PASSPORT TO FREEDOM

How Hillary Clinton Moved Trans Rights Forward

In 2010, Clinton approved a passport policy that allows transgender people to change their status using a doctor’s note. Six years later, it’s still quietly paying dividends.

03.24.16 5:05 AM ET

In 2011, a transgender woman working in the Illinois construction industry wrote an email to then-Secretary of State Hillary Clinton (PDF).

“I have applied at well over 300 job openings since 2007,” she wrote. “I was able to get about a dozen interviews and as soon as they found out I was a transgender person, all bets were off.”

Even though Illinois is one of 19 states that prohibits discrimination based on both sexual orientation and gender identity, she explained, “the truth of the matter is you cannot work for someone that does not want you there.”

The woman goes on to describe how a subtle but significant change in U.S. passport policy helped her gain employment.

In June 2010, as the National Center for Transgender Equality (NCTE) notes, Secretary Clinton’s State Department began allowing transgender people to change passport gender markers with a physician’s certification that they had received “appropriate clinical treatment for gender transition.” For the first time, sex reassignment surgery (SRS) was not required to make the correction.

The state of Illinois, on the other hand, still does not allow transgender people to change the gender listed on their birth certificate unless they have had “an operation(s) having the effect of reflecting, enhancing, changing, reassigning or otherwise affecting gender.”

But the new passport policy reportedly helped the Illinois woman—whose name was redacted by the State Department in the Clinton email dump—start a new company and get it certified as a female-owned business (FBE).

“The passport change made a major impact,” she wrote. “When I went to my state to begin the process [of FBE certification], I stated, ‘My country accepts me as a woman and this state should as well.’”

At the time she wrote the email to Secretary Clinton, she said that she was back to work and had hired two previously unemployed people as well.

The message took a circuitous route to Clinton’s desk. The transgender woman sent it to Rocco Claps, director of the Illinois Department of Human Rights, who then sent it to Clinton’s grade-school friend Betsy Ebeling, who forwarded it to the secretary along with a personal message.

“Gertie,” she wrote, using her pet name for Clinton, “as I have said, I am very proud of you.”

“Thanks, my friend,” Clinton replied. “I will respond directly.”

With Democratic debate moderators failing to ask basic questions about LGBT rights even in the midst of a multi-state legislative attack on transgender people, neither of the remaining candidates have generated much buzz about their policies in this area. That email exchange, for instance, has yet to be reported.

Both Bernie Sanders and Clinton support adding sexual orientation and gender identity to the Civil Rights Act of 1964, and both have progressive platforms on transgender rights. But after the legalization of same-sex marriage, public attention to LGBT issues seems to be fading, with many falsely believing the war is over.

Many Americans are unaware of the difficulties transgender people face in changing gender markers on government IDs. According to the National Transgender Discrimination Survey, only 21 percent of transgender people have the proper gender on all forms of ID and a third have not been able to update any documents whatsoever.

The Clinton campaign mentions the passport policy change on her website, of course, but with much of the country hung up on whether or not transgender people should be allowed to urinate in peace, that selling point may seem boring and bureaucratic to outsiders.

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But for transgender people like the anonymous Illinois construction worker, the effects have been palpable. Over the last six years, the State Department’s change in passport policy has quietly influenced laws around government identification for transgender people—laws that directly affect employment, housing, and public accommodations.

And for Clinton, who was endorsed by the Human Rights Campaign but often takes flack from the left for her late support of marriage equality and other LGBT missteps, not touting the 2010 passport policy more loudly marks a missed opportunity to solidify her position as a civil rights candidate.

It’s not that the Democratic frontrunner has been silent about her transgender record.

Her office issued a press release about it. Shortly thereafter, Clinton “proudly spoke” about the passport policy at a Pride event, NCTE’s Harper Jean Tobin reported. The new policy was reported widely in national media.

But in 2014, NPR host Terry Gross seemed surprised that it had happened. She asked Clinton in a radio interview about the passport policy and about her addition of gender identity to the State Department’s equal employment opportunity statement, wondering aloud if Clinton had to “sneak that in without a lot of attention.”

“Well, I don’t know how quiet it was,” Clinton replied. “Even before I did that, I spoke to the LGBT employees at the State Department. I was aware of their hopes for some changes that might make it easier for them to be the professionals that they had signed up to be. And I don’t think it was any big secret—I think it was part of the overall efforts to try to treat people with dignity and equality.”

But even though the State Department policy changes weren’t clandestine, public awareness of their significance is still low. As Gross admitted in the preface to her question, “I didn’t know you had done that.”

In terms of federal-level recognition of transgender rights, the 2010 passport policy was epochal. NCTE Executive Director Mara Keisling told The Advocate that transgender advocates had been asking for new passport policy since at least 2000.

“Most of the kudos has to go to the State Department and Secretary Clinton and the Obama administration,” she said. “This is a huge win.”

For transgender Americans living in the 14 states that require SRS to change the gender marker on a driver’s license, the new passport policy marked the first time that many of them could receive a government ID matching their gender. For those living in other states—or who had already received SRS—it allowed them to have the same gender on their passport as they had on their driver’s license.

In addition to the domestic ramifications of having proper federal ID, the new policy also opened doors for foreign travel.

“It’s going to save lives,” Keisling said at the time. “It’s actually dangerous to get outed in some foreign countries as transgender. I’ve had friends who were harassed because their gender marker didn’t match who they appeared to be.”

Prior to the policy change, surgery was a major hurdle for many transgender people seeking to update their passports.

SRS is prohibitively expensive out-of-pocket and even though it would place almost no burden on insurers, many companies explicitly exclude that coverage. Given that transgender people are almost four times more likely to be living in poverty than other Americans, getting a new passport may have been financially out of reach for many prior to 2010.

And although SRS is acknowledged by major medical associations as being medically necessary in many cases (PDF), some transgender people do not seek surgery as part of their treatment for gender dysphoria. For this subset of the population, updating the gender markers on a passport used to be impossible.

The State Department’s 2010 passport policy cleared these obstacles away by relying on recommendations from the World Professional Association for Transgender Health (WPATH), which has laid out detailed standards of care for transgender patients. WPATH acknowledges that treatment for gender dysphoria can vary by individual, and that many legal barriers to changing ID are “harmful to trans people’s health” (PDF).

Not only did the new policy make it easier for all transgender people to acquire a federal ID with a new gender marker, it also served as a key reference point for a slate of other federal and state-level changes.

In 2013, for example, the Social Security Administration adopted a gender change policy nearly identical to the State Department’s, requiring only “medical certification of appropriate clinical treatment for gender transition” in lieu of proof of SRS. That policy has been crucial for transgender people who do not wish to be outed to employers.

With federal regulations changing thanks to a largely trans-friendly Obama administration, state laws around driver’s licenses and birth certificates have been falling in line at an extraordinary pace, even in some conservative parts of the country. Now, the majority of states do not require SRS to update a driver’s license. Modernized birth certificate laws are inching across the halfway point.

And six years later, the State Department’s policy change is still paying dividends for transgender people.

Earlier this month, for example, the Michigan Secretary of State announced that the state would accept passports as proof of gender for updated driver’s licenses and state IDs. That change came after the American Civil Liberties Union (ACLU) filed a lawsuit against the state on behalf of six transgender plaintiffs who had been refused updated state identification.

The ACLU was able to use the fact that Michigan’s former policy “stands in contrast with the decisions of the federal government” as leverage in its legal complaint (PDF). The first such federal decision the legal nonprofit listed was the State Department’s 2010 passport policy. Two plaintiffs in the case had passports with the correct gender markers but were still denied updated driver’s licenses.

The ACLU will be pushing for an even simpler policy, but now, those plaintiffs—and many other transgender people in the state—will be able to update their ID thanks, in part, to Clinton’s State Department.

Clinton herself hasn’t claimed a tremendous amount of responsibility for advancing transgender rights in the United States, nor should she. The progress of recent years can be attributed to a long history of transgender activism and to key players in the Obama administration, of which the former secretary of state is just one.

But with transgender rights on the line across the country, Clinton’s role shouldn’t be forgotten, either. Six years ago, her State Department added momentum to a movement that has protected transgender people’s jobs and helped them travel abroad. As her childhood friend wrote, that should indeed be something to be proud of.