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Legal Update Article

Biden Administration Marks Transgender Visibility Day With Plan of Support

On Transgender Day of Visibility 2022, March 31, the Biden Administration published a Fact Sheet outlining its dedication to equality and visibility for transgender, non-binary, and gender non-conforming Americans. The publication highlights the federal government’s support of transgender Americans and identifies the many steps it has taken and will continue to take.

The Administration seeks to make the federal government a model employer for transgender equality and visibility. In line with this, federal agencies must build inclusive cultures for transgender and non-binary and gender non-conforming employees by expanding the availability of gender-neutral facilities in buildings. They also must ensure transgender employees who wish to legally, medically, or socially transition receive adequate support. Further, the agencies are advancing the use of non-binary gender markers and pronouns throughout employment processes. Finally, the agencies are expanding access to gender-affirming care and inclusive health benefits. To better inform the government how to best serve transgender and non-binary Americans, the Department of Health and Human Services has released a comprehensive, new consensus study on Measuring Sex, Gender Identity, and Sexual Orientation. 

Additionally, several items outlined in the Fact Sheet touch upon an array of industries, including education, transportation, and healthcare. Among the list, the Administration reiterated its commitment to protecting transgender and non-binary students. It seeks to guarantee educational environments free from sex discrimination, including discrimination on the basis of sexual orientation or gender identity through protections and enforcement under Title IX of the Education Amendments Act. To promote a safe educational experience for transgender students, the Department of Education has published several resources for students, parents, and educational institutions.

Medical providers for transgender patients also were provided information from The National Child Traumatic Stress Network, which is managed by the Substance Abuse and Mental Health Services Administration. This information consists of material for providers confirming that providing gender-affirming care is neither child maltreatment nor malpractice.

The Fact Sheet noted that the Social Security Administration is removing the requirement that, to update their gender information in their social security record, transgender people prove identity with doctors’ notes. This serves to improve access to retirement benefits, healthcare, and employment for transgender Americans.

The travel industry was another industry noted. Secretary of State Antony J. Blinken announced that, as of April 11, 2022, citizens will be able to select “X” as their gender on U.S. passport applications. The “X” will be defined as “Unspecified or another gender identity.” Before this, the Department of State eliminated any requirement to provide medical documentation of gender identity for passport applications. This is just the beginning of similar changes that Secretary Blinken said will be implemented for other forms of documentation in the coming year.

The Department of State has also worked with federal government partners to update its advice to LGTQI+ travelers. In conjunction with this, the Transportation Security Administration (TSA) has announced ways that it will improve the screening process for all passengers at TSA checkpoints over the coming months. Among other changes, the TSA will be replacing gender-based screening systems with more accurate and less intrusive technologies, reducing the number of pat-down screenings, streamlining identity validation by removing gender information, updating the TSA Pre-Check application to include the “X” gender marker, and launching an Inclusion Action Committee to review all the agency’s practices and policies.

Concurrent with these changes, the TSA is working with air carriers across the nation to promote the use and acceptance of the “X” gender marker. To date, two private air carriers offer the “X” gender marker on their reservation systems and another will begin to do so in the fall.

Significantly, the Equal Employment Opportunity Commission (EEOC) is adding the “X” gender marker to its intake process for charges of discrimination. In addition, consistent with the EEOC’s mission of enforcing anti-discrimination laws for all workers, the Departments of Health and Human Services, Housing and Urban Development, Education, and Justice and the Consumer Financial Protection Bureau have expanded non-discrimination protections for transgender and non-binary people in healthcare, housing, education, credit and lending services, and community safety programs.

These are but a few of the many steps identified in the Fact Sheet that the Biden Administration has taken or will take to protect transgender Americans. Please contact the Jackson Lewis attorney with whom you work for any questions regarding the Fact Sheet.

© Jackson Lewis P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome. 

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