, published in 2009, transgender people are sexually assaulted at rates up to double or triple that of cisgender men and women. And transgender people report higher rates of violence than lesbian and gay respondents, political scientist Doug Meyer found in 2015.

A new Human Rights Campaign report examines the 202 fatal violent attacks against transgender and gender-nonconforming people reported between 2013 and 2020. Of these, 85 percent of fatal attacks were against transgender and gender-nonconforming people of color — and 78 percent against transgender women of color. A 2017 National Coalition of Anti-Violence Programs study finds similarly high rates of violence against transgender people of color.

These statistics are almost certainly low. According to HRC, hate crimes against LGBT people, especially transgender people, are underreported. For example, in 2016 sociologist Lisa Langenderfer-Magruder and co-authors found that transgender people experienced intimate-partner violence at higher rates than cisgender people but were less likely to report it to police.

11 LGBTQ legislators will take their seats in the next Congress. That’s a record in both numbers and diversity.

Transgender rights and protections vary dramatically by state

A Williams Institute analysis finds that U.S. public opinion supports transgender rights in a variety of policy areas.

Thirty-one states classify crimes committed because of someone’s sexual orientation as hate crimes, but only 17 states do the same for gender identity or presentation. Fully 17 states have no policies protecting people by gender identity. According to the Movement Advancement Project, 30 percent of the country’s self-identified LGBTQ population lives in those states. The “T” column in LGBTQ has fewer protections in part because, as political scientists Jami K. Taylor, Donald P. Haider-Markel and Daniel C. Lewis document, “transgender” has emerged much more recently as a political identity and therefore as a protected category.

States that don’t recognize attacks based on gender identity as hate crimes are also the states with higher rates of reported violence against transgender people. According to the HRC report, over half of the violent crimes documented against transgender people were in Texas, Louisiana or Florida, which lack protective policies or allow religious exemptions for providing services.

The U.S. federal government does not protect transgender and gender-nonconforming people under any laws or regulations. However, the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009 does classify attacks motivated by animus toward someone’s gender identity or sexual orientation as hate crimes.

In June 2020, the U.S. Supreme Court ruled in Bostock v. Clayton County, Georgia that transgender people are covered by the 1964 Civil Rights Act’s Title VII’s ban on discrimination based on sex. However, as TMC editor Amanda Hollis-Brusky wrote here at the time, Justice Neil M. Gorsuch’s majority opinion left open the possibility that some employers might be exempted if they had religious objections.

The coronavirus has hurt transgender health

Because of high levels of job discrimination, violence, family rejection and other traumas and stresses, transgender people already had high rates of homelessness and health concerns. The pandemic has exacerbated all of those underlying problems.

Transgender individuals are more likely to attempt suicide than others. That’s worsened by the pandemic’s social isolation and increased difficulty in accessing health services. Studies find that the pandemic has resulted in transgender people delaying gender-affirming treatments, including counseling programs, clinical intakes and surgeries. Observers expect that increased rates of suicide attempts across the population as the pandemic continues; transgender individuals may be particularly at risk.

Not all countries consider freedom of gender identity and presentation to be human rights

The United Nations recognizes gender identity as a human right. Different U.N. agencies have promoted transgender rights, including its development programs and its human rights office. But that’s not true of the entire U.N. system. For instance, the World Health Organization, part of the U.N. system, only removed transgender identities from its list of mental health disorders in 2019.

U.N. member states have opposed recognizing transgender rights through the U.N. or their national laws. In recent years, the United Nations passed resolutions protecting the human rights of those with LGBTQ identities. However, China, Nigeria, Saudi Arabia and Russia voted against supporting the declaration. In Saudi Arabia and at least nine other nations, gender identity that does not conform with sex assigned at birth can be punished by prison time or death.

The U.S. State Department has sometimes supported and sometimes opposed transgender rights internationally, depending on the administration. During Barack Obama’s presidency, the department allocated funding to combat violence against transgender people overseas. However, as one of this post’s authors found in a 2016 article, during the same period the United States also allocated aid to countries that discriminated against LGBTQ people. The Trump administration sought to roll back transgender domestic transgender rights protections and attempted to remove transgender consideration from U.N. committee reports, a move criticized by activists and some other nations. A 2019 survey found that Americans supported transgender rights less than did their counterparts in other developed democracies.

The way the Biden transition team has framed transgender rights as human rights aligns with the approach of many other developed countries and international organizations. But in the United States and around the world, transgender rights vary based on where someone lives.

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Audrey Comstock is an assistant professor of political science at Arizona State University and author of “Committed to Rights: UN Human Rights Treaties and Legal Paths for Commitment and Compliance” (Cambridge University Press, 2021).

Kassandra Miller, Ed.S. is a certified school psychologist and a MA student in social justice & human rights at Arizona State University, where her thesis research focuses on anti-transgender violence, nondiscrimination law, and activism.