Forensic Assessment of Transgender Persons

Risk Assessment

Mitigation

Forensic psychiatric expertise is often utilized in identifying psychological or psychosocial factors that may mitigate sentencing in criminal matters. The definition of mitigation factors varies by jurisdiction but generally includes mental illnesses and a history of traumatic events, such as physical, sexual, or emotional abuse.³² Several studies indicate a higher prevalence of mental health disorders in transgender individuals compared with cisgender individuals. Transgender individuals were found to have a higher prevalence of clinical depression and anxiety, substance use disorders, and suicidal ideation compared with cisgender individuals.^33,–,36 A large body of research indicates that these disparities are not related to an inherent predisposition to psychopathology but rather the chronic stress attributable to discrimination and histories of traumatic events throughout life.⁶

Adverse childhood events (ACEs) have been associated with a negative impact on adult health and can serve as mitigating factors.³⁷ The prevalence rate of ACEs varies depending on the population surveyed. Transgender individuals experience a higher number of ACEs compared with cisgender individuals. More specifically, Feil et al. found that 29 percent of transgender individuals, compared with six percent of cisgender individuals, reported four or more ACEs.³⁸ Parental abuse and peer abuse were the most commonly reported ACEs. In a Canadian correctional sample of transgender individuals, 70 percent reported a history of any childhood abuse (64% reported a history of sexual and 52% reported a history of physical childhood abuse), 27 percent had been abused in adulthood, and 65 percent reported experiencing some trauma in their lives.³⁹

In conclusion, transgender identity itself is not a mitigating factor. Because transgender individuals have high rates of comorbid mental health disorders and ACEs, many will have mitigating factors that forensic psychiatrists may be asked to address. Although not sufficiently studied, it is likely that courts will have varying degrees of acceptance of the identification of transgender-associated comorbidities as mitigation. The authors’ experiences suggest that there is wide variation (and often disparate views) among courts.

Title VII Gender Discrimination Litigation

Title VII of the 1964 Civil Rights Act is a landmark federal law prohibiting employers from discriminating against employees based on sex, race, color, religion, or national origin.⁴⁰ Until recently, the definition of “sex” under Title VII had not been specified. In Bostock v. Clayton County, Board of Commissioners,⁴¹ the U.S. Supreme Court held that discrimination based on an individual’s sexual orientation or gender identity is a form of sex discrimination prohibited under Title VII. The Court made it clear that the ruling in Bostock is limited. More specifically, the Court asserted that the Bostock ruling does not address whether bathroom access, locker room use, or dress code policies count as “discrimination.” They also noted that the ruling does not address religious exemptions to anti-discrimination laws.⁴¹

Despite these stated limitations, in 2021, the Equal Employment Opportunity Commission (EEOC) published guidance on employment discrimination influenced by Bostock.⁴² The EEOC asserted that employers cannot require transgender employees to dress in accordance with their sex at birth or deny an employee access to a locker room or bathroom that corresponds with their gender identity. The EEOC also noted that the use of pronouns or names that are inconsistent with an individual’s stated gender identity may be considered harassment. Although many states welcomed this EEOC guidance, the attorneys general of 20 states sued, alleging that the EEOC did not comply with the Administrative Procedures Act because they did not publish notice of this proposed rule or consider public comments before finalizing their guidance. A Tennessee federal district court agreed with this allegation because, not only did the EEOC not comply with the Administrative Procedures Act, but it also provided guidance beyond the limits of Bostock by addressing whether policies regarding bathroom access, locker room use, and dress codes may count as discrimination. The district court prohibited the EEOC from enforcing this guidance in states that have laws prohibiting bathroom or locker room access based on gender other than sex assigned at birth.⁴³ Therefore, nationwide, the Bostock decision confirmed that gender identity is a protected condition under Title VII insofar as employees cannot be fired based on their gender identity. Whether the EEOC guidance extending Bostock to prohibit employers from requiring employees to use bathrooms, locker rooms, or dress codes based on sex at birth is accepted (and therefore, how broadly “sex discrimination” is defined) varies across jurisdictions.⁴³

Forensic psychiatrists retained in a sex discrimination case involving a transgender employee may be asked, like in any Title VII case, to assess for the presence of psychiatric symptoms or a mental disorder diagnosis and opine on the causation of any psychiatric injury. They may also be asked to describe the functional impairment that resulted from the psychological injury and to answer questions regarding recommended treatment and expected prognosis.⁴⁴ As described earlier, transgender individuals have higher rates of depression, anxiety, substance use, self-injurious behavior, and suicidality than cisgender individuals,^33,–,36 and these increased rates are the outcome of chronic stress attributable to discrimination.⁶ There is also evidence that transgender-supportive policies and workplace climates are associated with better mental health for transgender employees. More specifically, inclusive workplaces have been linked with less depression, anxiety, distractibility, exhaustion, and problems with self-esteem.⁴⁵ That being said, forensic psychiatrists retained in sex discrimination cases should be aware that transgender individuals are not only at elevated risk of facing discrimination in the workplace but also in many other aspects of life, including in health care settings, public accommodations, the criminal justice system, education, and in interpersonal relationships.⁶ Therefore, it is important to determine the timeline and cause of any reported psychological symptoms.⁴⁴

Americans with Disabilities Act Evaluations

The Americans with Disabilities Act (ADA) prohibits discrimination based on disability by employers with more than 15 employees (Title I); all services, programs, and activities of state and local government (Title II); businesses and nonprofits serving the public (Title III); and in telecommunications (Title IV). The ADA also requires employers to provide a reasonable accommodation to enable a qualified individual with a disability to perform essential job functions, except if the accommodation would cause undue hardship or if the employee is a “direct threat.”^46,47

Under the ADA, a disabled individual is defined as “a person who has a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of having such an impairment, or a person who is perceived by others as having such an impairment” (Ref. 46, § 12102(1); Ref. 47, § 12102(1)). When the ADA was passed in 1990, gender identity disorder (GID), transvestitism, and trans-sexualism were explicitly excluded from qualifying mental disorders under the ADA. In 2022, in Williams v. Kinkaid, the fourth circuit held that the diagnosis of gender dysphoria, unlike GID, was not excluded as a disabling condition under the ADA.⁴⁸ This ruling was appealed, but the U.S. Supreme Court denied certiorari in 2023, allowing this precedent to stand.⁴⁹ Since then, the Tenth Circuit has made a similar ruling.⁵⁰ Gender dysphoria is not currently accepted as a disabling condition under the ADA in all jurisdictions.

In jurisdictions where gender dysphoria is protected under the ADA, transgender plaintiffs may utilize ADA litigation to combat discrimination in a wide range of contexts.⁵¹ For example, they may allege employment discrimination if they are terminated, if their employer fails to accommodate their medical and psychiatric needs (e.g., time off for appointments), or if their employer refuses to change human resources documents reflecting the transgender individual’s new name and gender designation.^52,–,54 In correctional settings, prisoners may bring ADA claims if they are denied housing in facilities congruent with their gender.^55,56 Transgender plaintiffs may also utilize the ADA to challenge state laws that require proof of gender-affirming surgery to change the gender designation on their birth certificates⁵⁷ or to sue insurance companies that refuse to cover the costs of gender-affirming medical or surgical treatments.⁵⁸

If retained on an ADA case in a jurisdiction where gender dysphoria is an accepted disability, the forensic psychiatrist should remember that the subject of the evaluation does not need to meet the criteria for a diagnosis of gender dysphoria at the time of the evaluation. Evaluees could also be considered to have disabling gender dysphoria if they have a history of gender dysphoria (e.g., before undergoing medical or surgical transition) or even simply if others may think that they have gender dysphoria.^46,47 Because the ADA defines discrimination not only as disparate treatment based on the disabling condition but also as failure to provide “reasonable accommodations” and to “reasonably modify” discriminatory policies,^46,47 forensic psychiatrists may also be asked to opine on what accommodations may help an individual with gender dysphoria. Examples of accommodations to consider include a modified work schedule to allow time for the individual to attend appointments (e.g., psychotherapy, surgical, medical), modification of dress code and bathroom policies at work or school, or modification of a correctional facility’s policy that houses inmates based solely on biological sex.⁵¹

Personal Injury Litigation

Intentional infliction of emotional distress (IIED) and negligent infliction of emotional distress (NIED) are types of personal injury claims that seek compensation for the emotional harm caused by the defendant’s actions or negligence. Although most jurisdictions recognize claims related to psychological injuries alone, courts and legislatures are generally reluctant to compensate plaintiffs in these cases, because they are difficult to prove while ruling out feigning.⁵⁹

IIED is a legal claim that can be pursued when an individual intentionally or recklessly engages in “extreme and outrageous” conduct that causes emotional distress to another person. To be found liable for IIED, the defendant’s actions and the plaintiff’s resulting emotional distress both have to be severe. IIED claims are usually pursued alongside a primary claim (e.g., defamation or discrimination), because IIED claims are difficult to prove.⁵⁹ Transgender plaintiffs may bring an IIED claim with an ADA or Title VII employment discrimination claim as described in the sections above. Courts have generally refused to consider discrimination as “extreme and outrageous” conduct, however, even in severe cases (e.g., even when courts agree that the discrimination made the workplace so intolerable that a reasonable person would have left the job).⁶⁰ That being said, there have been successful IIED cases for transgender plaintiffs. For example, in Grimes v. County of Cook,⁶¹ a transgender man who had not revealed his transgender status to his colleagues and had lived as “unambiguously male” successfully brought an IIED claim after his supervisor at the Cook County Jail disclosed his transgender status to his colleagues. Mr. Grimes described how his workplace had a “culture of transphobia among employees” (Ref. 61, p 19) and how correctional officers and jail medical staff (i.e., his colleagues) had been physically and verbally aggressive toward transgender inmates.⁶¹

NIED is a less common legal claim that may be sought when a defendant’s negligent actions or failure to act lead to severe emotional harm toward the plaintiff. To find a defendant liable in these cases, the plaintiff must demonstrate that the defendant owed a legal duty of care to the plaintiff, that the defendant’s negligent actions breached this duty, and that this breach caused emotional harm to the plaintiff. There are significant differences across jurisdictions regarding the standard used to determine whether the defendant is liable and how severe the plaintiff’s injuries must be to collect damages. Forensic psychiatrists consulted in these cases should also be aware that an objective standard is generally used rather than an “eggshell skull” standard. In other words, in most jurisdictions, damages related to the plaintiff’s preexisting vulnerability to emotional distress will not be recoverable.⁵⁹

There are a variety of types of NIED cases involving transgender plaintiffs that a forensic psychiatrist may encounter. For example, in Dana v. Tewalt,⁶² a transgender inmate alleged that she suffered harm because of her correctional facility’s “actions—and inactions.” More specifically, she alleged that she was harmed by not being provided appropriate medical treatment (i.e., feminizing hormones and evaluation for gender-affirming surgery) and not being able to live as a woman while incarcerated.⁶² In Ward v. City of Henderson, Nevada,⁶³ a transgender police officer alleged that she was discriminated against at work and that the hiring, training, and supervision by the City of Henderson was negligent.⁶³ Neither of the plaintiffs in these two cases prevailed.^62,63

Transgender Parenting Assessments

In the most recent U.S. Transgender Survey, 17 percent of respondents reported being a parent.⁶⁴ At the same time, transgender persons face many social and legal barriers to parenthood around the world. For example, until 2023, transgender individuals in countries such as Finland and Japan had to undergo sterilization before legally changing their gender,^65,66 and this remains the practice in many countries, including 20 European countries.⁶⁷

Transgender and gender-diverse (TGD) persons form families and have children in diverse ways. Some may become parents before their transition, while living in an ostensibly heterosexual partnership or within a queer relationship. Either heterosexual or queer ex-spouses can weaponize gender or sexual identity in an acrimonious custody battle, which can be especially salient when only one ex-spouse is a biological parent.⁶⁸

As in all fitness-to-parent and other custody-related forensic assessments, observing the parent-child relationship and considering the parent’s weaknesses and strengths are essential. The standard is the best interest of the child, although this has been criticized as overly broad, leaving too much room for judicial discretion and denying the parent’s rights.⁶⁹

Katyal and Turner reviewed 30 custody and visitation cases of transgender and gender-diverse parents in the United States since the 1970s and found proof of ongoing implicit bias against transgender parents in family law cases in the United States.⁷⁰ Expert testimony was often ignored in cases with a TGD parent, with decisions frequently reflecting stereotypes of the TGD population. Evidence that was unrelated to parental fitness was commonly introduced, and the importance of the parent-child bond was minimized for TGD parents. Nearly two-thirds of TGD parents lost their cases, and a similar number lost on appeal, with evidence of implicit and explicit bias related to gender identity. For example, when family courts considered whether TGD parents disclosed details of their transition to their child, courts found both the disclosure and the lack of disclosure unfavorable. Another significant bias was the concern of contagion or about the transmissibility of gender diversity and the resulting destabilization of the child’s gender identity.⁷⁰ This builds on a long-standing and persistent fear of the contagion of homosexuality.⁷¹ Forensic psychiatrists should also be familiar with the existing literature on TGD parenting, which is small but developing. One recent literature review on TGD parents concluded that there was currently “no evidence that having a transgender parent affects a child’s gender identity or sexual orientation development, nor has an impact on other developmental milestones” (Ref. 72, p 10).

Misrepresentation and Malingering

Although the prevalence of malingering of gender dysphoria or misrepresenting a transgender identity is unknown, like with many mental health conditions, malingering should be considered in any forensic setting.⁷³ Motivations to malinger gender dysphoria or misrepresent a transgender identity in correctional or forensic hospital settings may include access to specialized or alternative housing (access to potential victims) and differential treatment. Motivations to malinger gender dysphoria or misrepresent a transgender identity in criminal evaluations may include uncertainty about risk assessments or dangerousness because of the absence of studies in this population. For example, an individual who reports a transgender identity may raise the concern that there are no validated tools to measure sex offender or violence risk in this specialized population. In jurisdictions with civil commitment laws for dangerous or sexually violent predators, the court’s ruling is based in part on the offender’s risk for committing a future sexual offense. Transgender individuals facing sexually violent predator (SVP) commitment may challenge the use of actuarial risk assessment tools, such as the Static-99r, which, as described above, are normed on the cisgender population.²⁷ Additionally, the absence of scientifically validated risk assessment tools may be used to argue for reduced punishment in sentencing hearings. In these matters, whether the burden of proof for sexual dangerousness can be met without evidence-based tools is unclear.

Malingering of gender dysphoria or misrepresentation of transgender identity should also be considered in other civil forensic settings. Individuals may malinger or misrepresent their gender identity in civil claims to establish discrimination and or emotional damages from civil wrongdoing.

The evaluation of a malingered gender dysphoria or misrepresented transgender identity should take the course of a general assessment for malingering.⁷³ More specifically, the individual’s history and collateral sources of information should be reviewed to understand whether the individual’s transgender identity is valid or constructed for secondary gain. Similarly, in individuals with reported gender dysphoria, the report of dysphoria should be commensurate with objective evidence of functioning, including maintaining employment and relationships. The veracity of the sudden introduction of transgender identity or gender dysphoria, especially when reasons for secondary gain are present, should be considered alongside the possibility of an individual coming out as transgender at that time, even if significantly later in life.⁷⁴

Bias in Transgender Evaluations

There is growing recognition of the impact of bias on social systems that rely on human decision-making, such as law and medicine. Within medicine, many different types of cognitive biases have been identified.⁷⁵ Health care professionals demonstrate implicit bias to the same degree as the general population, involving unconscious negative attributions based on irrelevant group characteristics, such as race or gender.⁷⁶

Within forensic psychiatry, the most discussed bias is allegiance bias (see Table 1).^77,–,80 One example of an extreme manifestation of allegiance bias is the case of a religious group recruiting expert witnesses based on their willingness to defend a (covertly) religious view, seen recently in the legal battles over gender-affirming care.^78,79 Evidence also exists among forensic experts for the operation of confirmation bias, hindsight bias, and the bias blind spot.⁸⁰

Considering bias is especially important when working with historically marginalized groups, as recent forensic writing has highlighted racial discrimination.^81,82 Such biases are often based on stereotypes and misconceptions as to the nature of queer gender and sexuality. It is therefore essential to be aware of the prevalent stereotypes about transgender and gender-diverse (TGD) individuals. These include that TGD individuals are mentally ill, confused, or secretive⁸³; that they are dishonest and duplicitous about their true gender identity⁸⁴; and that their sexuality is inherently deviant.⁸⁵

Without critical reflection, such biases may unconsciously be reproduced in the forensic psychiatrist’s narrative of a transgender evaluee. TGD persons are often asked more intrusive questions about their sexuality, even with respect to unrelated domains, such as parental capacity. Forensic psychiatrists should ask themselves whether they would be asking a particular question if the subject were a cisgender parent.⁸⁶ Transgender persons are also more likely to have faced discrimination from health care and law enforcement professionals.^87,88 This may lead to a reticence to engage in forensic evaluation that should be understood in its proper context. Critical reflection is also needed to avoid overidentification with a particular group or risk becoming an advocate for an individual evaluee, compromising objectivity.

Goldyne conceptualizes bias in forensic psychiatry as stemming from emotional versus nonemotional sources, highlighting the importance of affect and forensic countertransference.⁸⁹ Sources of emotional bias include past experiences, interpersonal provocation, political agenda, and situational and interpersonal provocation. Goldyne advocates for an introspective process of self-questioning to identify and mitigate bias in forensic work (see Table 2).⁸⁹

Finally, biases can compound. For example, because TGD individuals experience discrimination in employment and education, they may have less economic resources. Racialized TGD persons face increased discrimination based on both their race and gender identity.⁸⁶ These realities highlight the importance of an intersectional lens when evaluating the potential for bias and resulting discrimination.

Limitations in the Scientific Research

Transgender health care has grown in the past decade, with an increase in the number of individuals seeking gender-affirming medical care and related scientific research.⁹⁰ Concurrently, the World Professional Association for Transgender Health (WPATH) has published updated versions of the standard of health care (SOC) for transgender individuals, most recently as version SOC-8 in 2022.⁹⁰ As the field of transgender care evolves, so does the role of the forensic psychiatrist. Although the specific referral question varies, forensic psychiatrists must keep some fundamental principles in mind.

The first principle is to identify the limitations of the scientific research. For example, when asked to opine about the diagnosis of gender dysphoria, it is important to point out that there is no definitive tool or psychological test to confirm the diagnosis. Diagnostic criteria may be met through psychiatric interviews, clinical history, and information from collateral contacts familiar with the evaluee. Psychological testing may help rule out comorbid conditions or identify clinically significant concerns, but it is never diagnostic of gender dysphoria. Reliance on self-report alone is insufficient to make a diagnosis of any mental disorder, including gender dysphoria, in a medicolegal context.⁹¹

The forensic evaluator first has a duty to the court to present the current scientific evidence for or against interventions and should readily admit when that evidence is limited. Recent controversies over endorsing or discrediting the work of the WPATH guidelines are an excellent example.⁹² One should also note that, although the WPATH guidelines are informed by a limited number of high-quality studies, such as randomized controlled trials (RCTs), this is not unique to transgender health care; psychiatric interventions in general often involve complexities that make RCTs difficult or impractical to conduct.⁹³ Additionally, sole reliance on WPATH guidelines may be problematic, especially in institutional settings. The most recent WPATH guidelines referencing “people living in institutional environments” (Ref. 90, p S104) may not take into account the complex operational, safety, and security features unique to correctional environments. For example, although the WPATH guidelines recommend transgender individuals should be referred to by their chosen names and be provided access to the private use of bathroom and shower facilities upon their request, these recommendations can be difficult to implement in practice. Incarcerated individuals are typically identified by their legal names in institutional records, which serve administrative, medical, and legal functions. Using a chosen name, although affirming, may introduce confusion or pose risks related to misidentification and security. Similarly, offering private bathroom and shower access upon request, although a goal, can be difficult in facilities with limited infrastructure and staffing. That said, these challenges do not mean that such guidelines are always inherently unworkable or should be dismissed outright. Rather, they underscore the need for thoughtful adaptation of general recommendations to the realities of institutional contexts. Further research is needed to examine how such recommendations can be safely and effectively implemented within correctional environments, and build an evidence base that supports both gender-affirming care and institutional safety.

The second principle is to be mindful of one’s background and experience. The increase in litigated transgender care cases has resulted in what some have coined “the cottage industry of experts.”⁷⁹ Carabello⁷⁸ and others⁷⁹ criticize named anti-transgender medical experts “as undermining equitable access to justice by introducing pseudoscience into court proceedings” (Ref. 78, p 688). Although the Daubert⁹⁴ standard should guard against the admissibility of unqualified expert witnesses, the standard is not rigid. Experts whose views about transgender care are not commensurate with the scientific literature or associated with anti-trans organizations should be challenged. Equally, experts whose views align solely with specific activist agendas rather than being grounded in science should not be in the courtroom. Transgender individuals are a vulnerable group of individuals, and the cultural approach of developing a specific personal narrative is recommended.^81,95 While doing this, forensic psychiatrists must not abandon their essential role: answering a medicolegal question in an evidence-based manner.