Social Security and the Transgender Community
“The Social Security program… represents our commitment as a society to the belief that workers should not live in dread that a disability, death, or old age could leave them or their families destitute.” — Jimmy Carter
On Monday, I wrote a post about how gay and lesbian families are denied the same social security benefits that heterosexual Americans receive upon the death of a spouse.
One transgender reader left this comment, “It can get even more confusing if you’re trans. I was married as a guy, and now that I’m a gal, what’s my status? She and I are still together. So I have an ‘F’ on my driver’s license and my passport, but Social Security has me as “M”. (I’m trying to maintain a kind of dual citizenship here.) We’re paying taxes as married, filing jointly.”
“But I’m retired, and that means Medicare has me down as male; which isn’t a good match to the body I present to the doctor. And I can’t help but worry. One of these days, some humorless government records-droid is likely to start an inquisition, and who knows where that’ll end up? In court, at the worst case – and transfolk there are legally a Rorschach Blot for some wretched judge that feels like seeing things.”
I continue to be amazed at the issues facing the trans community… things that I never think about or take for granted as a lesbian in a world that increasingly accepts me as mainstream. But the comment got me thinking and doing some research.
Transgender Legal Issues for the Non-Attorney is a publication of the ACLU of Michigan LGBT Project and available on the Arcus Foundation web site. It explains that, “Social Security officials generally require proof that gender reassignment has been completed — or at least started — before they will change an individual’s gender marker. However, this requirement has not been consistently enforced and providing a letter from a physician stating that an individual is undergoing treatment may suffice.”
However, once Social Security records are consistent with a person’s gender there still could be issues with accessing benefits. A National Gay and Lesbian Taskforce Study reports, “Transgender elders may or may not be able to access Social Security spousal, survivor or disability benefits. Heterosexual transgender elders are often unable to marry because their state does not recognize their gender transition. Likewise, transgender elders in same- sex partnerships cannot marry unless their state does not recognize their transition. While transgender people who can currently marry will receive the same spousal retirement, survivor, and disability benefits that non-transgender married people receive, even these marriages may be threatened, depending upon judicial interpretations of new anti-marriage laws.”
They also cite this case: “California resident Robyn W. is a male-to-female transgender senior. She is a part of an LGBT aging group in San Francisco and tells this story about her Social Security benefits.”
“I am really very worried at the moment. I was able to change my gender classification at the local Social Security office after I transitioned, so that I receive all my benefits in my female gender. But yesterday a friend who is also transgendered told me she had been advised that the government might revoke all the gender changes that had been allowed in the last few years,” she says.
“There is something called the Real ID Act that just was passed into law which is suppose to help deal with security issues and the threat of terrorism but for us, for trans people, it may mean that we will be forced back into our birth gender in order to receive our Social Security benefits,” adds Robyn. “If that happens then my gender change will be revealed at all the places I now go to as a senior citizen and as a woman. I am terrified about it. It is not what I want to be concerned about at 78 years of age.”
Just like for gays and lesbians, this makes planning important and illustrates how marriage equality is so important for all loving partnerships. The HRC offers its take on the topic in this article that was developed by Shannon Minter, a senior staff attorney for the National Center for Lesbian Rights.
He writes, “Transgender people face unique legal issues with regard to marriage. Although marriage is not yet a legal option for gay or lesbian people in any state, it is already an option — and a reality — for many who are transgender. This article summarizes the legal issues surrounding marriage for transgender people and suggests some ways that transgender people can protect their marital relationships.”
“Some people are aware that transgender individuals are often able to enter into a heterosexual marriage after undergoing sex-reassignment. What may be less well-known, however, is that a transgender person may also be married to a person of the same sex. That situation arises, for example, when one of the spouses in a heterosexual marriage comes out as transsexual and transitions within the marriage. If the couple chooses to stay together, as many do, the result is a legal marriage in which both spouses are male or female.”
“Alternatively, in states that do not allow a transgender person to change his or her legal sex, some transgender people have been able to marry a person of the same sex. To all outward appearances and to the couple themselves, the marriage is a same-sex union. In the eyes of the law, however, it is a different-sex marriage because technically speaking; the law continues to view the transgender spouse as a legal member of his or her birth sex even after sex-reassignment. In short, marriage is a very real option for a variety of transgender people in a variety of circumstances.”
The article cites this case: “In practice, however, the legal validity of marriages involving a transgender spouse is not yet firmly established in the great majority of states. In 1999, for example, an appellate court in Texas invalidated a seven-year marriage between Christine Littleton, a transgender woman, and her deceased husband. The case arose when Ms. Littleton brought a wrongful death suit seeking damages for her husband’s death as a result of alleged medical malpractice.”
“Rather than ruling on the merits of Ms. Littleton’s suit, the court held that a person’s legal sex is genetically fixed at birth and that Ms. Littleton should be deemed to be legally male, despite her female anatomy and appearance, and despite the fact that she had lived as a woman for most of her adult life. As a result of that decision, Ms. Littleton was denied all of the rights afforded to a legal spouse — not only the right to bring a wrongful death suit, but the right to intestate inheritance (or inheritance without a will), to obtain her deceased husband’s Social Security and retirement benefits, and many others as well.”
For the sake of running on too long this morning, click over to read the entire article. It concludes by listing what legal documents one should have. At a minimum, Minter writes, “With those basic documents in place, transgender people who are married can at least ensure that the spouses can inherit each other’s estates and retain control over their own financial and medical decisions, even if the validity of the marriage is challenged. In many cases, the safety net created by extra legal planning will never have to be used. In others, the presence of that extra protection will shelter the transgender person and his or her spouse from devastating emotional trauma and financial loss.”
This is just one area where the trans community encounters financial and legal challenges. So much for the crazy administration of our social security benefits. Now… are there any bi-sexuals that want to speak up or have I adequately covered the topic with these LGT posts?