By Lorraine Yeomans
Recent actions by President Barack Obama’s administration and a flurry of new local laws are reviving discussion on the issue of gender identity (sometimes also referred to as gender expression) discrimination. Since 1993, when Minnesota adopted the first state law protecting against discrimination based on gender identity, employers have been doing their best to modify workplace practices to ensure compliance with gender identity and often-related sexual orientation protections. This has not always been an easy task, and employers are often confused by the distinctions these laws create.
As you’re probably already aware, neither sexual orientation nor gender identity are protected classes under Title VII of the Civil Rights Act of 1964. As a result, many state and local governments have specifically included provisions for sexual orientation and/or gender identity in their non-discrimination laws. Because these state and local laws often encompass one or the other (sexual orientation or gender identity), but not always both, it is important for employers to understand the distinction between the two terms.
Gender Identity vs. Sexual Orientation
Gender identity and gender expression do not necessarily involve a person’s sexual preference. Gender expression is the non-physical, outward projection of masculinity or femininity to others, while gender identity is the inward manifestation or self perception a person has of his or her gender. In other words, gender identity refers to a person’s self-identification as a male or female.
Sexual orientation is not necessarily linked to gender identity. Sexual orientation is defined by the American Psychological Association as “an enduring pattern of emotional, romantic, and/or sexual attractions to men, women, or both sexes.” Sexual orientation also includes “an individual’s sense of personal and social identity based on those attractions, behaviors expressing them, and membership in a community of others who share them.” Gender identity and sexual orientation are similar in the fact that both reflect an individual’s self-conception. The difference is that sexual orientation also includes sexual behaviors. It therefore can be a more observable trait.
These differences create the need for laws specifically addressing each classification on its own. They also create nuances for employers to grapple with to ensure equal treatment in the workplace. It is important for you to carefully review your state and local laws to determine exactly what is covered in order to put appropriate policies, procedures, and practices in place. This includes examining harassment policies; dress codes; and use of restroom, locker, and other facilities. Further, because local jurisdictions often vary greatly from one to the other, you may need to be familiar with several individual laws.
Federal Activity
This past January, President Obama’s administration added language that explicitly bans employment discrimination based on gender identity to the Equal Employment Opportunity statement on the federal government’s jobs website. While the change currently only applies to federal jobs, the administration’s actions could still have real impact on private employers. By granting some legitimate protection to gender identity, the Obama administration has demonstrated a willingness to extend other existing protections to gender identity discrimination. With this gesture, many supporters have higher hopes that the federal Employment Nondiscrimination Act (ENDA) will become law. The bill is strongly supported by the administration and, with the recent passage of health care reform, is now likely to resurface in federal dialogue.
ENDA would prohibit employment discrimination against individuals based on their sexual orientation or gender identity. The bill would mirror Title VII, prohibiting private employers, employment agencies, labor organizations, and joint labor-management committees from firing, refusing to hire, or discriminating against those employed or seeking employment based on their perceived or actual sexual orientation or gender identity.
The bill would also prohibit retaliation, covering individuals who have opposed unlawful practices or who have participated in an employment discrimination proceeding. ENDA’s provisions also impact public sector employers, but do not apply to religious organizations as defined by Title VII, volunteers who receive no compensation, private membership clubs, or uniformed members of the Armed Forces. The bill is currently pending in committee in both the House and Senate.
With the strong support of the President, as well as a significant number of supporters in both houses of Congress, this could be the year for ENDA. It would be wise for employers to begin reviewing workplace policies and procedures now, to ensure that they will be in compliance with the new act if it passes.
State Legislative Action
In the meantime, states and local governments continue to take action. Since 2007, when Iowa, Colorado, Vermont, and Oregon joined the ranks, no states have adopted employment discrimination protections for gender identity. However, in 2009 at least thirteen states considered such legislation, including Arizona, Connecticut, Florida, Indiana, Kansas, Kentucky, Maryland, Massachusetts, Michigan, Missouri, Montana, New York, North Dakota, Pennsylvania, South Carolina, Texas, Utah, Virginia and Wyoming. Similar bills are being taken up in most of these states again this year.
Most recently, the New York Assembly passed the Gender Expression Non-Discrimination Act (GENDA). This bill, proposed and passed by the Assembly for the third consecutive year, is now in a Senate committee awaiting action. The cities of Albany, Buffalo, Ithaca, New York City, and Rochester, and the counties of Suffolk and Tompkins have already enacted local GENDA laws.
Last year, Delaware added sexual orientation to its list of protected classes. The law, like many others, exempts religious employers.
Municipal Ordinances on the Rise
In part because action on the state level has failed to produce new laws of statewide application, many local cities and counties have continued to add protections by ordinance and, in some cases, executive order. Gender identity non-discrimination laws exist in well over 100 cities around the country. Generally these ordinances apply to all private employers, labor organizations, and employment agencies, although some are limited to public sector employers only. Most of the ordinances that apply to private sector employers include various exemptions such as those for religious organizations or smaller businesses, as determined by an employee cap.
In 2008, Broward County, Florida and the cities of Columbia, South Carolina; Detroit, Michigan; Gainesville, Florida; Hamtramck, Michigan; Kansas City, Missouri; and Oxford, Ohio were added to the list of those protecting transgender individuals. In 2009, several more cities passed ordinances, including Nashville, Tennessee and Kalamazoo, Michigan. Nashville’s ordinance expanded protections to include both sexual orientation and gender identity, but applies only to public employees of the city. Kalamazoo’s ordinance applies to public and private employees.
Additionally, Cleveland, Ohio amended its non-discrimination law to include gender identity, while Akron, Ohio also added gender identity to existing protections. Columbus, Ohio’s ordinance has protected sexual orientation for over 20 years and gender identity was added to that law in 2008. The City of Tampa, Florida also joined the approximately 16 other cities in Florida that have laws in place to protect against gender identity discrimination.
Salt Lake City also recently passed an ordinance banning discrimination in housing and employment based on a person’s sexual orientation or gender identity. The ordinance took effect April, 2, 2010. In defending the ordinance, the Salt Lake City Council stated that it wasn’t creating special rights or privileges for any special group of people because “every person has a sexual orientation and a gender identity.” On the same day that the Salt Lake City council adopted its ordinance, the City council in Fort Worth, Texas took the same action. Fort Worth joins the cities of El Paso, Austin, and Dallas in providing such protection.
Last year, the mayor of South Bend, Indiana banned discrimination based on sexual orientation or gender identity by an executive order covering city employees and applicants for city jobs. The executive order was signed after the failure of a proposed human rights ordinance, which, among other things, would have included a ban on discrimination for gender identity. This was the mayor’s first executive order after 12 years in office.
Elsewhere in Indiana, in the cities of Bloomington, Fort Wayne, Indianapolis, Lafayette, Michigan City, and West Lafayette, and in Tippecanoe County, only sexual orientation is protected from discrimination. Gender identity is included in the anti-discrimination laws of Bloomington and Indianapolis. Meanwhile, the state of Indiana operates under a Governor’s executive order that covers both gender identity and sexual orientation in state employment only. A few other states and local jurisdictions operate under similar executive orders.
Bottom Line
As you can see from all of this recent local activity this issue has a great deal of support from citizens of cities and states around the country. We should expect to see a continuation in these actions on the local level and it is only a matter of time for more states to pass laws of statewide application.
Lorraine Yeomans is a regular contributor to the Employers State Law Alert.