Gender identity disorder is a medically recognized condition in which a person’s gender identity doesn’t match his genetic sex. In some cases, the recommended standard of care is counseling and sex reassignment therapy, which includes representing yourself as the gender corresponding to your identity, hormone replacement therapy, and, eventually, gender reassignment surgery.
Although federal law still doesn’t explicitly prohibit transgender discrimination, don’t assume that a transgendered employee has no legal protection. Some federal courts have been allowing transgendered people to proceed under Title VII of the Civil Rights Act of 1964 based on certain legal theories. In addition, many state and local laws either expressly prohibit discrimination based on gender identity or include gender identity within their definition of “sex.”
Is There an ENDA in Sight?
The Employment Non-Discrimination Act (ENDA) is a proposed federal law that would prohibit sexual orientation and gender identity discrimination in the workplace. Some form of the bill has been considered by Congress in every session since 1994, except in the 109th Congress (January 3, 2005 to January 3, 2007). While the bill has always included protections against sexual orientation discrimination, gender identity wasn’t included until 2007. Most recently, ENDA was introduced in the 112th Congress on April 6, 2011, by Representatives Barney Frank and Ileana Ros-Lehtinen in the House and on April 13, 2011, by Senator Jeff Merkley and Mark Kirk in the Senate.
Title VII Provides Some Gender Identity Protection
As almost anyone in the American workforce is aware, Title VII prohibits workplace discrimination based on sex, race, religion, or national origin. Likewise, most people are aware that the courts have ruled that “sex” as protected by Title VII doesn’t mean “sexual orientation.” As a result, while a female may not be treated differently than a similarly situated male, courts have ruled that a lesbian isn’t guaranteed the same treatment as a heterosexual female. At first glance, that distinction might lead a person to assume that a transgendered person, whether male or female, wouldn’t be protected by Title VII. But that assumption would be incorrect.
One of the early and important Title VII cases involved a woman employed at the accounting firm of Price Waterhouse who wasn’t promoted, at least in part, for her lack of “femininity” in the workplace. Her supervisors advised her to “take a course at charm school” and “walk more femininely, wear makeup, have her hair styled, and wear jewelry.” Though deciding the issue on simple gender discrimination grounds, the U.S. Supreme Court ruled that “in forbidding employers to discriminate against individuals based upon their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.”
Federal and lower courts have begun their analysis of sex discrimination claims by transgendered individuals by noting that their situation isn’t the same as homosexuality. Courts recognize the fact that not all homosexual men are stereotypically feminine and not all heterosexual men are stereotypically masculine. Those courts make clear that being transgendered is based on nonconformity with societal gender norms instead of sexual orientation.
In considering claims of employees who were discriminated against based on their gender- nonconforming actions or traits, courts have repeatedly ruled that Title VII forbids discrimination because a person fails to act in the way expected of a man or a woman. Those courts have found that just as a woman can ground an action on a claim that men discriminated against her because she didn’t meet the stereotyped expectations of femininity, a man can ground a claim on evidence that other men discriminated against him because he didn’t meet the stereotyped expectations of masculinity.
While the cases prohibiting discrimination against unusually masculine females or unusually effeminate males have received uniform application, the leap to applying that concept to those purposely attempting to dress as another gender — or even changing their gender — has been less uniformly received. While some courts have resisted applying that protection to fully transgendered employees, many courts have willingly adopted that rationale. Some courts have gone so far as to classify gender identity disorder as a disability.
Some States Provide Gender Identity Protection
As Congress continues to debate whether gender identity should be a protected class, some states have moved forward, enacting laws to protect the transgender. According to the Human Rights Campaign, 16 states (California, Colorado, Connecticut, Hawaii, Illinois, Iowa, Maine, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington) and the District of Columbia currently have policies that protect against both sexual orientation and gender identity discrimination in employment in the public and private sector.
An additional six states — Delaware, Maryland, Massachusetts, New Hampshire, New York, and Wisconsin — have state laws that protect against discrimination based on sexual orientation but not gender identity. In Florida, Massachusetts, New Hampshire, and New York courts have ruled that gender identity is protected under state anti-discrimination laws even though it isn’t specifically named.
Five states have an executive order, administrative order, or personnel regulation prohibiting discrimination against public employees based on sexual orientation and gender identity: Indiana, Kansas, Kentucky, Michigan, and Pennsylvania. Delaware, Maryland, Massachusetts, and New York prohibit discrimination based on gender identity in public employment only. An additional five states prohibit discrimination against public employees based on sexual orientation only: Alaska, Arizona, Missouri, Montana and Ohio. Ohio previously included gender identity, but Governor John Kasich let this executive order expire in January 2011.
In Other States, the Debate Goes On
Several states are currently considering gender identity protections:
- In Kansas, lawmakers are deliberating over Senate Bill (SB) 53, which would include sexual orientation and gender identity in the Kansas Act Against Discrimination. The bill prohibits employment and public accommodation discrimination on the basis of sexual orientation or gender identity. It was introduced on January 25 and has been referred to the Committee on Federal and State Affairs.
- A controversial bill in the Maine Legislature proposes an amendment to Maine law that would make it lawful for any public or private entity to restrict the use of public bathrooms to the one corresponding to an individual’s designated biological sex.
- On May 19, Connecticut’s House passed a bill that would amend the state’s antidiscrimination laws to make it illegal to discriminate on the basis of gender identity or expression,” which includes a person’s gender-related identity, appearance, or behavior, regardless of whether it differs from the gender-related identity, appearance, or behavior traditionally associated with the individual’s physiology or assigned sex at birth.
- On May 2, Hawaii Governor Neil Abercrombie signed into law Act 34, protecting employees against employment discrimination based on gender identity or expression.
Other states have considered and rejected bills that would protect gender identity:
- In Texas, House Bill (HB) 665 would prevent employers from discriminating based on sexual orientation, gender identity, or gender expression. Similar legislation ahs be filed in the last two sessions of the legislature.
- Idaho lawmakers rejected proposed amendment that would have broadened the Idaho Human Rights Act to include protection for sexual orientation and gender identity
- In Louisiana, proposed SB 211 would have prohibited state agencies from discriminating in employment or in the provision of services to the agencies based on a person’s sexual orientation, gender identity or expression, or political affiliation. The bill, which died in committee on June 9, defined “sexual orientation” as “being or perceived as being heterosexual, homosexual, or bisexual.” It defined “gender identity or expressions” as “having or being perceived as having a gender-related self-identity, appearance, or behavior, whether or not associated with a person’s assigned sex at birth, and the expression thereof.”
- In Wyoming, HB 82 would have amended the Wyoming Fair Employment Practices Act (WFEPA) to include retaliation protections much like those in federal discrimination laws. The House Judiciary Committee approved the measure on a 7-2 vote, but the bill died in the full House on a tie vote. The House Judiciary Committee also approved HB 142, which would have modified a variety of state laws, including the WFEPA, to prohibit discrimination on the basis of sexual orientation or gender identity. The House defeated the bill on a 25-33 vote.
Find out what the law is in your state with 50 Employment Laws in 50 States, 2011 Edition.
No Matter What State You Are In . . .
To be safe (and fair), you should treat employment decisions relating to transgender issues just as you would treat any other employment decision: If the conduct for which you’re considering disciplining, terminating, or otherwise making any employment decision would be acceptable if undertaken by the opposite gender, you shouldn’t take action against the employee.
You also should (1) recognize that reference to gender identity and expression issues should be incorporated into your legal issues and nondiscrimination training programs, (2) educate decisionmakers, supervisors, and staff on the basics of gender identity and expression discrimination issues, and (3) proceed with caution and consult best practices resources and counsel about how to handle the issue if a potential gender identity- or expression-related discrimination issue arises in your workplace.
I agree that all people have the right to a working environment free from discrimination or harassment and also have a right to go about daily life free from discrimination or harassment. However, I think we’ve gone too far because in too many instances people are robbed of their right to choose not to associate with or be around situations or people they personally find offensive.