As the two-year anniversary of a landmark decision granting non-discrimination protections to transgender Americans approaches, Chai Feldblum is ready for the next case that could extend those workplace rules to gays, lesbians and bisexuals.
Feldblum, a lesbian attorney confirmed by the U.S. Senate to her second term as a member of the U.S. Equal Employment Opportunity Commission in December, said a decision affirming that gay, lesbian and bisexual people are protected would provide clarity under the law.
“I think it would benefit everyone, the agency, the development of the law if we got a case that presented the sexual-orientation issue as clearly as the transgender issue,” Feldblum said.
The decision in Mia Macy v. Holder, delivered by EEOC on April 20, 2012, affirmed for the first time that transgender people are protected under Title VII of the Civil Rights of Act of 1964 against job discrimination. From that point forward, it was clear the EEOC — the federal agency that enforces laws against workplace discrimination — would take cases for transgender people who say they encountered discrimination, harassment or bias in employment.
But even as she seeks a sexual-orientation case for greater clarity, Feldblum said during an interview with the Washington Blade in her office Monday that historic decision extends not only to claims of gender-identity discrimination, but to sexual-orientation discrimination as well.
“It might also be sexual-orientation discrimination, but for the purposes of the law, that’s sex discrimination,” Feldblum said. “If you have a stereotype that women should be sexually involved with men, that’s a sex stereotype.”
Still, Feldblum tempered the impact of Macy by saying courts could reject EEOC’s interpretation of the law. She insisted that other legal measures, such as an executive order from President Obama barring LGBT workplace discrimination among federal contractors or passage of the Employment Non-Discrimination Act, are needed.
Prior to her confirmation to the EEOC during the Obama administration, Feldblum worked as a longtime advocate for the LGBT community. Starting her work during the AIDS crisis of the 1980s, Feldblum was part of the unsuccessful campaign to stop “Don’t Ask, Don’t Tell” from becoming law in the early 1990s and is credited with drafting the Americans with Disabilities Act and an early version of ENDA.
On the wall in her office is a framed picture of an America flag surrounded by the rainbow colors of the Pride flag — memorabilia from her time with the Campaign for Military Service against “Don’t Ask, Don’t Tell.” Among the plaques and photos on her desk is a small framed collection of her best quotes in the Washington Blade compiled in the 1990s.
Now that so many of the goals on LGBT issues that she worked toward over decades are coming to fruition within the space of a few years, Feldblum said the feeling is “remarkable and wonderful.”
“I attribute it to a host of things,” Feldblum said. “To people being open and honest, to people being courageous and asking for things inside their workplaces even without ENDA, forming alliances, asking for protections, voluntary protection. I attribute it to municipalities passing laws that say we’re not going to have contracts with you unless you have a non-discrimination policy. I attribute it to some of the legal cases. I attribute it to some of the novels. None of it moves by itself.”
The complete Q&A between the Blade and Feldblum follows:
Washington Blade: Almost two years since the Macy decision, how effective do you think that ruling has been in prohibiting or stopping transgender discrimination?
Chai Feldblum: Well, I think it has been effective in light of the sphere in which that opinion operates. So, the ruling was a ruling in the federal sector that said that federal employees who were discriminated against because of their transgender status could come through the EEOC process because we ruled it was a form of sex discrimination. And, because that was a position of the commission, that was going to be the agency’s position not only for federal employees, but for anyone who would show up at our door.
So, that’s not a ruling that any court is bound by. It’s certainly a ruling that a court could look at to see whether the reasoning makes sense to a particular judge, but mostly it’s about effecting our practices inside the agency. So, I would say, inside the agency, it has done the work it’s supposed to do.
I would say that both before the Macy decision and before our strategic enforcement plan, there were probably transgender and gay people showing up at EEOC, complaining about discrimination and had just been told the agency could not do anything to help them. And now, we have a bit over 200 charges in our system across the country that our investigators are investigating, and my guess is some of these folks knew to come to the EEOC because of the Macy decision. I bet you a lot of other folks didn’t know before that they weren’t covered, got discriminated against, they know that when they’re discriminated against, they go to the EEOC, so they showed up at our doors. And now, they’re not being turned away.
Blade: That sounds like you’re making a distinction. You’re saying that decision made a lot of impact within the agency, but there’s still some question about whether the courts are going to agree with you that there was gender discrimination?
Feldblum: Of course, because courts have the autonomy to decide. But do I think the Macy decision has had and will have an impact on how federal and state courts reason? Absolutely, yes. Because I think we did the smart legal analysis.
So if you look at the TerVeer case that came out in the federal district court just last week, the judge didn’t reference the EEOC, but I know that briefs that were put in that case absolutely referenced the EEOC’s decision not only in Macy, but in other federal sector cases that the commission issued. Veretto, Castello, Baker, I mean, other cases where we explained, in that case that sexual orientation could be covered on sex discrimination.
I absolutely believe it will have an effect; it’s just not an absolute necessary effect. When people say do you still need ENDA if you have TItle VII protection, well, of course, why wouldn’t you want a law that very clearly explicitly says sexual orientation is covered, gender identity is covered? Now, of course, you don’t want that law to be so weak that it gives you less than what you potentially have now. And that is where I think the debate will go in the future.
But it’s important not to underplay the importance of the EEOC’s Macy decision and its other sexual-orientation decision because it’s not affecting just the agency because it set a standard for legal reasoning. It’s important not to underplay the importance of those rulings, but it’s also important not to overplay them.
Blade: What was the deliberation leading to the decision and were you surprised that it ended up being unanimous?
Feldblum: OK, so I can’t talk about the deliberations inside the commission. That’s sort of confidential, but also we actually because of the Sunshine Act, we don’t deliberate as a body sitting down — the five of us. You can have conversations one on one. So I had one-on-one conversations with folks who were the commissioners. So, I don’t feel comfortable saying anything about the internal deliberations. I will say that I think it’s a very strongly reasoned legal decision, and I’d like to think that that’s why it got the support it got.
Blade: Can you at least say whether or not you were surprised that all five commissioners said, “Yes, this is the way we should go.” Was it a surprise that was the result?
Feldblum: Again, what I can tell you in terms of process is basically this comes sort of a negative option. We have a lot of stuff that we’re doing, including a lot of cases. So, we tend to do these through electronic voting. And so, what happens is someone has to object and ask, call for a vote, in order for everyone to then to be recorded. And in this case, there were various changes that were made, circulated around, and then there was no call for a vote. So when they don’t call for a vote, we just call it unanimous, but it wasn’t like there were actual people like a click of a button, clicking “yes.” But I mean, no one registered a “no” vote, and that’s important.
Blade: As a result of the decision, is it fair to say that transgender Americans have greater protections under the law in terms of employment thanks to Macy than gay, lesbian or bisexual people currently have?
Feldblum: Oh, no, that’s completely wrong because the point of Macy was it said it’s a form of sex discrimination when you’re acting on the basis of a gender stereotype. And we said you’re inherently acting on the basis of gender stereotype when you suddenly don’t like the fact that someone is transgender. We said it’s got to be because you have some stereotype that someone who’s designated male at birth should stay that way.
We also though at the last part of Macy, and, I think one of the most importance pieces of Macy is we explain that the important sentence in the Price Waterhouse decision, which is the basis for the sex stereotyping concept, was that as an employer what you cannot do is take sex into account. That’s what was illegal — to take sex into account, to have sex matter. That’s what’s illegal under Title VII.
The one way that you can find out if someone is taking sex into account is if they’re acting on a sex stereotype. That is evidence that sex is being taken into account. You don’t even have to go to the sex stereotyping analysis if you can just show straight on that sex has been taken into account. So, the Macy decision happened to have covered a transgender person, so there was no reason for us to talk about how that legal analysis would play out on sexual orientation, but the legal analysis applies whether you’re a transgender person or a gay person.
So, for example, the other federal sector cases that our office of federal operations has decided and, unlike Macy, has not yet come up to the commission for a vote said if you have a sex stereotype that men should be marrying women and not men, that’s sex discrimination. It might also be sexual-orientation discrimination, but for the purposes of the law, that’s sex discrimination. If you have a stereotype that women should be sexually involved with men, that’s a sex stereotype.
And that’s basically what the federal district court decided in the TerVeer case. The only stereotype that played there was the supervisor’s alleged stereotype that this TerVeer wasn’t a real man. It had nothing to do with how he presented, how he walked, how he dressed, how he talked. It happened only when the supervisor found out from his daughter that this employee was gay.
Blade: I was going to ask you if we’ll see another case come up prohibiting sexual-orientation discrimination similar to what Macy did for Mia Macy. But it seems like we’re already there. You don’t think we need to find another case?
Feldblum: It’s a sort of a nuanced thing in terms of commission process. I think it makes sense to have another case that actually lays out the legal logic more clearly. You have to understand, where is [the Office of Federal Operations]? Two floors below? One floor below? They have like 25 lawyers there. They put out something three to 4,000 cases a year. They just cannot in those cases do the type of intense legal analysis that we do as a commission when they come up to us for full analysis and the writing of an opinion.
The year that Macy came out, 2012, we reviewed 13 cases out of the 2[,000] to 3,000, and it’s just that Mia Macy was this very clear jurisdictional case and, I mean, in a way it’s something of a mystery to me as to what cases come and what don’t. But I think the other federal sector cases have applied the sex stereotyping analysis — both pre-Macy and post-Macy. It hasn’t really been done extensive — you don’t have six pages of legal analysis in any of these opinions. You have one paragraph basically telling the agency, “No, no, you dismissed this too quickly. Go back and investigate.”
So, yeah, I think it would benefit everyone, the agency, the development of the law, if we got a case that presented the sexual-orientation issue as clearly as the transgender issue.
What I reacted against was the idea that gay people had less protection right now than transgender people, and I don’t believe that’s the case. It’s not like when a gay person walks into our office and a transgender person walks into our office that the gay person is getting less of an investigation. They’re both getting a solid investigation to determine whether sex has been taken into account.
Blade: How and when do you think we’ll see a specific sexual-orientation discrimination case coming up as it relates to Title VII?
Feldblum: Yeah, it’s just hard to know. The cases are — there are three ways in which the commission speaks, can put it out its views. One is if the case comes from a federal applicant or a federal employee. That’s how Macy came up, and that could be how a sexual-orientation case would come up. It’s like in any court; you don’t know when the case is going to come to you. So that’s one way.
A second way, which the commission used to use a lot in the beginning of its existence up until about the mid-80s were things called “commission decisions.” These were private sector charges when you wanted to explain an aspect of the law, and then the commission just stopped doing those. The last one was in 2000. It issued a commission decision. On that, theoretically, the commission could take any number of any charge that’s currently pending and choose to write a whole commission decision. Since the commission hasn’t done that in 20, 30 years, I’m not sure we will.
And then third, of course, is just to issue guidance through regulation. That’s a long process. For me, I feel it’s just a matter of time in terms of what comes before the commission, but it’s really pretty hard to predict.
Blade: You kind of hit on this, but can we talk more about Peter TerVeer’s case suing the Library of Congress? Do you think that could be the case that would establish definitively that sexual-orientation discrimination is gender discrimination?
Feldblum: There’s a few things about that. In the TerVeer case, the D.C. Circuit Court is the only circuit court that did not have some sentence in one of their circuit court opinions either as a holding as a throwaway line that sexual orientation is not covered under Title VII. Basically, every other circuit has said that. This district court just had more flexibility to just look at the words of the statute and look at the case law.
This is a motion to dismiss, so a motion to dismiss is not going to get appealed. I learned this. I’m such a non-litigator. I’m like, “Oh, is DOJ going to appeal?” Apparently, motion to dismiss, you have to have an interlocutory appeal, which just wouldn’t happen. So all this means now is that Peter TerVeer can have his day in court.
So, either there’ll be a trial and then a result and then that could end up going up, so that will take some time, or the Library of Congress could end up settling with him. So I don’t know what’s going to happen in terms of the TerVeer case, but absolutely it could be if it ends up going to trial and there’s a ruling in his favor and then the Department of Justice appeals it on the grounds that he couldn’t have used this Title VII law in the first place. Yes, D.C. Circuit could end up being a circuit that rules in his favor.
Blade: How does it make you feel that DOJ is saying that he can’t sue on the basis of sex discrimination?
Feldblum: I have no feelings on the matter, and you’ll just have to ask DOJ what their analysis is.
Blade: Let’s talk about some other things. There is using existing law, but people want other things. Most of those efforts are concentrated on the Employment Non-Discrimination Act. Of course, there’s also pressure on President Obama to sign an executive order to add sexual orientation and gender identity to the categories protected under Executive Order 11246. What do you think those can bring to the table that Title VII could not?
Feldblum: The primary thing they could bring, and the reason I’ve always felt that both of those efforts were useful is clarity and certainty. Clarity, because now you’re not having to explain how and when you discriminate against me because you find out that this spouse that I kept talking about, you just assumed was a guy, and suddenly it turned out this spouse was a woman. And then you fire me. I think that’s pretty clear, as I’ve said, you’re taking sex into account. I mean, if I had been a guy married to a woman, you wouldn’t have a problem, but because I’m a woman married to a woman, suddenly there’s a problem. That’s taking sex into account.
So, to me, that seems pretty clear, but it clearly hasn’t been clear to the courts over the years, so what an executive order does for government contractors, what ENDA does for individual employers is make that case. And that clarity then brings certainty because then you have it certain all across the board. So, those two things those actions bring.
I don’t think it means that people are not protected until those actions have taken place. To the contrary, I think it’s a form of sex discrimination. So the only thing to be careful with both of those actions is to make sure that you’re not undercutting what you have in Title VII. That’s, I think, the only thing to be cautious of.
Blade: Regarding those additional protections, White House Press Secretary Jay Carney said the executive order would be “redundant” if ENDA were in place. Were you aware of that and how would you respond to it?
Feldblum: Yeah, I saw that quote. We have Title VII in place right now that prohibits discrimination based on race, but we also have [Executive Order] 11246 that has race in it, and you have an additional whole office, Office of [Federal] Contract Compliance programs that has significant authority over government contractors, being able to do audits, being able to have aspirations of different races and ethnicities. So, I absolutely think the executive order — it’s duplicative in the sense of saying you can’t discriminate, but it’s not redundant because it just has an entire additional enforcement mechanism through the OFCCP.
Blade: The Human Rights Campaign put out a statement saying it couldn’t disagree more with Jay Carney. Would you say you were unhappy with him for saying it’s redundant?
Feldblum: No. I make it a point of not having feeling in this job.
Blade: One other thing with ENDA … is the religious exemption troubling and should something be done to address that?
Feldblum: I think it behooves any advocacy group that is looking to enact ENDA to look very carefully at any provision in ENDA that provides less protection than TItle VII, including the religious exemption.
Blade: So you think the religious exemption should be narrowed?
Feldblum: What I’m saying is that the advocacy groups that are looking to enact ENDA, and therefore have a responsibility to constituents in terms of what it is they’re asking Congress to enact, have a responsibility to look closely at any provision in ENDA that is less than the protection afforded by Title VII, including the religious exemption.
Blade: Is there anything else? Any other aspect of the executive order or ENDA that could undercut existing law if they were enacted?
Feldblum: Well, we have no idea what an executive order would look like. ENDA’s the only one where there’s a document. ENDA expressly prohibits the bringing of disparate impact cases. ENDA expressly prohibits the EEOC from collecting statistics — something we can do with every other group. I think those are two besides the religious exemption that come easily to mind.
But again, for many years, it was my job to literally know every single line in ENDA by heart. It’s not my job any more, but it is the job of the legislative lawyers, and I hope they are scouring ENDA line by line.
Blade: Let me ask you the question this way, do you want ENDA in its Senate-approved form to pass into law?
Feldblum: I have no comment.
Blade: Another idea is taking the existing executive order and interpreting that to protect transgender workers in the same way that Macy did. Secretary of Labor Tom Perez said that it’s under review. Has the Labor Department asked EEOC or has EEOC provided any information to DOL for this review?
Feldblum: I have no knowledge of whether anyone has reached out to the chair, which is the way that most people usually ask things of the EEOC. They ask the chair’s office. No one has reached out to me individually, but I would say the Macy decision sort of stands for itself in terms of legal analysis. The Department of Health & Human Services has used Macy as well as the Veretto and Castello cases in deciding how to interpret the sex discrimination provision in the Affordable Care Act. The Department of Education has used the Macy decision as well as the other federal sector decisions.
The Department of Education actually was an agency that asked me to come over and talk to them, so I did talk to them maybe about six months ago. The Office of Civil RIghts just wanted to talk about the Macy decision and the implications for coverage of kids in schools. So, obviously, anyone calls me, I’ll go. But largely I feel the decision stands for itself.
Blade: Would you volunteer information to the Labor Department about the Macy decision?
Feldblum: Another thing I’ve learned in this job is (a) there’s enough to do just sitting in this office dealing with the agency and (b) it’s better to be invited than just to show up.
Blade: Let’s talk about the big picture. A lot of these LGBT issues you’ve been fighting for your entire life are now coming to fruition. How does that feel? A lot of these you’ve been fighting for for decades, and now in a short space of time, they’re all happening. I know you said you won’t talk feelings, but will you make an exception?
Feldblum: I am permitted to have a feeling about that. I’m willing to have a feeling about that. It feels remarkable and wonderful. It’s definitely living through history. We talk about taking lessons from history and it’s not very often that lessons from history are also lessons from one’s own lifespan.
So, I think the culture has done an amazing amount in terms of enabling the changes. I think the AIDS epidemic was horrifying. It’s sort of hard to describe to people who didn’t live through it — what it was like to have your friends dying all around you. But it also meant that a lot of people were outed to their families not intentionally. People who would never — the families would never have known, or would never have talked about the fact that they were gay. It would always have been Uncle George who went over to San Francisco or New York.
You now have people across the country, ordinary families who now knew they had a gay son or a gay brother. And that’s when I came into this movement. I graduated law school in ’85 and started working on AIDS issues after two years of clerking, so ’87, ’88. People came out and as the disability grew, as the disability world is learning right now, and it’s something Anupa and I work on together is trying to get people with disabilities to come out, so as to destigmatize.
It’s so important that people can see a competent strong person with something that had been stigmatized. I don’t think we can underestimate the importance of “Will & Grace,” the importance of “Ellen,” just these simple things that made it ordinary.
And so, one of the things, in 2004, I started a enterprise called the Moral Values Project, which was basically just a website and a few ideas. It’s a moral values website that still exists, although I obviously haven’t done anything on it since I came on the commission.
It had three very basic ideas. One, that sexual orientation itself was completely morally neutral. It had no more moral veilance than the color of your eyes or the color of your skin. It was just what it is, sexual orientation. That acting in accordance with your sexual orientation, or acting in accordance with your gender identity was actually a morally good thing. Because the gay rights movement had always tried to stay away from discussions of morality, And I thought that was a losing cause, that people did care about morality, they did care about what seemed right or wrong to them.
I didn’t see how we would ever get a non-discrimination law passed as long as people felt that gay people and straight people were not similarly situated. If you felt they were different in some way, then it’s legitimate to treat them differently. So I just felt that we had to just keep coming out and coming out and coming out, so that people saw there wasn’t a difference.
Not only wasn’t there a difference, so there was no reason not to treat people the same, but there was actually something morally wrong in actually making it a cause for difference. It was morally wrong to have the color of your skin mean anything in your life in anything. Same thing here. If you do things that you stop people from acting on their sexual orientation, when acting in accord with your sexual orientation is morally good, that’s a bad thing. So that’s what I feel is I’ve seen shift.
They still don’t talk about gay people being morally good. No one sort of says it that way. But something shifted in their brain. They don’t think, at least a majority doesn’t think, it’s so morally bad that they should be discriminated against.
Blade: And you attribute that to people being open and honest and positive media coverage?
Feldblum: I attribute it to a host of things. To people being open and honest, to people being courageous and asking for things inside their workplaces even without ENDA, forming alliances, asking for protections, voluntary protection. I attribute it to municipalities passing laws that say we’re not going to have contracts with you unless you have a non-discrimination policy. I attribute it to some of the legal cases. I attribute it to some of the novels. None of it moves by itself.
Blade: Lastly, I want to get personal. Your partner, Nan Hunter, an attorney at Georgetown University is someone I quote quite a bit. Can you share with us any future plans?
Feldblum: I assure you if and when we ever get married, the Blade won’t be the place that people will ever know about it. But we are not married at this point….Our plans are to continue to support each other and the good work that I think we’re each doing. We certainly do not always agree, and that makes for interesting dinner conversations, but clearly both of us care a lot about these issues. Personally, I feel very lucky that I got to be with the love of my life.