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Trans Voters Will Be Disenfranchised in 2020 Unless We Take Action

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Today and tomorrow, voters will tune into the first primary debates of the 2020 presidential election. Unless lawmakers take meaningful action, transgender people in the United States will continue to face significant, well-documented barriers in exercising their right to vote. This issue deserves attention now from the candidates.

The 2020 contest already stands out for its attention to LGBT rights and voting rights. Pete Buttigieg is the first openly gay candidate to qualify for a presidential primary debate. The introduction of state and federal voting rights legislation has also drawn attention to electoral access in the 2020 race.

Few candidates, however, have spoken to the need to tackle the ways that voting restrictions affect transgender people’s right to vote. While it is often overlooked, the interplay of voter suppression, bureaucracy, discrimination, and high rates of incarceration disenfranchises transgender people. Candidates should identify in their policy platforms how they would concretely reform laws and policies that make it harder for transgender people to vote.

The most glaring form of voter suppression in recent years has been photo ID laws, which require voters to present certain forms of ID with a photo that matches their name. Photo ID laws have been promulgated by state governments across the country. The laws disenfranchise marginalized communities, including transgender voters who may have difficulty obtaining forms of ID that accurately reflect their name, gender, and appearance.

A 2018 study found that photo ID laws had the potential to inhibit the right to vote for 78,300 transgender people in eight states alone. The problem isn’t limited to states with photo ID laws. Transgender voters have also reported being turned away from the polls in places like Vermont, where voting laws are relatively unrestrictive.

The bureaucracy, fees, and onerous requirements to change documentation make rigid ID requirements a significant detriment to democratic participation. According to the Movement Advancement Project, 14 states have unclear or burdensome requirements such as a court order, proof of surgery, or an amended birth certificate to change a person’s driver’s license to accurately reflect their gender identity.

Even when voters aren’t directly turned away from the polls, these hurdles can discourage people from attempting to exercise their democratic right. Shawn Reilly, an organizer of transgender community programming in Nashville, told Human Rights Watch that “people just give up” on voting when faced with discriminatory laws and bureaucracy. 

Restrictions that aren’t on their face tied to gender identity can also disproportionately affect transgender voters, especially those of color and from low-income backgrounds.

Ohio and six other states have removed from the electoral roll “inactive” voters who fail to return a postal mail residency check. These types of purges can functionally exclude many transgender people, who face high rates of housing insecurity. According to the 2015 U.S. Transgender Survey, conducted by the National Center for Transgender Equality, 30 percent of survey respondents reported experiencing homelessness during their lifetimes.

The practice of disenfranchising felons also disproportionately affects transgender voters. Transgender people are incarcerated at three times the rate of cisgender people. Rasheeda Johnson, who coordinates a support group for transgender women with HIV in Birmingham, Ala., told Human Rights Watch that many participants in the program have a felony record as a result of bias in the criminal justice system. Overcriminalization and selective enforcement contribute to felony convictions that strike transgender voters from the rolls for the duration of their incarceration and sometimes for the rest of their lives.    

For example, criminal laws make HIV transmission, non-disclosure, or exposure a potential felony offense in 33 states and territories. These laws are counterproductive in combating HIV transmission and used disproportionately to convict Black and Latinx people. Although less than half a percent of the U.S. population is estimated to have HIV, approximately 3 percent of transgender men and 14 percent of transgender women are HIV-positive; an estimated 44 percent of Black transgender women and 26 percent of Latinx transgender women are living with HIV. This disparity makes transgender people particularly susceptible to HIV criminalization.

Laws prohibiting sex work are also frequently used to incarcerate and disenfranchise transgender people. High rates of poverty and unemployment pressure some transgender people to engage in sex work, and transgender women of color in particular are often singled out by police. Sex work is criminalized in every U.S. state, and in at least seven states it can be punished as a felony. Convictions under now-invalidated sodomy laws also still stand in some states, leaving people with criminal records that can restrict their rights.

As the 2020 candidates pitch policy innovations, they should promote inclusion and accessibility in the right to vote. Facilitating legal gender recognition, lowering barriers to voting, ending felon disenfranchisement, and decriminalizing HIV transmission and sex work are good places to start. Measures such as expanding early, absentee, and mail-in voting are also essential. By making these issues part of the discussion now, candidates can encourage federal action and inspire state and local reforms to enfranchise transgender voters who are often left without a voice.

Jordan Cozby is an intern and Ryan Thoreson is a researcher in the LGBT Rights Program, both at Human Rights Watch.

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