Information Alert From INTRAA and the National Center for Transgender Equality

The Indiana Bureau of Motor Vehicles (BMV) has agreed to immediately discontinue using gender mismatches solely as a reason for invalidating driver licenses. Indiana Transgender Rights Advocacy Alliance (INTRAA) and the National Center for Transgender Equality (NCTE) successfully worked with officials at the Indiana BMV to bring about this policy change. On November 6th, the Indiana BMV began issuing warning letters to people in the BMV database whose information did not match Social Security Administration’s (SSA) records. Information compared between the two databases included name, Social Security number, date of birth, and gender. Letters instructed recipients to resolve discrepancies within 30 days or risk losing their driving privileges.

INTRAA and NCTE brought to the Indiana BMV’s attention that Social Security uses a different standard for changing gender markers than what the BMV uses. Because of these differing standards, some transgender people legitimately have an Indiana driver license or identification card with one gender marker and SSA records with a different gender marker. Through the work of INTRAA and NCTE, Indiana BMV Commissioner Ron Stiver realized the difficulties surrounding gender marker verification and issued an immediate policy change. The newest policy is that gender mismatches will be ignored by the BMV.

Indiana driver license and identification card holders who have other SSA mismatches besides gender, such as name or date of birth, will still need to resolve those discrepancies. Those with mismatches besides gender, and who fail to get their SSA and BMV records to match, will be sent a second letter. This second letter will advise them that unless the mismatch is resolved their driving license will become invalid, effective 30 days from the date of the second letter. The Indiana BMV does not plan to issue “disregard” notices to people who received letters for gender-only mismatches. However, people who had gender only as a mismatch will not be issued a second letter.

In the future people who have gender and a second type of information mismatch (for instance, name) will be sent letters that mention only the non-gender mismatches. INTRAA and NCTE applaud the Indiana BMV for its quick response and for resolving a problem that affected a sizable proportion of transgender people in Indiana.

If you have received one of these letters and are looking for information or assistance, please contact us at info@intraa.org or jotto@nctequality.org.

The Department of Homeland Security (DHS) has dropped its attempt at enforcing their new “No Match” enforcement procedures, issued in mid-August. The enforcement procedures encountered obstacles from the beginning with a lawsuit by labor and immigration groups blocking the rule’s progress only a couple weeks after their issuance. During the rule’s open-comment period, many organizations, including NCTE, filed comments opposing adoption of the rules, arguing that the procedures would unfairly jeopardize workers’ jobs.

The DHS rules would have required employers to either fire employees or face stiff penalties when employee records do not match information in the Social Security Administration (SSA) database, such as name, Social Security number, or gender. Transgender employees who are listed as one gender in SSA records, but who live and work in another gender, would have been one of the groups at greater risk of losing their jobs as a result of the DHS enforcement procedures.

Last month, on October 10th, the enforcement procedures were dealt a severe blow when the presiding judge issued a preliminary injunction blocking the rules, finding that the rules would cause irreparable harm to both innocent workers and employers. DHS signaled its abandonment of these rules on Friday, the day after Thanksgiving, by requesting that a judge put the lawsuit on hold until March 2008. DHS plans to introduce new, replacement enforcement procedures, which DHS believes will have a better chance of standing up to legal scrutiny, in December 2007.

Though the DHS enforcement procedures have been pulled, SSA will continue to compare their database against employer-submitted information, as it has for years before the issuance of the DHS rules. SSA has stricter standards for changing gender markers than many departments of motor vehicles, which has lead to employers of some transgender workers receiving notification of gender no-matches. For many of those transgender workers, this notification has effectively unwillingly revealed them as transgender in their workplace.

NCTE provided expertise on No-Matches to the groups who brought the lawsuit blocking the DHS procedures. NCTE will continue to monitor the situation and is working to stop “gender” as a category for data comparison in SSA records.

The National Center for Transgender Equality is a national social justice organization devoted to ending discrimination and violence against transgender people through education and advocacy on national issues of importance to transgender people. The National Center for Transgender Equality is a 501(c)3 organization. For more information, please visit www.nctequality.org.

Only new IDs that meet the Real ID Act standard will be acceptable for federal purposes such as air travel or entering courthouses. Due to great displeasure from state officials over serious concerns with the Real ID Act, DHS Sec. Chertoff also announced that the implementation deadline for state compliance will be extended— until December 31, 2009—from the original May 2008 date.

The National Center for Transgender Equality (NCTE) is working with attorneys from Lambda Legal, Transgender Law Center, the National Gay and Lesbian Task Force, the ACLU and others to examine the requirements released today and to plan next steps in addressing how this may impact our communities.

While the regulations and the Real ID Act itself could dramatically impact trans people in negative ways, trans people should keep the following in mind:

1. The regulations issued today are draft regulations. There is a comment period during which NCTE and many other organizations will be submitting comments to DHS about how damaging these regulations would be if implemented.
2. The Real ID Act is now not scheduled to begin implementation until December 31, 2009.
3. Since the Real ID passed in 2005, NCTE and many other organizations representing state governments, immigrants, civil libertarians and others have worked diligently to overturn the Act. (That effort has taken on steam lately, with the legislature of the State of Maine voting to refuse to comply with the Real ID Act. It is our assessment that other states will follow this lead over the next few months making implementation of the Act increasingly difficult.)
4. There are several bills before Congress supported by NCTE and many others that would repeal the Real ID Act.

But even with the newly extended deadline, the regulations do not change the fact that the REAL ID Act simply cannot work and is a serious potential threat to transgender people. Here are some ways it could impact trans people:

• It could make it almost or totally impossible for transgender people in some or all states to obtain accurate driver’s licenses, causing extreme difficulties for trans people to participate in everyday aspects of society such as driving, traveling on airplanes, purchasing alcohol or opening bank accounts.
• It will expose transgender people to routine discrimination everywhere IDs are inspected, including in employment, in schools, purchasing goods or otherwise conducting business, at any security check-in, etc.
• It would likely expose transgender people’s personal medical information to databases accessible by all local state and federal law enforcement officers and others.
• Because it would require every driver in the United States to renew their driver’s license from scratch with proof of birth, residence and citizenship, those trans people who have acquired gender changes on licenses without proof of genital surgery could lose their accurate ID.

The National Center for Transgender Equality continues to monitor the progress of the Real ID Act, how it will specifically impact transgender people, and to advocate for ways to mitigate the danger to our community. We will keep you apprised of movement around this law and ways you can be involved in the effort for its repeal.

National Center for Transgender Equality
email: ncte@nctequality.org
phone: 202.903.0112
web: http://www.nctequality.org

NCTE’s Privacy and Documentation Project will expand upon the work we are already doing around the REAL ID Act, the new privacy rules of the Health Insurance Portability and Accountability Act (HIPAA), employment I-9 “no match” letters, and the tightening of identification document rules and the rapid loosening of privacy protections.

Today in America, it is very difficult to work, travel, open a bank account, or enter a club or gym without government issued identification that accurately matches one’s identity. The importance of accurate ID is increased for transgender people who often face discrimination or violence when ID documents “out” us as trans.

Since NCTE’s founding in 2003, the demand has been overwhelming for accurate information on obtaining state and federal identification documents in one’s preferred name and gender (e.g., driver’s licenses, birth certificates, passports, Social Security cards, military records, professional licenses, school transcripts, etc.). Because obtaining updated ID is often tied to presentation of some type of medical “proof” in order to revise ID documents, significant medical privacy concerns also surround these records’ ability to disclose a person’s transgender status and confidential medical information.

Growing NCTE’s work on these issues is critical. Our new two-year grant will help us do just that. So more privacy and documentation news to come!

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[T-Equality (NCTE)]

• Police officers should never stop an individual solely because of that person’s gender presentation. Being transgender is not a crime. It is legal in the United States to cross-dress, to transition and to express your gender.
• Officers should not ask about a person’s genitals unless it is medically necessary or required to make a decision about a strip search. They should not search a person simply to determine gender.
• Safety of transgender detainees must be a major priority. Transgender people should not be housed in ways that increase the risk of sexual assault. The individual’s gender presentation should always be taken into account, not simply the configuration of their genitals.
• There may be laws that refer to gender–for example, laws requiring that female detainees be searched by a female officer–that may not address how these practices apply to transgender people. Department policies can clarify how these laws apply to transgender people who have not had SRS (sex reassignment surgery).
• Training for police is essential to educate them about applicable laws and to increase understanding.
• People of color may face additional discrimination by law enforcement officials. Activists should pay attention to the ways in which race, economic status, and appearance impact people’s experience with the police.

Marcus Arana is a Discrimination Investigator for the City and County of San Francisco Human Rights Commission, and is a member of the Board of Advisors of NCTE. He helped draft the policies and training curriculum for the San Francisco Police Department, and conducts transgender community awareness trainings for recruits and officers, which has been required since 2003.

Marcus has made available to us information about the guidelines that are currently in place in San Francisco. We’ve included information from him below so that you can see the kind of policies that are being used by an actual police department (keep in mind that these reflect the laws in effect in San Francisco). He writes:

Names, titles of respect, and pronouns: People must be referred to according to their gender identity. Transgender women are to be called “she” and “Ms.” and “Ma’am” and transgender men are to be called “he” and “Mr.” and “Sir.” Even if an individual has not changed their ID, officers are instructed to use the chosen name and the appropriate pronoun for that person. However, officers must write down the legal name on all citations and/or booking cards. So, officers are not being harassing if they write down a former, yet legal name on a citation, and a person must sign their legal name or the officer will have to arrest them. It is not considered fraud to carry an ID that has not yet been changed; however, there is no requirement for an officer to note the AKA (Also Known As) name on a citation.

Detention, searches, and transportation:People should not be detained simply because an officer thinks they are transgender. Likewise, people must not be searched to determine their gender. Officers of any gender can pat search any detainee for weapons or contraband, but they should not grope or hold a person’s genitals, especially to determine gender.

Regardless of local policies, under many state laws, arrest (strip) searches must be conducted by officers who have a genital match with the arrestee. For pre or non-operative transgender women, that means being searched by a male officer, and for pre or non-operative transgender men, that will mean being searched by a female officer. In order to avoid an awkward situation, if your genitals appear different than the officer might expect to find, it is best to disclose surgical status to the arresting officer before the search commences.

Officers may not take photographs of a person’s sexual anatomy, nor should they use any booking photos as a way to humiliate a transgender individual.

Marcus comments, “Having these policies in place does not mean that harassment against transgender people by police officers won’t happen. But, it sends a message that such behavior is unacceptable and provides the police department with the tools needed to make officers more accountable for treating transgender and gender variant people with due respect and courtesy.”

• If you are interested in helping to educate law enforcement personnel on transgender issues, please contact us for further information.
• For more information about the National Center for Transgender Equality, please see their website.

Background

SSA regularly checks to make sure that all persons working in the United States are the actual holders of the SSN that they put on their I-9 form. Further, this practice is meant to ensure that all workers eventually receive the Social Security funds that they are entitled to. In confirming this information SSA sometimes compares an employee’s gender. Because it is difficult to change your gender marker with the SSA this practice has resulted in employers receiving gender no-match letters from the SSA. Because SSA requires proof of irreversible Sexual Reassignment Surgery in order to change a gender marker, NCTE has argued that the SSA should properly regard a person’s gender as a private medical matter.

New Rules Proposed

The Department of Homeland Security (DHS) has recently proposed new rules regarding no-match letters which, if approved in their current form, could cause transgender people increased problems and exacerbate the already serious invasion of medical privacy for many workers. The proposed program is currently designed to verify employees’ work-eligibility status by identifying discrepancies with Social Security numbers and names; however, DHS and SSA often compare more information than necessary, such as gender markers. When the employer sends earnings and tax information to the government, sometimes a person’s gender is also sent. If these comparisons bring up a discrepancy with a person’s records, the DHS or SSA will send what is called a no-match letter to an employer alerting them to the problem. Transgender people have received no-match letters based on gender in the past, and while this new rule does not change that, it adds strict timelines that increase the likelihood of job loss and other problems.

NCTE’s Response

In consultation with legal experts, NCTE submitted an official comment on the proposed rule to the Department of Homeland Security on August 14, regarding flaws in the no-match letter system.

NCTE has raised four specific concerns and offered pragmatic solutions to DHS:

1. Gender no-match letters are an invasion of private and privileged medical information.

NCTE recommends that gender not be a piece of information that is transmitted or considered between employers and DHS/SSA. Because of SSA’s own policies, a person’s gender is private medical information.

2. The strict 60-day time limit in which all mismatched information must be rectified among the employer, employee, and SSA impose a heavy and unfair burden on transgender people.

NCTE recommends that the time period be extended to 90- or 120-days to allow sufficient time for individuals to process a legal name changes on all relevant government and employment documentation.

3. Transgender people and other people who have recently had a legal name change do not have ready access to multiple forms of I-9 approved identification providing their legal name.

NCTE recommends that accommodations be expressly written into the no-match letter procedures allowing for differences in identification requirements for people who have gone through legal name changes.

4. The anti-discrimination aspects of the proposed procedure need to be strengthened to explicitly protect transgender people from adverse employment action.

NCTE recommends that explicitly protections for persons whose appearance might not match the social norms associated with their gender or their name be included in the proposed rule by expanding the existing protective language regarding foreign appearance or accent.

What you can do?

If you or anyone you know has received a letter based on a gender or legal name no-match issue, please call NCTE and let us know. We can provide advice and/or refer you to appropriate legal counsel. It is important that we track as many instances of these letters having impact on our community as possible. View the text of the proposed rule change.