Successful advocates learn to keep their eyes on the prize. We must adapt to survive long, fallow periods when progress is non-existent, or even when we have our backs up against the wall in a battle for survival. But as has been true for African Americans, women, and gay folks over the last 50 years, remarkable progress has now come to fruition for the trans community. While the LGBT community still has major challenges ahead, including comprehensive civil rights for the entire LGBT community, marriage equality, LGBT access to humane, quality health care, confronting the scourge of same-sex intimate partner abuse, and bisexual empowerment, this is an historic day for the entire LGBT community, and particularly so for the trans community.
On April 20, the Equal Employment Opportunity Commission (EEOC), in a ruling that is binding on all federal offices and agencies, and was unanimously approved in a bipartisan manner, stated that gender-identity discrimination, by definition, constitutes sex discrimination, whether based on Title VII of the 1964 Civil Rights Act or the constitutional guarantee of equal protection of the laws. This historic ruling, Macy v Holder, consistent with the current state of Title VII case law, follows on the heels of the equally historic 11th U.S. Circuit Court of Appeals decision in Glenn v Brumby. That decision, building on a growing number of federal trial court and appellate decisions, expanded the definition of “sex discrimination” to include gender expression, thereby constitutionally including transgender and gender non-conforming persons under the Equal Protection clause of the 14th Amendment to the United States Constitution.
Basically, this EEOC decision expands protections beyond the governmental realm in an all-encompassing manner, including private employers of 15 or more employees. The ultimate arbiter about Title VII’s protections against gender identity discrimination may be the Supreme Court, but there is no guarantee that it will ever take any such case in the future, and, in the meantime, the legal meaning of “sex discrimination” will be expanded and used in a diverse number of arenas, including public accommodations and housing.
The Commission noted that the term “sex” encompasses both sex (i.e., the biological characteristics men and women) and gender. Additionally, the Commission explained that federal courts have increasingly been using the Price Waterhouse v Hopkins “sex stereotyping” theory to determine the presence of sex discrimination.
Many of us have spent the past decade working to pass gender identity and expression laws in states and municipalities. We now have done so in 16 states, D.C., and more than 150 localities, encompassing 45 percent of the U.S. population. That work has laid the cultural as well as legal groundwork for the evolution to today’s world, where the understanding of the word “sex” includes not only the biology of transgender as well as cisgender men and women, but the manner in which that biology is uniquely expressed by all human beings. It is a part of the human heritage of us all, regardless of our skin color, ethnicity, religious beliefs or sexual orientation. It is also a long way from the lay understanding of “sex” to mean “I did not have sex with that woman,” and just as the gay community has made major advances by forcing the recognition that gay people have lives like straight people, and care as much about motherhood, the military and apple pie as the next person, so now gender non-conformity is about far more than the plumbing of a human being or a public restroom.
Finally, I’m curious to see how the Michigan Womyn’s Music Festival and similar venues will treat trans women in the future. This decision knocks out the foundation from under those separatists who have claimed that genitals rule, that trans women should be excluded from “female” spaces, and that trans-cis lesbian relationships are inherently a form of rape. Maybe now we can consensually put all that silliness behind us, and make this world more welcoming for all.
As Gandhi is reputed to have said, “First they ignore you, then they laugh at you, then they fight you. Then you win.” We just won.