Emerging Transgender Issues and the Law: Medical and

Emerging Transgender Issues and the Law: Medical and

Emerging Transgender Issues and the Law: Medical and Legal Update CAPT Lisa Cartwright Megan M. Weis Chair, BUMED Transgender Working Group Special Counsel to the General Counsel [email protected] Army Office of the General Counsel 202-560-3759 Emerging Transgender

Issues and the Law: Medical Management for Gender Transition for Transgender Individuals Overview

Definitions Gender Dysphoria Standards of Care Gender Transition Timeline Definitions Gender Identity A persons intrinsic sense of being male, female, or alternative gender Definitions

Natal Gender Gender assigned at birth Definitions Transgender1 Diverse group of individuals who cross or transcend culturally defined categories of gender Gender identity differs to varying degrees from natal gender Definitions

1 Female-to-male (FtM) Natal female who has changed or is changing body and/or gender role to a more masculine body or role Male-to-female (MtF) Natal male who has changed or is changing body and/or gender role to a more feminine body or role

Definitions Gender Dysphoria Discomfort or distress caused by discrepancy between Gender Identity and Natal Gender 1 Definitions Gender Dysphoria in Adolescents and Adults (DSM 5) 2 Marked incongruence between ones experienced/expressed gender and assigned gender, (at least 6 months) Associated with clinically significant distress or

impairment in social, occupational, or other important areas of functioning Definitions Gender Dysphoria in Adolescents and Adults (DSM 5) 2 incongruence between ones experienced/expressed gender and assigned gender, manifested by at least two of the following: incongruence between ones experienced/expressed gender and sex characteristics desire to be rid of ones sex characteristics because of incongruence desire for the sex characteristics of the other gender

desire to be of other gender desire to be treated as the other gender conviction that one has typical feelings/reactions of other gender Gender Dysphoria 2 Often, but not always, accompanied by a desire to be rid of sex characteristics and/or a desire to acquire sex characteristics of the other gender May adopt the behavior, clothing, and mannerisms of the experienced gender Uncomfortable regarded by others, or functioning, as assigned gender

May have a strong desire to be of a different gender and treated as such without seeking medical treatment to alter body characteristics. Definitions Gender nonconforming Individual whose gender identity, role or expression differs from cultural norms prescribed for people of a particular sex1 Differs from gender dysphoria due to absence of strong desire to be of another gender2

Gender Dysphoria 3 Replaces gender identify disorder Gender nonconformity is not itself a mental disorder Only some gender non-conforming people experience gender dysphoria at some point in their lives CRITICAL ELEMENT is clinically significant distress associated with the condition Definitions

Disorder of Sexual Development (DSD) Congenital conditions where development of chromosomal, gonadal, or anatomic sex is atypical A. k. a. intersex Definition Transvestism (cross dressing) 1 Wearing clothing and adopting a gender role presentation that, in a given culture, is more typical of the other sex1 Paraphillic disorders

Voyeuristic disorder Spying on others in private activities Exhibitionistist disorder Exposing genitals Frotteuristic disorder Touching or rubbing against non-consenting individual Sexual Masochism disorder Undergoing humiliation, bondage, or suffering

Sexual Sadism disorder Inflicting humiliation, bondage or suffering Pedophillic disorder Sexual focus on children Fetishistic disorder Focus on nongenital body parts Transvestic disorder Engaging in sexually arousing cross dressing

2 Definitions Transition 1 Period of time when individuals change from natal gender to different gender role May include Learning to live socially in another gender role Finding most comfortable gender role and expression Feminization or masculinization of the body through hormones or medical procedures

VARIABLE and INDIVIDIUALIZED nature and duration WPATH (World Professional Association for Transgender Health) International multidisciplinary professional association to promote evidence-based care, education, research advocacy, public policy , and respect in transsexual and transgender health. 1 Articulates Standards of Care (SOC) for Transgender, Transsexual and GenderNonconforming individuals

WPATH Standards of Care (SOC) 1 Flexible Clinical guidelines which may be modified by individual health professionals and programs Unique patient situation Professionals evolving practice Research protocol Lack of resources Transgender Prevalence ???

Mostly derived from clinics where patient meet criteria for severe gender dysphoria Reported prevalence1 1:11,900-45,000 MtF 1:30,400-200,000 FtM True prevalance is likely much higher Gender Dysphoria Psychological and Medical Treatment Highly individualized Change gender expression and role

Hormone therapy Surgery Both hormone therapy and surgery Neither hormones or surgery Psychotherapy Gender Dysphoria Social Support and Gender Expression Changes

Peer support Support for family/friends Voice/communication therapy Hair removal Breast binding/padding; genital tucking Name change and gender change on identity documents

Psychotherapy (WPATH SOC)1 Mental health screening REQUIRED for hormonal or surgical treatment Psychotherapy Highly recommended NOT required Hormone Therapy (WPATH SOC)1

Medically necessary for many individuals with Gender Dysphoria Recommended prior to some, not all, surgical treatment Hormone Therapy Criteria (WPATH SOC)1 Referral from one mental health provider Persistent, well documented Gender Dysphoria Informed consent capacity

Age of majority Reasonably well controlled medical and mental health concerns Hormone Therapy Informed Consent (WPATH SOC)1 May result in irreversible physical changes Document Comprehensive information provided Possible benefits Risks

Impact on reproductive capacity Hormone Therapy Effects Occur over course of 2 years Variable timeline Variable effects Hormone Therapy Effects FtM

Deep voice Variable clitoral enlargement Facial/body hair Cessation menses Breast atrophy Decreased body fat %

Reduction in fertility Hormone Therapy Effects MtF Breast growth

Erectile dysfunction Decreased testicular size Increased body fat % Reduction in fertility Hormone Therapy Risks1 Risk level MtF FtM

Likely increased Venous thromboembolism Gallstones Elevated Liver Enzymes Hypertriglyceridemia Polycythemia Weight gain Acne Balding Sleep apnea

Likely increased in the presence of risk factors Cardiovascular disease Possible increased Hypertension Hyperprolactinemia / prolactinoma Elevated liver enzyme

Hyperlipidemia Possible increased in presence of risk factors Type 2 Diabetes Destabilization of psychiatric disorders Cardiovascular disease Hypertension Type 2 Diabetes

Not increased or inconclusive Breast Cancer Bone density loss Breast cancer Cervical cancer Ovarian cancer Uterine cancer

Hormone Therapy follow-up 2-3 months initially to stabilize on dose Every 2-3 months for first year Annual consultation with endocrine after first year Potential 1 year non-deployable form initiatation Sex Reassignment Surgery (WPATH SOC)1 Breast/chest

Genital Non-genital/ non-breast MtF Breast augmentation Penectomy Orchiectomy Vaginoplasty Clitoroplasty Vulvoplasty

Facial feminization Liposuction/Lipofilling Voice surgery Thyroid cartilage reduction Gluteal augmentation FtM mastectomy Hysterectomy/salpingectomy Oophorectomy Metoidioplasty

Phalloplasty Vaginectomy Srotoplasty Penile prosthesis Testicular prosthesis Voice surgery (rare) Liposuction/lipofilling Pectoral implants Sex Reassignment Surgery Criteria (WPATH SOC)1

Breast/chest surgery FtM Single referral Persistent, well-documented gender dysphoria Informed consent capacity Age of majority Well controlled mental and medical health concerns Hormone therapy NOT prerequisite Sex Reassignment Surgery Criteria (WPATH SOC)1

Breast/chest surgery MtF Single referral Persistent, well-documented gender dysphoria Informed consent capacity Age of majority Well controlled mental and medical health concerns Hormone therapy NOT prerequisite RECOMMEND at least 12 months prior to breast augment Sex Reassignment Surgery Criteria (WPATH SOC)1

Genital (gonadectomy / hysterectomy) Two referrals Persistent, well-documented gender dysphoria Informed consent capacity Age of majority Well controlled mental/medical health concerns 12 continuous months of hormone therapy Sex Reassignment Surgery Criteria (WPATH SOC)1

Genital (FtM metoidioplasty/phalloplasty; MtF vaginoplasty) Two referrals Persistent, well-documented gender dysphoria Informed consent capacity Age of majority Well controlled mental/medical health concerns 12 continuous months of hormone therapy 12 continuous months living in desired gender role (real life experience) Real Life Experience

Present consistently on day-today basis, across all settings of life in their desired gender role 12 months allows full range of life experiences throughout the year Transition Timeline Summary Transgender people may develop Gender Dysphoria Treatment for Gender Dysphoria may require hormonal or surgical treatment for gender

transition Gender transition is highly variable among individuals References 1. Standards of Care for the Health of Transsexual, Transgender, and GenderNonconforming People, Version 7. Coleman, E., Bockting, W., Botzer, M., CohenKettenis, P., DeCuypere, G., Feldman, J.,Fraser, L., Green, J., Knudson, G., Meyer, W. J., Monstrey, S., Adler, R. K., Brown, G. R.,Devor, A. H., Ehrbar, R., Ettner, R., Eyler, E., Garofalo, R., Karasic, D. H., Lev, A. I.,Mayer, G., Meyer-Bahlburg, H., Hall, B. P., Pfaefflin, F., Rachlin, K., Robinson, B., Schechter, L. S., Tangpricha, V., van Trotsenburg, M., Vitale, A., Winter, S., Whittle, S.,Wylie, K. R., & Zucker, K. International Journal of Transgenderism, 13:165232, 2011 2. Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition Edited by

American Psychiatric Association, 2013. 3. American Psychiatric Association (APA) statement , Gender Dysphoria in the DSM-5. www.psychiatry.org , 2013. Emerging Transgender Issues and the Law: Legal Update Office of the General Counsel Agenda 1.

2. 3. 4. Corrections Civilian Other Countries U.S. Military 42 Corrections

8th Amendment- deliberate indifference to a prisoners serious medical need - serious or significant physical or emotional injury, or substantial risk of - reckless disregard Gender Dysphoria as a serious medical need Prison security needs 43

Corrections-BOP BOP Transgender Resource Guide, November 2014 Prison Rape Elimination Act (PREA) 44 Corrections-Military Manning Has sued for medical care for gender dysphoria under 8th Amendment. Army Court of Criminal Appeals :

"Reference to appellant . . .either be neutral . . . or employ a feminine pronoun." 45 Civilian- Legal Developments Title VII of the Civil Rights Act of 1964 Executive Order 11478 (Amended July 2014) Agency Guidance

DOJ Positions 46 Title VII Unlawful for employers to discriminate in the employment of an individual because of such individuals . . . sex. Does not contain an explicit prohibition of discrimination on the basis of sexual orientation or

gender identity or expression. Sex-sterotyping theory 47 Title VII Macy v. Holder (EEOC April 20, 2012) EEOC ruled that discrimination on the basis of gender identity is discrimination based on sex. 48

Executive Order 11478 (amended) It is the policy of the Government of the United States to provide equal opportunity in Federal employment for all persons, to prohibit discrimination in employment because of race, color, religion, sex, national origin, handicap, or age, sexual orientation, gender identity, or status as a parent. 49

Agency Guidance OPM: Federal governments policy of providing a workplace free from discrimination based on sex includes discrimination based on gender identity OSHA: Restroom access HHS: Proposed Rule addressing nondiscrimination in federal health care programs 50

DOJ Positions Attorney General MemorandumTitle VII discrimination based on gender identity constitutes sex discrimination Statements of Interest Title IX and Equal Protection Clause 51 Other Countries

52 Veterans VA: providing care to transgender patients DoD: name change on DD 214s 53 U.S. Military Working Group established- 28 July 2015 Start with the presumption that transgender

persons can serve openly without adverse impact on military effectiveness and readiness. No service member shall be involuntarily separated or denied reenlistment or continuation of active or reserve service on the basis of their gender identity without the personal approval of the USD(P&R). 54 Questions?

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