Trans Americans enjoy robust bias protections

June 28, 2012 at 9:02 am EST | by Dana Beyer

We are now two months since the landmark EEOC decision expanding the definition of “sex discrimination” under Title VII of the 1964 Civil Rights Act to include transgender and gender non-conforming individuals. These are federal protections, which cover all Americans, from Montana to Maryland to Mississippi. As a result, the trans community is also covered under President Johnson’s Executive Order #11246 from 1965, protecting all federal contract employees from discrimination.

We are also a little more than six months from the historic 11th Circuit Court of Appeals decision making transgender persons a protected class under the Equal Protection clause of the 14th Amendment to the United States Constitution. While this formally only covers Alabama, Florida and Georgia, it is part of a growing trend, and the likelihood that another Circuit will move to the right of Judge William Pryor of Alabama is very slim. So for all intents and purposes, short of a Supreme Court decision, which may never occur, all Americans are now constitutionally protected from discrimination on the basis of trans status and gender non-conformity.

Of course, nothing is written in stone; everything in life is subject to change. Even the stones containing the Ten Commandments were reported to have been smashed. Even the U.S. Supreme Court reverses itself from time to time. We minorities know full well that the price of liberty is eternal vigilance. There is always work to do, but now is the time to celebrate and educate.

Unfortunately, some LGBT organizations continue to obfuscate these momentous changes, even going so far as to foment fear in the trans community. Our job today is to increase awareness of the changes and educate the community about their rights and the process now in place to protect those rights. Instead, one national organization recently stated that there is no clear federal law protecting trans persons, and went on to say that “in 34 states, people can be fired just because they’re transgender — reasons completely unrelated to their work!”

Worse, a Maryland LGBT organization, while promoting a “listening tour,” brazenly stated, “trans people in Maryland can still be fired from a job, denied a place to live, and refused service in a restaurant because of who they are.” That’s simply not accurate. Those trans persons who live in Baltimore City and County, and Howard and Montgomery Counties, are fully protected by city and county laws against discrimination. And that same April EEOC decision now protects those persons at the federal level, and expands protections throughout the state.

There is no question about this. Arguments that the EEOC action is not significant because it only fully processes 900 cases a year are completely beside the point. There are also few race and sex discrimination cases processed annually under the 1964 Civil Rights Act. Changing the law has the effect of preventing cases from being taken all the way to court, and ultimately, when the word gets around to employers and landlords, the prevalence of acts of discrimination becomes severely reduced. Laws are primarily tools for education, not punishment.

It has also been said that the federal law is insufficient; what we really need is a state law. But in Maryland the state law has never contained a private right of action, so taking an employer to state court even with a state law would not be possible. Today one can already effectively threaten to go to federal court. Yes, it is important that our state comes up to code, explicitly covers housing and public accommodations, and announces, proudly, that it cares about its transgender citizens and will do its part, but a state law is no longer a legal necessity to protect Marylanders against employment discrimination.

A similar argument can be made about the federal ENDA law, which is explicitly limited to employment. It is important for a contemporary Congress to state, clearly and unequivocally, that transgender and gender non-conforming citizens have a right to be protected against discrimination. They owe it to us, as our representatives, to make that statement, as the president has, and enshrine it in its own law. It is essential for the gender-conforming gay community, who are not yet protected under Title VII. But while it may be a political necessity, it is not a legal necessity today to protect transgender Americans, who are covered as described above. To solidify those rights, yes. To protect the community against a backlash or retrenchment under a reactionary regime in the future, yes. To make it harder for a future Supreme Court to repudiate all the lower court decisions, yes. But let’s acknowledge and use our current robust protections, and let’s not promote ignorance because we’re unable to adapt to circumstances that have radically changed for the better.

employment transgender

Dana Beyer

Mike in Houston

While the EEOC decision was historic, it’s not clear that the rest of the bureaucracy has gotten the message – one case starts the ball rolling, but it will take several more to make it stick… It’s also not apparent to anyone who looks at an EEO poster at work that gender identity / expression is part of the equality mix…

And before berating HRC or other national orgs for continuing to state that you can be fired for being transgender in 34 states – think about this: can you imagine the sh*t storm from the trans community if their messaging was changed to just talking about the need for employment protections for the LGB community? That may be the right legal strategy, but I can already hear the “threw us under the bus” crowd (see the companion piece from Ashley Love) ginning up their outrage machine.
Dana Beyer

Good points, Mike. First, the bureaucracy is setting up to train the 53 EEO offices and will be rewriting its manuals. Implementation in any bureaucracy takes time.
Second, I never said it was HRC. One shouldn’t jump to conclusions.
Third, the question that trans people ask is simple: “What are my rights?” We have an obligation to answer that clearly and correctly.
Finally, as for how we message going forward (and messaging is different from providing answers to the current situation), I will say what I testified in a Senate briefing on ENDA last month: We want ENDA to solidify protections for the trans and gender non-conforming communities, and it should be inclusive of sexual orientation. Until gender-conforming gay folks are covered under Title VII, and I foresee that happening in the not-too-distant future, the trans community’s motto should be “No Gays Left Behind.” We needed the gay community to stand with us; now we need to stand with the gay community (and, of course, many of us are gay, too.) Those who argue against inclusive civil rights have missed the train, the train which includes all of us gender variant persons, be we radical separatist butch lesbians or radical separatist post-op transsexual women. Curtis Mayfield sang it best back in 1965: “People get ready, there’s a train a-comin, you don’t need no baggage, you just get on board.”
Abby Jensen

Thanks for this well-written article, Dana. There is, however, one error that needs correction. Contrary to your statement near the end, LGB, as well as straight, people *are* protected under the EEOC’s decision in Mia Macy’s case, and the principles and case law, included Vandy Beth Glenn’s case from the 11th Circuit, that underlie it. All that is required, for them, as well as for trans people,
is proof that the cause of the discrimination against them was their gender non-conformity, not their sexual orientation or some other non-protected factor. That this is true is best demonstrated by the fact that the basis for this entire line of case law, which the EEOC’sof decision is the most recent culmination, is a Supreme Court case (Price Waterhouse v. Hopkins) in which the Court held that the denial of a promotion to a straight woman because she wasn’t feminine enough was illegal sex discrimination under Title VII.

Another thing to keep in mind is that this same expansion of bans on sex discrimination under federal law can, and should, be appplied to state law bans on sex discrimination in public accommodations and other areas besides employment. I believe it only a matter of time before this interpretation applies throughout the U.S.
Abby Jensen

Thanks for this well-written article, Dana. There is, however, one error that needs correction. Contrary to your statement near the end, LGB, as well as straight, people *are* protected under the EEOC’s decision in Mia Macy’s case, and the principles and case law, including Vandy Beth Glenn’s case from the 11th Circuit, that underlie it. All that is required, for them, as well as for trans people, is proof that the cause of the discrimination against them was their gender non-conformity, not their sexual orientation or some other non-protected factor. That this is true is best demonstrated by the fact that the basis for this entire line of case law, of which the EEOC’s decision is the most recent culmination, is a Supreme Court case (Price Waterhouse v. Hopkins) in which the Court held that the denial of a promotion to a straight woman because she wasn’t feminine enough was illegal sex discrimination under Title VII.

Another thing to keep in mind is that this same expansion of bans on sex discrimination under federal law can, and should, be applied to state law bans on sex discrimination in public accommodations and other areas besides employment. I believe it is only a matter of time before this interpretation applies throughout the U.S.

(Editor: Pardon the double posting. I’m doing this from my phone, which isn’t easy. Please approve and post this corrected comment in place of the first one. Thank you.)
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