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Trans* Rights: This Generation's Civil Rights Issue --- How to Put on Your Law Enforcement Liability Vest

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As America continues to grow and morph as a social melting pot of differences, the issue of civil rights of each group rises to the forefront of our attention and becomes a matter to which law enforcement personnel must adjust. We adjusted during the '60s and '70s, evolving to recognize the rights of women and African Americans. We also evolved during the '90s to recognize the rights of lesbians and gays. Law enforcement, often the social leadership of American society, has also become diversified with the addition of women and minorities, as well as gay and lesbian officers, within their ranks.

In recent years, the trans* community has come forward and demanded that its rights and protections be recognized more fully and effectively. Vice President Joe Biden has stated that protection of the rights of transgender individuals is the "civil rights issue of our time." The Equal Employment Opportunity Commission ruled in April 2012 that trans* people are protected under Title VII Employment Discrimination Protections. The U.S. Department of Justice issued specific guidelines in May 2012, under the 2003 Prison Rape Elimination Act (PREA), that specifically orders law enforcement to "incorporate unique vulnerabilities of lesbian, gay, bisexual, transgender, intersex and gender nonconforming inmates into training and screening protocols."

Being trans* is based on one's gender identity and is separate from sexual orientation. Being trans* means that one's birth-assigned sex and gender identity are not the same. For example, someone with a male birth-assigned sex and a female gender identity may self-identify as a trans woman. However, some trans* people live between the binary identities of "male" and "female," and some trans* people do not recognize the gender binary of "male" and "female" at all. According to a study by Gary J. Gates of the Williams Institute at UCLA, about 3.8 percent of the U.S. population identifies as lesbian, gay, bisexual or transgender (LGBT). This amounts to approximately 9 million LGBT persons combined, of whom an estimated 700,000 identify as *trans.

Trans* individuals have been recognized in societies on every continent for as long as written history has existed and are generally grouped with gay, lesbian and bisexual persons. In some cultures they have been honored for their uniqueness. In others they have been shunned and discriminated against. Until recently, most have been "closeted" because of their fear of being discovered and persecuted.

In a recent national survey, "Hate Violence Against Lesbian, Gay, Bisexual, Transgender, Queer and HIV-Affected Communities in the United States in 2010," 50.1 percent of transgender survivors (victims) of crime did not report the crime to police, and 61 percent of survivors experienced indifferent, abusive or deterrent police attitudes when they did report the crimes. Perhaps more striking is the fact that 75 percent of transgender men and 20 percent of transgender women did not receive needed medical attention for their injuries.

Another concern to law enforcement is the fact that officers and agencies across the nation are embroiled in civil suits stemming from mistreatment of trans* individuals. Many of these lawsuits are about the indifference shown by some officers when a trans* individual is arrested and then put on display for other officers. In some cases officers were performing pat-downs just to determine a person's anatomical makeup. Other lawsuits have been filed over acts of humiliation and taunting by officers, negligence in the performance of duty, and failure to protect. Many of these actions stem from personal biases, prejudices and misinformation, compounded by little or no training in the subject of trans* people. All these areas could be actionable, and failure to do something about it could cost agencies untold amounts in punitive damages.

Fortunately, some departments are taking actions to educate their officers and reach out to the trans*, gay, lesbian and bisexual communities with the creation of special liaison officers. These agencies and their officers are building relationships between the agency, its officers and members of these marginalized groups by interacting with them and giving these communities a voice. Education on these issues is critical for everyone in the criminal justice system so that all people, regardless of sex or gender identity, are treated equally and with dignity and respect.

Here are some valuable questions to ask regarding your agency:
  • Has your department passed up an opportunity to reach out for training in this area?
  • Are you vulnerable to a lawsuit because training was available but you refused it? Are your officers properly trained to protect the trans* community?
  • How would your officers respond to a person who looks like a man but who presents identification that states that they are female? Will your officer's reaction be laughter and taunting? Or will they react with understanding and professionalism?