For Mia Macy, being part of a landmark decision that said transgender workplace discrimination is illegal under existing civil rights law is “still amazing” on the day of its second anniversary.
“It’s weird; I have to set myself outside of it and look at it,” Macy said. “It’s a blessing and great thing on one side. Now that we’ve had a couple years it’s kind of disappointing the LGBT community hasn’t embraced the fact that lawyers and employment specialists around the country have known for the last couple years: We have LGBT workplace protection rights.”
The unanimous decision in Macy v. Holder, handed down by the U.S. Equal Employment Opportunity Commission on April 20, 2012, established for the first time that anti-trans bias in the workplace amounts to gender discrimination under the Title VII of the Civil Rights Act of 1964. From that time forward, it was clear the EEOC would represent trans victims in litigation.
After a California-based Bureau of Alcohol, Tobacco, Firearms and Explosives laboratory denied her a job as a ballistics technician when she announced she would transition, Macy filed the complaint. She said at the time she “had no clue” the litigation would result in such a landmark ruling.
“I thought it would just have an impact maybe over maybe ATF or the Justice Department,” Macy said. “In no way did I ever imagine that it would be a federal decision. There came a part closer to when the decision came out that we knew there might be some bigger ramifications with the decision, but until we saw the decision, we had no idea.”
Macy said prior to her filing to complaint, she and her wife were allowed to consider additional causes for seeking relief. Driving in their car, they decided to add “gender stereotyping” to the complaint, which Macy added with Sharpie marker by writing on the roof of her vehicle. That was the rationale by which the EEOC came to the conclusion the Macy experienced illegal discrimination when seeking a job.
“Thus, we conclude that intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination ‘based on… sex,’ and such discrimination therefore violates Title VII,” the decision states.
LGBT advocates say since the decision was handed down, the ruling has helped other trans victims of workplace discrimination. The EEOC didn’t respond on short notice to provide information on damages won or the number of LGBT victims, but pledged to provide the information in the coming days.
Tico Almeida, president of Freedom to Work, said the Macy decision was essential in reaching a settlement with a federal contractors for a Maryland trans victim of workplace discrimination represented by his organization and Lambda Legal.
“I was impressed with the EEOC staff for conducting such a thorough investigation and interviewing so many witnesses to the anti-transgender harassment,” Almeida said. “This case shows that the EEOC takes very seriously its role enforcing LGBT workplace protections and that the Macy decision is being implemented in a very real way.”
According to Freedom to Work, EEOC investigated the complaint under Title VII based on the victim’s complaint her co-workers regularly harassed her with slurs like “tranny,” “drag queen” and “faggot.” In September 2012, the agency issued a “cause determination letter” finding reasonable cause the company violated the law.
The name of the plaintiff, the company and the damages won remain under wraps as part of the settlement. It’s likely the first time in history that the EEOC has investigated allegations of anti-trans harassment and ruled for the trans employee after the Macy decision.
Mara Keisling, executive director of the National Center for Transgender Equality, said the Macy decision has formed the basis for “hundreds of cases” of trans discrimination filed since that time.
“Trans people really are standing up for themselves a lot, lot more with this tool,” Keisling said. “I don’t mean they didn’t have a spine before, I mean now they have a tool, and that’s empowered them to stand up for themselves with that tool.”
Keisling emphasized the Macy decision was the culmination of a “trend” started by courts ruling in favor of trans people in sex discrimination cases. That trend, Keisling said, continues with developments like the Department of Health & Human Services determining the sex discrimination provision in the Affordable Care Act covers gender identity.
Despite the nature historic of the decision that her lawsuit produced, Macy said she’s been unable to secure employment following the ruling and blames the Internet record of her case as the reason why companies are deterred from hiring her.
Although as part of settlement, Macy was supposed to be instated in the job at ATF, she said that ultimately didn’t happen, but refused to say why. She said she’s been unsuccessful in trying to find other work despite what she says are hundreds of attempts, and instead has returned to school on a pre-law track with the intent to go to law school to study employment law.
Further, Macy said the Transgender Law Center, which initiated the lawsuit on her behalf, “fired” her as a plaintiff and other attorneys handled the litigation going forward. Macy was reluctant to go into much detail, citing attorney-client privilege, but mentioned she “didn’t want to continue the promotion side with them.”
“I was terminated at the end of 2012,” Macy said. “They sent me a letter and said they would no longer be my attorneys and called me and said we’re no longer representing you.”
Ilona Turner, a spokesperson for the Transgender Law Center, said in response to Macy’s assertion she was terminated that the organization helped Macy find other representation following the initial stages of her lawsuit.
“We are very proud of the contribution we were able to make in Mia’s case,” Turner said. “After we represented her through her initial filing and appeal and won the historic EEOC decision establishing that Mia and all other transgender employees are protected under Title VII, we helped connect her with another firm to represent her through the next stage of the process.”
One issue that remains is whether Title VII also protects gay, lesbian and bisexual people from employment discrimination under the Macy just as the EEOC determined it affords protections to trans people.
The view that LGB people are protected is espoused by Chai Feldblum, a lesbian member of the EEOC, who said earlier this month during an interview with the Washington Blade that anti-gay discrimination “for the purposes of the law” is sex discrimination.
Just recently, a federal court in D.C. allowed a gay man, Peter TerVeer, to sue the Library of Congress on the basis of gender discrimination on the basis of his allegations of anti-gay bias on the job.
Sarah Warbelow, legal director for the Human Rights Campaign, noted that Macy doesn’t explicitly address sexual orientation, but looking at legal precedent, gay people should be covered under Title VII.
“We think are claims to be made by LGB people under Title VII,” Warbelow said. “It’s not as clear-cut based on the court decisions as this point as Macy’s case made it for trans people.”
But it’s the doubt on whether the Title VII protects against anti-gay discrimination — not to mention that lack of explicitly statutory language informing the courts that discrimination against trans people is unlawful — that makes LGBT advocates say additional action is necessary.
One is passage of the Employment Non-Discrimination Act, legislation that would bar many employers from firing or discriminating against LGBT people in the workplace. The other is an executive order for LGBT people along the lines of Executive Order 11246, which bars federal contractors doing $10,000 a year or more in business with the U.S. government on the basis of race, color, religion, sex, or national origin.
Despite the heavily sought-after nature of both these initiatives, neither have yet come to fruition. The Senate last year passed ENDA by a vote of 64-32 on a bipartisan basis, but it has stalled out in the House as Speaker John Boehner (R-Ohio) has continually said he opposes the legislation. And President Obama continues to withhold an executive order for LGBT people as the White House has said he prefers a legislative approach to the issue.
Warbelow said these added protections are necessary for trans people in addition to Macy — let alone to protect LGB people — in case courts don’t side with EEOC in the legal reasoning that sex discrimination occurred.
“While I’m hopeful that when a case reaches the U.S. Supreme Court, they will apply the same legal reasoning as Macy, there’s no guarantee when it comes to the Supreme Court,” Warbelow said. “Until that happens, we want to make sure that transgender people are explicitly protected.”
Additionally, Warbelow said more explicit non-discrimination protections for trans people would “put employers on notice” because posters would be updated in the workplace indicating gender-identity discrimination is just as illegal as discriminating on race, gender or religion.
But Macy said non-profit LGBT advocacy groups continue to say they need ENDA and the executive order to keep pushing for donations, even though the Macy decision already provides protections to LGBT people under the law.
“They don’t want somebody saying publicly they have something already,” Macy said.
Advocates are also pushing the Labor Department to interpret the existing sex discrimination provisions in Executive Order 11246 to enable to Office of Federal Contract Compliance to investigate and assign damages for cases of trans discrimination. In February, Labor Secretary Tom Perez told the Blade that potential move was under review, but the Labor Department has provided no updates since then.
Keisling said the Macy decision is “not the end” for what trans workers need for workplace non-discrimination protections in part because of the symbolic of nature of both ENDA and the executive order.
“It creates other enforcement mechanisms, other roads to educate employers,” Keisling said. “Ultimately, that’s what the LGBT movement is. It’s about educating people and educating them some more and winning them more and embracing them and then winning over more people until we can stop doing that hopefully some day in the future — maybe never.”