Attorney Michael Silverman is two years into an effort to build trans protections
Sitting in a conference room at the Latino Commission on AIDS, Michael D. Silverman, executive director and general counsel of the Transgender Legal Defense and Education Fund (TLDEF), explained why he founded the legal group two years ago.
“To my mind, and this isn’t a view that is shared throughout the community, issues of gender non-conformity are central to the LGBT movement,” said the 34-year-old gay man.
Two years ago he was at the New York Lawyers for the Public Interest working on health-care discrimination, though the practice was limited to cases involving discrimination based on race, ethnicity and disability. He regularly received calls from transgendered people who needed legal help.
“We had a lot,” he said. “We had a substantial number.”
The complaints ranged from a provider refusing to address a client with the proper pronoun, to refusing treatment, to “freak show-type complaints” where a provider would treat a client like a medical oddity and summon peers to see him or her.
Transgendered people have all the usual medical needs and they may have additional issues related to transitioning from one gender to another. Discrimination can lead them to abandon of the health-care system.
“Transgendered people have certain unique medical needs,” Silverman said. “When they check out, they put themselves in danger.”
While Silverman and his employer were sympathetic, their mandate prevented them from helping the transgendered callers and he was frustrated by his “inability to do anything about it.” After conversations with friends and colleagues, he decided to launch TLDEF.
“I started to talk to people, to activists, to friends, and we thought there really isn’t enough being done,” Silverman said. “There aren’t enough resources out there.”
The agency just racked up its first victory. Last year, TLDEF brought complaints against Advantage Security, a private security firm, charging it violated the city human rights law when its employees prevented two transgendered women from using public toilets that were consistent with their gender identity.
On March 31, TLDEF and the company reached a settlement that gave each woman $2,500, an apology, and a promise by the company to teach its employees about the 2002 law that bans discrimination based on gender identity or expression.
“What we wanted, first and foremost, was a policy change,” Silverman said. “We insisted they train all of their employees and supervisors on an ongoing basis.”
The case, which was brought before the city’s Commission on Human Rights is “a real indication that our city takes transgender civil rights seriously,” according to Silverman.
“That, in and of itself, was kind of a statement about what the human rights law covers,” he said. “Really what it says is this conduct is illegal under the New York City human rights law… While the settlement itself applies to Advantage Security, the principle applies much more broadly.”
After the 2002 law was enacted, the human rights commission was criticized for not issuing guidelines that would explain to employers how to comply with the law and some activists charged that transgendered people were harassed at the commission offices.
The guidelines, issued last year, were widely praised by activists and Silverman saluted the commission for its work on the Advantage Security case.
“We got great guidelines,” he said. “I would definitely bring cases there again.”
Silverman receives roughly 15 calls a week from the community on a range of complaints, and he is also building the organization. Currently, he is the only full-time TLDEF employee and his work is supported by roughly eight volunteers.
“We don’t take on every case, we refer,” he said. “The only cases that we will consider taking are those that implicate a transgender legal issue.”
Silverman said the group’s budget this year will approach six figures and he hopes to get to $200,000 in 2006. He also hopes to find permanent office space this year so he need not to continue to work from his Greenwich Village home.
TLDEF joins the small number of legal groups that are specifically serving the transgender community.
While organizations such as the American Civil Liberties Union, the Lambda Legal Defense and Education Fund, based in New York City, Boston’s Gay and Lesbian Advocates and Defenders, and San Francisco’s National Center for Lesbian Rights have represented transgendered people, there are just three legal groups that are dedicated solely to that population, including the Sylvia Rivera Law Project in New York City, the Transgender Law Center in San Francisco, and now TLDEF.
“There aren’t enough of us,” Silverman said. “There aren’t enough attorneys dedicated to transgender rights or to civil rights in general.”
The transgender community is “15 years behind where we are with the lesbian and gay community,” Silverman said.
With only about 25 percent of Americans living in a jurisdiction that bans discrimination based on gender identity or expression, there are few legal protections and even fewer legal resources for transgendered Americans. Many have little recourse when faced with discrimination.
“They don’t get justice,” Silverman said. “I wish there were 100 organizations that are devoted exclusively to this because the volume of work that needs to be done is astronomical.”
Silverman earned his law degree at the University of Michigan and spent six years after law school in private practice, though he volunteered at Lambda Legal working on the 1991 Hawaii marriage case and, later, an effort by James Dale to challenge his ban from the Boy Scouts of America because he was gay.
TLDEF is part of the Transgender Health Initiative of New York, a consortium of groups and individuals that began meeting in 2004, which hopes to create model policies for health-care providers.
The advantage of training employers and businesses is that it can avoid the need to go to court.
“I have the feeling that in the health-care context that is going take off,” Silverman said. “Nobody is interested in being a plaintiff. It takes an enormous amount of time and money.”
The courts, particularly the federal courts, have been battered by the American right-wing for some decisions, such as the Massachusetts gay marriage case and the 2003 case striking down the Texas sodomy statute. This assault from the right is particularly ironic given that the ranks of the federal judiciary are increasingly filled with conservative judges by the Bush administration.
“In civil rights law, in general, we’ve seen a tremendous rollback,” Silverman said. “They’re a mixed bag, but I would not go with the confidence that the courts were inclined to be receptive. I would assume the contrary.”
Part of the solution he said is also to educate the public about transgender issues.
“Legal victories are great, but they only do so much,” Silverman said. “You really need to spread the word. You need to empower people to stand up for themselves.”