Category Archives: Traveling While Trans

OIRA Meeting with TSA on Scanners

Today I met with the Office of Information and Regulatory Affairs, a small but important office within the Executive Office of the President, to discuss an upcoming TSA regulation concerning the policies used for the advanced body-imaging scanners.  The problem with the scanners is that they are cissexist, starting from their pink and blue button user interface through to their assumptions that everyone’s anatomy is cis.

I emphasized that TSA’s agents are terrible, and ran through some examples of TSA mistreatment I’ve collected informally over the past few weeks.  I recited back to them their training statistics, and how poor they actually are (the last numbers I saw, fewer than 10% of TSA agents have received training on gender identity).  They cannot train their way out of the problems their scanners create: the best solution is to reprogram the scanners so that they no longer create more problems for transgender travelers.

I closed the meeting with a warning:  if this issue is not adequately addressed in the final rule, I will be filing a Petition for Reconsideration on this issue.  That seemed to get their attention.

TSA AIT Scanners – Meeting Request to OIRA

This afternoon I submitted a meeting request to the Office of Information and Regulatory Affairs in the Executive Office of the President to discuss TSA’s unconstitutional program of singling out transgender travelers for extra scrutiny and abuse based on cissexist assumptions about anatomy. PDF available.

The Honorable Howard Shelanski
Administrator
Office of Information and Regulatory Affairs
Office of Management and Budget
Washington, D.C. 20503

Re:       RIN 1652-AA67 – Passenger Screening Using Advanced Imaging Technology

Dear Administrator Shelanski:

As a transgender woman who occasionally flies for work and personal affairs, I have grave concerns with the draft final rule submitted to the Office of Information and Regulatory Affairs from the Transportation Security Administration on November 19, 2015. Put succinctly, the Advanced Imaging Technology (AIT) scanners unconstitutionally place undue scrutiny on transgender travelers because of cissexist assumptions about anatomy. Rather than being an occasional flaw in the system, the harassment of transgender travelers by TSA is designed into the system from the bottom up.

As you may be aware, the scanner is designed with a simple interface. An example, provided by the Department of Homeland Security,[1] appears below.TSA AIT scanner interface

The scanner requires that a TSA employee press a pink or blue button, corresponding to the perceived gender expression of the traveler to be scanned. The traveler has no opportunity to ensure that they have been “read” correctly in a manner consistent with their gender identity and anatomy; they must hope that the TSA agent correctly discerns these things. This process is arbitrary, mistake-prone, and places an unconstitutional burden on transgender travelers to dress in a manner most likely to elicit a correct button press by government agents.

Once the button has been pressed, the AIT scanner is calibrated for certain anatomical assumptions. These assumptions are cissexist and fail to account for the existence of transgender bodies. If the agent presses the blue button, the AIT scanner assumes that the traveler will have a penis and no breasts. If the agent presses the pink button, the AIT scanner assumes the traveler will not have a penis but will have breasts. These assumptions are based in the cissexist logic that all men have penises and no women do, and similarly that no men have breasts and all women do. This logic is factually incorrect and places an unconstitutional burden on transgender travelers to explain their anatomy to uncaring government agents.

To solve this problem, TSA has proposed changing the word used for when the scanner detects something it was not programmed for from “anomaly” to “alarm.”

Meanwhile, TSA has also implemented a new policy for AIT scanner use. Under prior policy, any person had the ability to opt-out of the AIT scanner and be scanned physically. Many transgender travelers did so, rightly anticipating problems if they were to use the AIT scanner; while Ms. Shadi Petosky’s experience may be the most well-publicized,[2] she is far from alone in experiencing hellacious treatment by government agents for simply attempting to travel while transgender. Under the new policy announced on December 18, 2015, “TSA may direct mandatory AIT screening for some passengers.”[3] Now, not only is AIT screening the default, but it is mandatory for “some” passengers, with no indication of how this new authority will be used. Given TSA’s history of harassing transgender travelers, we are justified in being concerned.

If TSA wishes to maintain its AIT screening program, it must update the screening software and hardware so that is no longer based on government agents guessing the gender of travelers and so that it no longer assumes that all bodies are cisgender. Furthermore, while the AIT scanners continue to impose these unconstitutional burdens on transgender travelers, all travelers must have an unquestioned right to opt-out of the AIT scanner in favor of a physical screening.

I look forward to discussing this issue with your staff.

Sincerely,

Emily T. Prince, Esq.

 

[1] Department of Homeland Security, “Privacy Impact Assessment Update for TSA Advanced Imaging Technology,” DHS/TSA/PIA-032(d), Dec. 18, 2015, http://www.dhs.gov/sites/default/files/publications/privacy-tsa-pia-32-d-ait.pdf.

[2] See http://www.advocate.com/transgender/2015/9/22/one-trans-womans-tsa-horror-story, http://www.salon.com/2015/09/22/shadi_petosky_was_detained_by_tsa_for_traveling_while_trans_the_police_at_the_tsa_gate_were_awful_one_was_laughing_at_me/, http://www.nbcnews.com/news/us-news/transgender-woman-says-she-was-delayed-tsa-anatomical-anomaly-n431326, http://www.newsweek.com/shadi-petosky-transgender-woman-alleges-unfair-screening-tsa-orlando-airport-375220, http://www.nytimes.com/2015/09/23/us/shadi-petosky-tsa-transgender.html?_r=0.

[3] “Privacy Impact Assessment Update for TSA Advanced Imaging Technology”, supra note 1.

TSA Creates New Mandatory Screening Process “For Some Passengers”

On December 18, 2015, TSA issued a Privacy Impact Assessment relating to a change in TSA policy regarding the Advanced Imaging Technology (AIT) scanners, which have TSA agents identify passengers as male or female (“blue” or “pink”) and then flag any “anomalies” on their bodies, including body parts.  These scanners are programmed to discriminate against transgender passengers, as they do not account for transgender anatomy.  Some passengers have chosen to bypass the AIT scanner in favor of a physical screening, but under the new policy, “TSA may direct mandatory AIT screening for some passengers.”

Concerned about the impact of this policy on transgender passengers, I wrote TSA.

 

Dear Ms. Vaughan,

On December 18, 2015, your office issued the above-referenced Privacy Impact Assessment (PIA) Update for TSA Advanced Imaging Technology (AIT)  (DHS/TSA/PIA-032(d)).  That document revealed “a change to the operating protocol regarding the ability of individuals to opt-out of AIT screening in favor of physical screening.”  Pursuant to this change, “TSA may direct mandatory AIT screening for some passengers.”

This is a sweeping change, and the PIA fails to explain its potential impact.  I am particularly concerned with how TSA’s new authority will be used against transgender passengers, who already suffer rampant discrimination at the hands of TSA officials. The AIT screening process is demonstrably discriminatory against transgender passengers; the scanners use a blue button and a pink button which is selected by TSA officials.  The buttons calibrate the machine for cisgender anatomy and often flag “anomalies” when presented with the anatomy of transgender passengers, such as a woman (pink button) who has a penis, or a man (blue button) who has breasts.  Because which button is pressed is at the discretion of the TSA agent, “anomalies” may also be flagged if the agent incorrectly genders an individual, such as pressing the blue button for a woman.  Previously, some transgender passengers chose to avoid this discriminatory screening process by opting for the physical screening, but under the new procedure, they may no longer have that opportunity.

Accordingly, I have the following question: what assurances do transgender travelers have that this new authority will not be used to harass them, especially in light of TSA’s woeful record of discrimination against transgender people?

Sincerely,
— Emily T. Prince, Esq.

Letters to Senate: TSA Cissexism

I felt it necessary to call some attention to the story published yesterday about TSA misconduct towards trans passengers, documented in a story for Al Jazeera America by Alissa Bohling (http://america.aljazeera.com/articles/2014/5/26/groin-anomalies-andpatdownstravelingwhiletrans.html – content warning for cissexism and references to misgendering and transphobic harassment).  Identical letters are going out tomorrow to Senators Carper and Rockefeller, along with my two Senators and Representative.  The whole package has been copied to the Secretary of the Department of Homeland Security and the Administrator of the Transportation Security Administration.

Am I expecting a miracle? No – but at least I can say that I tried, at the very least.