Legal Issues

Guest Speaker: Waring Fincke
FORGE had the honor of having attorney Waring Fincke share with us his views on how the law can impact transgender issues, as well as what steps trans people can take to better protect themselves to avoid potential problems. He has given great thought to trans-legal issues over the past 20 years, and offered some very useful strategies and answers to attendees.

Waring can be contacted at:
Waring R. Fincke
Attorney at Law
1784 Barton Ave., Suite 17
West Bend, Wisconsin 53090
(262) 334-1030 (voice)
(262) 334-1035 (fax)
http://my.execpc.com/~wrfincke/

There are -- in most cities and states -- no hard and fast laws that protect, or even address, transgender people (let alone partners or family members of trans people). Because of this, people in power (police, judges, employers, apartment building managers, clerks at the DMV, to just name a few) are frequently flying by the seat of their pants, trying to make the best choices possible without any formal training or protocols to follow. Many people are trying to support the rights and dignity of trans people, but they simply may not know what to do. Of course, there are plenty of cases where a person in power is intentionally causing hardship, or worse, for a trans person. To protect yourself, take proactive measures by creating as many legal buffers around you as you can IN CASE there is a problem somewhere down the road. Legal buffers (carry letters, prenuptial agreements, durable power of attorney, etc.) can “shore up” your case, if a problem crops up later on!

The information in this follow-up is predominantly from Waring’s presentation on March 5, but some additional information has been included.

• While most trans people just want to use the restroom and not cause a scene (usually desiring the exact opposite -- to simply blend in or go unnoticed), we may have times when we don’t fit well into either of the two-gendered bathroom options we are most frequently given. When possible, try finding unisex/single unit bathrooms to avoid any confrontation with others who may question your gender, or their belief of if it’s appropriate for you to be in their bathroom.
• The most common charge for using a bathroom that may or may not match your plumbing and/or driver’s license sex is disorderly conduct. Anything that may cause a social disruption (i.e. a woman in the women’s bathroom freaking out because she thinks there is a man in the bathroom), or any conduct that is loud, profane or provokes and disturbance can be classed as disorderly conduct. If police are called, the trans person can be “warned”, ticketed or arrested. It is not illegal to go into ANY bathroom. It only becomes an issue if someone is upset by someone else’s presence and calls security/police.
• If using a gendered, multi-person bathroom, it’s often best to quickly and efficiently use the facilities and leave (i.e. don’t linger or spend a lot of time looking in the mirror). If using the men’s room and also using a device which allows standing urination, it is best (safest) to always use a stall -- thereby reducing the chance that another man will question your validity in the men’s room.
• The use of a “carry letter” is often a great way to avoid escalating conflict and may be a “get out of jail free” card. A “carry letter” is a note from a therapist or physician that states your transgender status. If confronted at the airport or by police, providing a carry letter often proves your “validity” and lets people know you have a “legitimate” reason for being in a particular bathroom and/or are involved in a gender transition (and not just trying to find the bathroom with the shortest line!). Carry letters can shift a police officer’s choice of doling out a verbal warning rather than ticketing you, or worse yet, arresting you. [A great idea for always having your carry letter ready for use (and not ending up crumpled or torn) is to shrink and laminate it. Often, you can shrink it to the size of a credit card (so you can stick it in your wallet) and still read the letter.]
• In employment situations, it’s best to talk with your employer before you transition. Often arrangements can be made for transitional/unisex bathroom use, until the point in time when most everyone feels comfortable using the bathroom of your choice (new gender presentation). If you wish to remain stealth about your transition (e.g. if you transitioned a long time ago and don’t want anyone to know), a carry letter may still be advisable, as well as finding out about your rights as spelled out in written company policy.
• If confronted by the police, it MIGHT be more problematic to have an M on your drivers license than your original F. Police may think it’s fraud -- that the license isn’t really yours or you are using it for other illegal purposes. Again, a carry letter may be one way to diffuse this situation and help things move to a calm resolution.

  
  People in Search of Safe Restrooms
  http://www.pissr.org/
  (Dean Spade)
  People in Search of Safe Restrooms (PISSR) believes that all people, regardless of their gender identification or presentation, have the right to access safe and dignified restroom facilities without fear of harassment, judgment or violence. In order to reach this goal, PISSR is committed to establishing gender-neutral bathrooms.

  
  

• Problems can arise when trying to get married or get unmarried. In Wisconsin, marriage is considered to be between a man and a woman -- but those terms are not defined anywhere in the law.
• When getting divorced, there can be questions about property rights, child custody, and insurance or Social Security benefits. Cases have gone both ways in divorces where one person is transgender. Some people end up losing nearly everything when their marriage dissolves, while others have equitable divisions based on common marital laws and agreements.
• When getting married, it is wise to create a prenuptial agreement, so that if a divorce happens, there is at least one legal document that highlights what both people wanted -- at least at one point in time -- so it’s not solely left up to lawyers and judges, whose personal beliefs about transgender issues may interfere with their decisions. Prenuptial agreements cannot address child custody, since courts will not honor it.
• Marriage in Wisconsin is based on what is on your birth certificate. Therefore, many gender pairings are possible, depending on what is noted on the birth certificate. For example, and MTF (birth certificate still = M) and an FTM (birth certificate still = F) could legally be married. Likewise, a genetic women (birth certificate = F) and an FTM (birth certificate = M) could get married -- regardless of their genital status. Additionally, this method of examining birth certificates, not body configuration, allows for “gay marriage.” For example, an FTM (birth certificate = F) could legally marry his gay male partner (birth certificate = M).

“Transgender Elders and Marriage: The Importance of Legal Planning”
by Shannon Minter’s
http://www.forge-forward.org/handouts/TGElders-Marriage-ShannonMinter.pdf
This article is a brief overview of legal issues pertaining to transgender elders and marriage, including what legal steps should be made to protect married couples that include at least one trans person.

• A Medical Power of Attorney is the only way to get control over end of life and emergency medical decision-making.
• Any two people can create a Medical POA.
• No one -- family members, physicians or others -- can null the POA.

  
  Sample Power of Attorney Form
  http://www.finance.cch.com/tools/downloads/wispoa(health).rtf

   

• A big concern of many trans people and their families is where the trans person would be housed if they were jailed. Generally, a person’s location is determined by their plumbing. If their genital status is “female” (which generally means the absence of a penis and/or the presence of a vagina), the person will be put in the women’s “side”.
• If a person is considered “vulnerable” (small in stature, not assertive, disabled), s/he will often be placed in a segregated cell.
• Police should not harass people they arrest or are questioning, but it happens frequently.
• Being prepared -- all the time -- with your (trans-friendly/trans-aware) lawyer’s business card and carry letter may help avoid additional problems if you are arrested. If possible, always make your first (or only) call to your lawyer.
• If you have been arrested, you have the right to request to speak with a (police) supervisor and to make a phone call (to your lawyer).

Fact Sheet: Rights of Transgender Prisoners
By Courtney Joslin, Esq., National Center for Lesbian Rights
A referenced Q & A article about transgender issues and prison.
http://www.nclrights.org/publications/tgprisoners0804.htm
http://www.nclrights.org/publications/pubs/tgprisoners0804.pdf

• Is it legal for someone to “out” you, against your will? A question was asked about a contracted service provider who outed their trans client to other staff members at the service provider’s company. The company later discontinued offering services to the trans client. In this particular case, the service provider was breaking HIPPA privacy rights by divulging the trans status of one of their clients. They were, however, entitled to discontinue service, since there was no long-term contract or other agreements.

• Can you be charged with fraud if you check a “male” or “female” box on a form? Short answer: no. Longer answer: If you are completing your employment application and your employer later finds out something that is not consistent with what you put in your initial application, you could be fired for lying on your application.
  [Which box you check on some forms may be significant – and not just something that is personal preference. For example, if your medical insurance company has recorded your gender as female and you check male on medical forms in your doctor’s office, your insurance company may not pay for services rendered if there are discrepancies in their data vs. what is being submitted from a provider’s office.]
  

• A gender therapist or specialist coming in to talk with an employer (or staff) can be useful and reduce a lot of tension between employee and employer (or coworkers).
• It’s wise to talk to HR (human resources) an equal opportunity or diversity person at your place of employment. It’s better to tell folks ahead of time and make a game-plan, rather than to spring a surprise on everyone.
• If HR is not supportive, asking your attorney to call or write a letter may be in your best interest (and my help HR staff make a different, more supportive choice).
• Put everything in writing! Don’t just call. Write and use snail mail -- certified and with return receipt requested. Carbon copy your letter to the head of the company, the diversity contact person, the head of equal opportunity, or others who may be an ally or who uphold company policy.
• If you transitioned a long time ago, can you be fired if your employer finds out that you are trans? It’s possible, but not likely. It’s less likely if you are a member of a union and are not an employee-at-will.

  
  Transgender Employment Links
  http://www.gendersanity.com/resources.shtml
  The web sites listed on this page contain information about transitioning on the job and other issues transsexual and transgendered workers and their employers may face. Some present the transsexual worker's point of view, others offer advice from professionals. Several pages of legal resources, from both the United States and Europe, are listed. Also included are sites that provide mail order service for relevant books.

• If an employer runs a background check, they will either find information only up to the date you changed your name, or will find all information on you (including prior to a name change). If your employer sees an inconsistency between, what you put on your resume (e.g. 20 years of experience/jobs) and your background check (if it comes out with only 4 years), they may question your honesty or integrity.
• HR personnel can be your friends and advocates if you need to have a background check run. Providing all names in the field on the form asking for any aliases or names you have gone by, will alleviate most problems -- this does mean, though, that you will be out to your employer (or at least out to the HR staff who process the application). Most HR staff can be confidential about sensitive information. Often companies keep separate files with secure/sensitive information (such as pay grade, social security number, background checks and drug test results).
  

• Can ER staff deny treatment if you are transgender? They shouldn’t! If the hospital receives Hill Burton Act funds, they MUST serve everyone.
• In most cases, if you are coming to an ER and need emergency care, physicians and staff will address your immediate condition FIRST and possibly later interact with you about your transgender status.
• Once again, having a carry letter in your wallet can be helpful.
• Some people wear medic alert bracelets or necklaces to let physicians know that they are transgender. These tags are checked when a patient arrives at a hospital, since it alerts medical staff to allergies and/or conditions physicians should know about before initiating treatment. Wearing a tag can minimize the provider’s “shock” of finding “mismatched” genitals in the cases where staff must cut off clothing or treat an unconscious (trans) patient.
• Partners and friends can be great advocates in emergency situations, talking FOR the trans person, if they are unable to.
• If you were treated unfairly or disrespectfully, you can write letters (to the hospital administrator, to local newspapers, etc.) after you are released from the hospital.
  

• Generally you need a surgeon’s letter stating you have had irreversible gender reassignment surgery in order to have the sex designator on your birth certificate changed. Many FTM’s who have had chest surgery only, have been able to have their birth certificates changed if their surgeon clearly states that they have had irreversible gender reassignment.
• Some states to not allow you to change the sex designator on birth certificates -- Alabama, Florida, Idaho, Ohio and Tennessee.
• In states not allowing birth certificate gender change, you can get a passport.
  

• Transgender Law and Policy Institute http://www.transgenderlaw.org/
  Transgender Law and Policy Institute is a non-profit organization dedicated to engaging in effective advocacy for transgender people. The TLPI brings experts and advocates together to work on law and policy initiatives designed to advance transgender equality.
  
• The Transgender Law Center http://www.transgenderlawcenter.org/
  The Transgender Law Center (TLC) is a civil rights organization advocating for transgender communities. Every day TLC connects transgender people and their families to technically sound and culturally competent legal services, increases acceptance and enforcement of laws and policies that support California's transgender communities, and works to change laws and systems that fail to incorporate the needs and experiences of transgender people.
  
  TLC utilizes direct legal services, public policy advocacy, and educational opportunities to advance the rights and safety of diverse transgender communities. TLC uses the term “transgender” to represent all of the innumerable genders and forms of gender expression that fall within and outside of stereotypical gender norms. TLC also understands, acknowledges, and resists non-gender based oppressions which limit people's ability to live in peace.
  
• Transgender Law Project http://www.nclrights.org/projects/transgenderproject.htm
  Shannon Minter is a key staff person at the Transgender Law Project. He has worked with transgender people (especially transmasculine individuals) and their families for many years, regardless of their geographic location.
  
  The Transgender Law Project (TLP) is a brand new effort to create effective and long-lasting legal advocacy for the San Francisco transgender community. TLP is co-sponsored by the National Center for Lesbian Rights and the Pride Law Fund.
  
• Spencer Bergstedt http://www.spencelaw.com/
  Spencer Bergstedt, Esq., has just written 2 books, both entitled "Translegalities A Legal Guide for () Transsexuals". You might wonder what the () is for and why 2 books. Well, the answer is simple within the () put either FTM or MTF, depending on which book you'd like to order. Each book covers a multitude of legal issues as they relate to transsexuals. Included are such things as Insurance, Marriage, Estate planning, Divorce, Child Custody issues, Name Change, Birth Certificates, Drivers License, Social Security, Workplace issues, Criminal issues and more. The book includes name, birth certificate, and driver's license change information for all 50 states. Each also includes lots of resource information like reading lists, organizations, products, etc. specific to whether you are FTM or MTF. Each book is 103 pages, 8 1/2 x 11 format. The cost is $30.00.
  
• Phyllis Randolph Frye http://www.transgenderlegal.com/main1.htm
  Transgender Legal was created to accelerate the legal freedom of transgenders!
  Transgenders include, but are not limited to, part-time crossdressers and full-time transsexuals. This site is dedicated to assist them and any other person who expresses any type of actual or perceived gender presentation which is at variance with bipolar, socially assigned, gender presentations or gender identifications.
  
  Transgender Legal is the official web site for Phyllis Randolph Frye, Esq., of Houston, Texas, USA. This site includes most of the two-plus decades of her writings and other items that she has produced in her quest for individual freedom and for freedom of her people.
  
• Sylvia Rivera Law Project http://www.srlp.org/
  SRLP works to guarantee that all people are free to self-determine gender identity and expression, regardless of income or race, and without facing harassment, discrimination or violence.
  
• Press for Change http://www.pfc.org.uk/
  Press for Change is a political lobbying and educational organisation, which campaigns to achieve equal civil rights and liberties for all transgender people in the United Kingdom, through legislation and social change.