VICTORY: State Department Makes Additional Changes

The U.S. State Department has announced some small but important additional changes to its policy for updating gender on U.S. passports and Consular Reports of Birth Abroad (CRBAs). The changes make clear that any physician who has treated or evaluated a passport applicant may certify that he or she has had appropriate treatment for gender transition. The revised policy also clarifies language and procedures to ensure that individuals with intersex condition can obtain documents with the correct gender.

In June 2010, the Obama Administration announced a new policy for updating gender markers on passports and CRBAs. For the first time, the June policy enabled transgender people to a passport that reflects their current gender without providing details of specific medical or surgical procedures. Instead, applicants could provide certification from a physician that they had received “appropriate clinical treatment” for gender transition. This policy was the result of years of advocacy, and represented a significant advance in providing safe, humane and dignified treatment of transgender people.

The policy announced in June was a huge step forward, but it was not perfect. It contained rigid and unnecessary restrictions on which physicians could write supporting letters for applicants, and contained confusing provisions regarding people with intersex conditions. With input from NCTE and other organizations, the Department moved swiftly to clarify and improve the policy. The passport policy as it now stands represents a model that other federal agencies, such as the Social Security Administration and U.S. Citizenship and Immigration Services, should move swiftly to adopt.

NCTE has prepared a revised resource that fully explains the new guidelines and outlines the ways in which transgender people can make changes to their passports and CRBAs. We are thankful for our colleagues at the Council for Global Equality, the National Gay and Lesbian Task Force and the National Center for Lesbian Rights for their wonderful collaborative work on this vital issue.

When you are traveling, what should you do?

Mara Keisling, NCTE Executive Director

From Mara Keisling

We work hard at NCTE to provide solid, useful advice to the community.  What advice to give isn’t always perfectly clear, though.  Over the last few months, we’ve had several policy areas in which we have tried to convey information but have been unable to give unequivocal advice.  The questions we have received most frequently since just before Thanksgiving have been about the new TSA security protocols and this has been an especially challenging issue for us to unequivocally tell trans people the best way to avoid being demeaned in potentially traumatic ways.  The new TSA procedures, in addition to being ineffective and counter to American privacy standards also present trans people with an array of bad choices, each potentially as disheartening and potentially dangerous as the next.  Let me explain.

It is really important that people refrain from panic and make rational decisions.  The truth is that most trans people are not experiencing significant problems when flying—even when faced with whole body scanners and enhanced pat downs.  But some are not.

And I understand that refraining from panic or anger can be hard when an irrational and ineffective system is set up and forced upon us.

First, let me say that we have been working with the TSA on trans education for several years.  And, along with allies, we have specifically been in touch with them on multiple occasions since the new patdown protocols were implemented.  We are hopeful that the TSA will soon issue guidance and training for their officers about transgender people and our issues.  We are NOT hopeful that the TSA will reverse itself and eliminate either the enhanced patdowns or the whole body imagers in the near future but we’ll keep working at it.  Still we are in pretty frequent contact with the civil rights office at TSA and with members of Congress.

For now, here’s where we are.  We are suggesting that all trans people—and gender non-conforming people regardless of whether they are trans-identified—carefully consider their choices.  Trans people who have genitals and chests that generally fit with what most TSA agents would expect probably are at no greater risk of disrespect or indignity than they were before whole body scanners and enhanced patdowns.  Realistically, though, that’s not most of us.

One choice, of course, is to not fly.  That isn’t a choice for many people though, and additionally, in recent months there has been more and more official talk about starting to implement tighter security on other forms of transportation including trains, subways and ferries.  The DC subway system, for instance, just implemented a random bag search.  Hopefully this won’t spread too much, but who knows?

Remember, lots of transgender people fly everyday and most get through all security with no significant hassles or indignities.  We have heard a handful of extremely horrible stories and there are no doubt more out there that we haven’t heard, but more trans people than not report flying safely and comfortably. And also remember, this isn’t just a trans problem.  It is also causing terrible problems for people of various religions (Orthodox Jewish women with wigs, Sikhs with ceremonial daggers [kirpan], chemotherapy patients with chemo pumps, people with prosthetic limbs, etc). Here is a good article that discusses this:  http://www.washingtonpost.com/wp-dyn/content/article/2010/12/22/AR2010122202919.html.

So, for those who do need to or want to fly, there are things you can do that can minimize the likelihood of a serious privacy problem.  These are listed on our new resource at http://transequality.org/Resources/KYR_TSA.pdf. We also have resources with more details about the whole body image scanners and about recent TSA booking requirements.  This is a really great resource that presents the information I’m giving here in a more systematic way.

In short though, here are some things to think about if you are flying while trans.

Any meds, needles, etc, that you can put in checked luggage, the better.

Transportation Security Officers (TSOs) are trained to look for anomalies–that is things that are different than expected.  More specifically, in terms of the scanners, which allow them to see all your body contours under your clothes, they are looking for foreign objects.  They are designed to find guns, explosives, drugs, etc., but they can also see–and overreact to–binders, packers, wigs, breast forms.)  Any of these things, while completely legal to travel with, may attract attention of TSOs and lead to increased scrutiny of your person.

There are only about 500 whole body scanners deployed at US airports with another 500 planned for 2011.  This means that, as of now, only about one quarter of the 2,000 security checkpoint lanes at US airports have them and the other 1,500 lanes have the old style metal detectors, which will generally be a better choice for trans people.  While you are not permitted to request going through an old metal detector instead of a whole body scanner, if you happen to notice security lines with the old detectors, you should probably try to get in one of those lines.

If you do end up in a line with the whole body image machine (these are much bigger and more booth-like than the traditional metal detector), you can request to receive a patdown instead.  It is the consensus in our office that, if you are wearing a packer or binder, you might as well ask for a patdown since going through the whole body scanner with those or any foreign object will almost certainly cause TSOs to request they do a patdown on you anyway.

I have been through the scanner multiple times so let me tell you how it goes.  First, they ask you to make sure nothing is in your pockets, since any foreign object is seen.  If you have a binder or packer or post-surgical bandages or pack of gum the machine will see them and the TSO will ask about them and may demand to see them.  You stand in the booth with a TSO standing right in front of you.  The TSO has an earpiece through which she listens to a person who is in a remote location outside of the terminal looking at the scan of your body contours.  The person you can’t see will say to the TSO in front of you either “all clear” or “anomaly.” If there is an anomaly, the TSO will be told what part of your body the anomaly is on.  If the TSO is told there is an anomaly, the TSO will either ask you what is the anomaly is “in your groin area” (for instance) or the TSO will tell you that you need to get a patdown.

Unfortunately, we have also heard stories from two people who went through the scanners and were flagged for patdowns and further scrutiny without the presence of foreign objects.  One was a trans man who was thought to be suspicious because his genitals did not match what would be expected by the TSO for a man; another was a butch woman in a man’s suit flagged as suspicious because the scanner people decided she was a woman in a man’s suit.  This is of course extremely outrageous and we have forwarded these stories to TSA. It is also an exception to the rule.  One thing we have not been able to ascertain from the TSA yet is how the person looking at the scan would know that a traveler was presenting as a man or woman.  The person looking at the scan from a remote location is only supposed to know what is on the screen shot of your naked body.  So if she thinks the person has “female body parts”, she should have no other information to contradict that; she has not seen your ID or your ticket or what clothes you are wearing.

If you are told that you need a patdown, you cannot refuse if you still want to fly. If you are having a patdown because either you selected it or because they told you that you had to, you have a right to have a patdown by a person of the same gender “as you are presenting.”  From the stories we are hearing, it appears that generally, you will have more than one TSO of your presenting gender there for the patdown.  Because the TSA is pretty secretive about many of its policies, some of what we know is from hearing stories from travelers.

The patdowns are themselves surprisingly invasive, including the TSO actually making significant contact with your genitals through your clothes.  This of course can be extremely traumatic to transgender and other people who have good reason to react strongly to such invasiveness.  During the patdowns, they will likely find any chest binder you might be wearing and ask you about it, likely asking to see it.  Some packers are likely realistic enough not to be regarded as an anomaly in a patdown, but not in the scanners.  We are hoping to hear from travelers who get patdowns while wearing packers to see how they fare.

You have a right to have any invasive procedure, including a patdown, done in private. If you go to a private area, you have a right to bring a friend or fellow traveler with you.

Anyone experiencing a problem should let NCTE know at http://www.nclrights.org/site/PageServer?pagename=legal_tsawebform.  We are jointly collecting stories with the Transgender Law Center (TLC) and the National Center for Lesbian Rights (NCLR) to better inform TSA and our advocacy efforts. We also strongly encourage you to file a complaint about any negative experience with the Department of Homeland Security Office for Civil Rights and Civil Liberties; a standard complaint form is available here: http://www.dhs.gov/xabout/structure/gc_1273526572731.shtm#1. You may file a complaint yourself or NCTE will file one for you, and this can be done anonymously or confidentially.

TSOs have suggested to some trans people that they carry a letter from a doctor explaining apparent anomalies.  We at NCTE find the idea of carrying papers proving you are trans to be totally abhorrent and inconsistent with American values, but you should know that TSOs have suggested it. Another option is to carry a standardized TSA notification card, which allows passengers to discreetly communicate to TSOs about a physical or medical condition that could affect screening.  These options may help some people somewhat but are unlikely to allow you to avoid all the indignities that the current system seems to require.

The bottom line is that trans people have a right to fly and can do some things to make it somewhat safer most of the time, but the system is currently rigged against our dignity and safety, and anyone flying should be prepared for occasional unpleasantness or worse.  NCTE and our allies will continue to work to make this better.

There is not a one-size fits all answer, but now you hopefully have enough information to make rational informed decisions.

NCTE and allies urge TSA to treat trans travelers fairly

Just before Thanksgiving we provided a travel advisory for transgender people in light of invasive new TSA screening procedures. Unfortunately, in recent weeks we have been hearing disturbing reports from some trans people about how they have been treated at the airport. While most transgender people have traveled without incident over the last month,  these stories confirm that TSA’s current policies not only violate the privacy of all travelers but create serious risks that trans people will be detained, humiliated and harassed. Today NCTE joined with the National Center for Lesbian Rights and Transgender Law Center in sending a letter to TSA Administrator John Pistole urging immediate action to ensure transgender people do not encounter abuse at the airport.

NCTE and our allied organizations will continue to oppose intrusive and ineffective TSA practices and to work for appropriate policies and staff training to prevent harassment and abuse of transgender travelers. If you have encountered mistreatment by airport security staff, we need to hear your story. NCTE, NCLR and TLC have created a simple web form where you can share your airport experience. Please note: This is not a legal intake form – these stories will be used to advocate for changes in TSA policies and procedures.

In addition to completing our incident report form, we strongly encourage you to file a complaint directly with the Department of Homeland Security, Office for Civil Rights and Civil Liberties on their website.

Communication at the airport

While many Americans have general privacy concerns about new airport security procedures, there are many groups of travelers whose concerns about privacy or insensitive treatment by TSA personnel are especially acute, including religious minorities, transgender people, and people with a variety of medical conditions, disabilities, or assistive devices.

One specific concern shared by many of these groups involves communicating with TSA officers about sensitive personal or medical matters in the often noisy, crowded, and rushed environment of security checkpoints. To give travelers an additional option for addressing these issues, TSA has developed a standardized notification card that anyone can use to discreetly inform officers about any disability, medical condition or medical device that could affect security screening.

Front and back of the Notification Cards

Travelers simply write their personal information on the wallet-sized card and hand it to the security officer. These cards are purely optional, and they do not exempt anyone from security screening. However using the card should make it clear that officers should handle your condition or item in a sensitive and discreet manner. It also allows you to inform the officer without having to make verbal statements that could be overheard by other travelers.

No one is required to use this card, but you may choose to carry it and present it at any time. For example, you may wish to present it if an officer asks about an item on your person that may require additional screening. If this seems useful to you, simply print out the card and complete it, writing clearly a brief word or phrase to describe your condition or item in the blank. You may use any term you feel is appropriate to communicate with the officers.

NCTE has issued information and resources to help transgender people understand the new procedures and prepare for holiday travels. For more information, including how to file a complaint or take action, please follow this link.

An update on TSA

Over the last several months, NCTE has been working with the Transportation Security Administration (TSA) to address concerns about privacy and harassment of transgender travelers in airport security screening. This has included creating and updating informational resources for the community about TSA’s Secure Flight program and airport body scanners, and bringing TSA officials to speak with community members at our Policy Conference this spring. It has also included educating TSA about the trans community, and making recommendations for nondiscrimination policies and training.

Recently we had the opportunity, along with other privacy advocates, to see a demonstration of TSA’s body scanner machines. The demonstration did not allay our basic concerns about the current use of this technology, but it did clarify some things. We learned that TSA’s backscatter machines (one of the two types used) are set to use an automatic image filter to mute the resolution of the body scan – but that even the filtered image could be enough to out someone as trans. We learned that, in response to privacy concerns, the software capacity of the scanners to store and transfer images of travelers is now completely removed from the machines when they are installed in airports. And we learned that officers viewing the scans are trained only to report the presence of an anomalous object on a body scan to officers at the security checkpoint; figuring out what the object is is supposed to be left entirely to officers at the checkpoint. We are encouraged that TSA is looking seriously at automated threat detection systems that are less privacy-invasive, but also concerned that the agency’s massive investment in the current machines will make a swift transition to alternative methods of primary screening unlikely.

A measure in Congress to limit use of the scanners, though it passed the House last year, died in the Senate. Senators Klobuchar and Bennett recently introduced a bill that, instead of banning primary use of body scanners, would make it mandatory nationwide. The prospects for the Klobuchar-Bennett bill are uncertain. Meanwhile, TSA continues to use Recovery Act funds to place scanners in airports around the country, and to step up its PR offensive in support of the scanners.

In April, NCTE joined the Electronic Privacy Information Center (EPIC), the ACLU, Public Citizen and many other organizations in petitioning the Department of Homeland Security to suspend the deployment of body scanners for primary screening. DHS refused, and EPIC is now seeking a court order to limit use of the scanners, asserting violations of privacy and religious exercise, as well as failure to follow proper regulatory procedures in deploying the scanners. That lawsuit is now pending in court, and may be for some time.

NCTE continues to receive occasional reports of inappropriate or harassment treatment of transgender travelers at security checkpoints, and to communicate about these issues with TSA. To date, NCTE has not received any reports of problems for transgender people associated with TSA’s Secure Flight program, which collects travelers’ name, date of birth and gender at the time of booking to check against government watch lists.

NCTE will keep working to ensure that transgender Americans have no reason to be afraid of flying.

REAL ID implementation postponed from Dec. 31

Last Friday, December 18, Secretary Janet Napolitano of the Department of Homeland Security announced that states are being given additional time to comply with the REAL ID Act, which would have gone into effect in just a few days on December 31. That gives us that much more time to continue our advocacy on this issue which, if fully implemented, creates considerable burdens for transgender people obtaining appropriate ID. You can read more info on the DHS website.

HIV Travel Ban to be Lifted

President Obama Announces New Rules Today

For more than a year, advocates and government officials have been working to end the 22-year-old travel ban on people with HIV entering the United States. Today, President Obama finished the process, announcing the new rules as he signed the Ryan White HIV/AIDS Treatment Extension Act of 2009, noting, “If we want to be the global leader in combating HIV/AIDS, we need to act like it. And that’s why on Monday my administration will publish a final rule that eliminates the travel ban effective just after the New Year.”

In 1987, the US Public Health Service first issued the ban. That same year, Sen. Jesse Helms (R-N.C.) added HIV to a list of travel restrictions, approved unanimously by Congress. In 1993, Congress added the HIV ban to immigration laws, further strengthening the policy. Repeal efforts throughout the years failed until 2008 when Congress voted to end the ban and then-President Bush signed the measure.

“Transgender people, along with other vulnerable populations, are particularly at risk for HIV and AIDS. We applaud this long-overdue change in federal policy,” remarked Mara Keisling, the Executive Director for the National Center for Transgender Equality. “Our government policies should be grounded in science, not in myth. We know that travelers with HIV are not a threat to our country and there is no reason to bar them from entry.”

For more information about transgender people and HIV/AIDS, visit the Center for Excellence for Transgender HIV Prevention.

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Clarification on the Secure Flight program

We’ve been getting a lot of questions about the Transportation Security Authority’s Secure Flight program, under which airline passengers are now being asked to provide their date of birth and gender to airline personnel. We hope that our new Secure Flight FAQ addresses most of those questions, but we wanted to take a moment to make explicit one thing that we’ve been asked about repeatedly:

At this time, the Secure Flight Program does not include checking passenger data against state driver’s license databases, Social Security records, or anything other than the government-issued identification you bring to the airport. The purpose of this program is solely to identify individuals on federal watch lists and eliminate false positives with those lists, not to verify the identity or personal information of travelers.

Accordingly, it should not matter whether there is a discrepancy between different identity documents or government records, as long as the information on your reservation matches the ID you bring to the airport. We will, of course, be monitoring the program’s implementation for any such problems down the line. If you have encounter difficulties with airline or TSA staff, please let us know about them.

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