Department of Justice Clarifies Police, Courts, Shelters, and Others Must Respect Gender Identity
This week the U.S. Department of Justice (DOJ) release long-awaited guidance on the 2013 law prohibiting discrimination based on sex, sexual orientation, and gender identity by entities funded under the Violence Against Women Act (VAWA). VAWA’s nondiscrimination protections provide broad protections, not only for LGBT survivors of domestic violence, sexual assault, and stalking, but for anyone else facing discrimination from law enforcement agencies, courts, or community groups that accept VAWA funding for any part of their operations. The guidelines clarify that refusing to accept a person’s self-identified gender when delivering services constitutes unlawful discrimination, and that in many cases segregating by gender in the first place is prohibited.
The guidance, from DOJ’s Office on Violence against Women, answers “Frequently Asked Questions” about the nondiscrimination law included in the 2013 reauthorization of VAWA, which for the first time explicitly prohibited discrimination based on sex, sexual orientation, and gender identity in any program or activity funded in whole or in part by VAWA. Critically, the guidance clarifies that all VAWA-funded services must be open to all persons regardless of gender. Sex-segregated programs are permitted only when an agency can prove the services can’t be provided any other way—in which case, fully equivalent services must be provided to people of all genders.
“Too often, LGBT people have been turned away from help, whether by police, shelters, counselors, or the courts,” said Harper Jean Tobin. “That can’t happen any more. Programs need to re-examine their current practices and ensure everything they do is equally available to all.”
In those limited settings where sex-segregated programs are justified, DOJ’s guidance makes clear that programs must respect each person’s gender identity. This means that transgender women must be welcomed in shelters and other services for women, and transgender men must be able to access services for men. DOJ’s guidance further states that programs may not limit access simply because some individuals are uncomfortable being around a transgender person of the same self-identified gender. The guidance clarifies that staff should assign individuals to services based on the individual’s self-reported gender, and should not subject individuals to invasive questions regarding their anatomy, medical history, or other documentation.
“This is a groundbreaking statement that under federal law, nondiscrimination means respecting each person’s gender identity. No more can transgender people be told they’re not the gender they say they are,” said Tobin.
VAWA funds many state and local agencies and programs, including many rape crisis centers, domestic violence shelters, legal services, housing programs, education and prevention campaigns, courts, prosecutors, police and sheriff’s departments. If an entity takes VAWA funds for any part of its operations, it is forbidden from discriminating in all of its operations. Religious organizations accepting VAWA funds are not exempted from protections for those they serve.
Anyone experiencing discrimination in programs that may be funded by VAWA is encouraged to file a complaint with the DOJ’s Office for Justice Programs, at: http://ojp.gov/about/ocr/complaint.htm. A list of entities currently funded by VAWA is available at: http://www.ovw.usdoj.gov/grantactivities.htm.