Refusing to Hide: Trans and Gender Nonconforming People Demand Rights

September 9, 2015

When Victoria Villalba, at age 18, crossed the U.S. border into California last year, she expected to find a safe place to live away from the repeated assaults and discrimination she had faced as a transgender woman in Mexico, where she was born but had spent less than one-third of her life.

Instead, she was arrested, locked in a cell in a male-only unit of a San Diego detention center for three and a half months, and subjected to verbal abuse by security officers contracted by the U.S. Immigration and Customs Enforcement (ICE) agency.

“Going through the emotional trauma that I faced in the country of my birth, I thought coming back to the U.S., I’m going to be able to be at home,” she said, recalling her 13 years in Phoenix, Arizona, which ended soon after her father’s 2010 deportation.

“I know I will never be the same person…being treated like an animal at the hands of ICE. They deprive you of your liberty when you’re seeking help,” says Villalba, who now works for the Queer Undocumented Immigrant Project of United We Dream, and is seeking asylum.

Mexico, which shares a nearly 2,000-mile-long border with its northern neighbor, ranks as the country with the world’s second highest absolute number of reported trans-phobic murders: 194 documented1 between 2008 and 2014.

Recorded murders of trans individuals have reached 1,731 worldwide since Transgender Europe began collecting statistics in 2008, with 226 such killings taking place between October 1, 2013, and September 30, 2014.

The 20 cases of trans-phobic murder in the United States documented in 2014 are among the highest annual figures recorded by the National Coalition of Anti-Violence Programs. Some 80 percent were of people of color. More than half were of trans women.

While several countries2 have taken steps to reduce the hatred and often violent discrimination toward their trans populations, an overwhelming majority of the world stigmatizes or punishes people who identify as trans or are perceived as gender nonconforming, through either informal or formal measures.

The World Health Organization produced draft guidelines in 2014 that would amend its long-standing classification of “transsexualism” as a “gender-identity disorder”—a diagnosis of mental illness that 35 European countries require, along with sterilization (in 21 countries) and divorce (in 20 countries)—for individuals legally to change their gender.3

Other punishments applied around the world during 2014 and 2015 included the prosecution of 16 trans women in Malaysia, who were sentenced to seven days in prison for “cross-dressing,” and the sentencing of a trans woman in Egypt to a six-year prison term on the grounds of “debauchery.”

Yet in Malaysia, the Shariah-based law forbidding “any male person who in any public place wears a woman’s attire or poses as a woman” was deemed unconstitutional in a landmark 2014 appeals court ruling.

“I couldn’t handle going back to school anymore”

In Tonga, a deeply Christian archipelago nation in the South Pacific, activist Joey Joleen Mataele quit school at 13 because of the abuses she experienced as a Leiti—a word describing anyone with a nonconforming gender presentation, regardless of sexual orientation.

“I couldn’t handle going back to school anymore, because I couldn’t stop being a Leiti,” said Mataele, who went on to help found the Tonga Leiti Association—now with branches in Australia, New Zealand, and the United States.

©Kike Arnal

©Kike Arnal

Mataele also co-founded the Pacific Sexual Diversity Network, which scored a victory in 2010 with a law in Tonga making it easier to change a name to reflect the bearer’s gender identity. The group was instrumental in the passage of a 2014 anti-domestic violence law and a 2012 gender-equality law.

Although same-sex relations are still illegal, Tonga’s government agreed in 2013 to “consider the possibility of strengthening measures to eliminate all discriminatory treatment related to sexual orientation or gender identity”—a response to recommendations it received through the U.N. Universal Periodic Review (UPR) of its human rights record.

The United States, too, through the UPR process, accepted two 2011 recommendations to address discrimination and combat stereotypes based on gender identity or sexual orientation, and has moved haltingly forward.

While only 19 U.S. states provide explicit legal protection to employees or tenants discriminated against on the basis of their gender identity, plaintiffs in the remaining 31 have had some success pursuing cases through the federal Equal Employment Opportunity Commission and Department of Housing and Urban Development —which are charged with enforcing laws against sex discrimination—as well as in federal court.

“One of the reasons we continue to push for explicit protections is the prevention aspect,” says Karen Loewy of Lambda Legal. “When the law clearly and plainly says that discrimination against trans people is prohibited, it puts would-be discriminators on notice.”

After more than a decade of advocacy by the Sylvia Rivera Law Project and other partners, including Lambda Legal and the Audre Lorde Project, New York State in 2014 removed the requirement of surgery to change the gender marker on birth certificates, and announced that Medicaid (the U.S. low-income health care program) will cover transgender health care, including hormones and surgeries.

In June 2015, President Barack Obama enacted stronger protections affecting trans employees in federal jobs by making it illegal to fire anyone on the basis of gender identity. His defense secretary Ashton Carter announced in July that the prohibition of transgender people serving openly in the military is outdated and hurtful, and launched a six-month review that he said would end with their full inclusion in the service.4

Also in June 2015, the Immigration and Customs Enforcement agency published a new guideline barring gender-identity-based discrimination at U.S. detention centers, calling, among other protections, for housing accommodations that ensure detainees’ safety and the availability of medical staff who are experienced in transgender health care.

The announcement prompted strong reactions from organizations, including Immigration Equality, which welcomed the move but responded that the continued incarceration of trans women in all-male facilities makes sexual assault an “unacceptable and reckless inevitability.”

“The most humane, and the most cost-effective way to keep transgender immigrants safe is to stop detaining them in the first place,” said the group’s executive director Caroline Dessert, reflecting a point also addressed during the panel at an Arcus Forum held in November 2014.

For Victoria Villalba, who departed the United States two years before the Deferred Action for Childhood Arrivals (DACA) initiative was signed into law in 2012, the temporary in-country stay and work authorization the initiative offered is not an available option.

She continues her work to assist other trans women and immigrants confined in the U.S. detention system.

“We just want to be included as the humans that we are in every executive action and every decision that this country makes, because that’s what the country is about, it’s from the people for the people.”

1According to latest data collected by the Transmurder Monitoring Project of Transgender Europe
2Ireland, Denmark, Malta, Argentina, and Columbia had passed laws, as of July 2015, allowing individuals to change their legal gender without medical or any other intervention. India in 2014 joined Nepal in recognizing a “third gender.”
3Trans Rights Europe Map,2014,(accessed 7/18/2015)
4Williams Institute research estimates that 15,000 trans individuals are currently serving in the military, without identifying themselves, almost double the rates of the general public. Adjusted estimates show that 32% of those assigned male at birth and 5.5% of those assigned female at birth have served, compared to 19.7% and 1.7% among the cisgender population, respectively. Williams Institute. (2014.) Transgender Military Service in the United States.