NEWS

Transmissions: The rules have changed

by Gwendolyn Ann Smith

Published 05/03/2012

If you happen to be transgender, then you have a reason to celebrate:
the federal Equal Employment Opportunity Commission recently ruled
that an employer who discriminates against a transgender job applicant
or employee because of the person's gender identity is practicing sex
discrimination under Title VII of the Civil Rights Act of 1964. This,
in a word, is huge.

Let me give a bit of background. The 1964 Civil Rights Act was
initially written to stop discrimination against women and African
Americans in this county. Specifically, it halted racial segregation
in public accommodations, schools, and employment, while also putting
an end to unequal requirements to vote between the races. It was a
difficult bill to pass, and Southern bloc senators, led by South
Carolina's Strom Thurmond, held a 54-day filibuster.

Title VII from the act prohibits discrimination on the basis of race,
color, religion, sex, or national origin, as well as against any
individual because of their association with another individual of a
particular race, color, religion, sex, or national origin. It also
prohibits discrimination against people in an interracial marriage.

Over the years since its passage, some of these classes have been
expanded or interpreted in ways to fit the times. In the 1970s, for
example, sexual harassment was determined to be included, and bills in
1967, 1978, and 1990 added pregnancy, age, and disability to the
covered protected classes under Title VII.

I should also add that it was in 1974 that the first attempt at adding
"sexual orientation" to the Civil Rights Act was attempted. It failed.
In 1994, a new bill came out, focusing specifically on employment
rights. This bill, the Employment Non-Discrimination Act, has been
going in and out of Congress ever since, but has yet to reach the
president's desk.

ENDA has been a hot button issue since 1994. It initially lacked
transgender inclusion, then, later, in what sounds more like Lucy Van
Pelt holding the football for Charlie Brown in the Peanuts comic:
transgender people would be included, or were promised to be, only to
be dropped from the bill when it was considered politically expedient.

Right now ENDA is stalled in the House of Representatives. Congress is
deadlocked on practically every bill that reaches the floor, and a
potentially controversial bill like this is simply not going to fly
during an election year. President Barack Obama, who did pledge to
sign ENDA if it does reach his desk, has nevertheless decided not to
sign an executive order that would have banned discrimination against
gay, lesbian, bisexual and transgender individuals who worked with or
aspired to work with federal contractors.

Yet now, in the midst of all the doom-and-gloom about Obama not
signing the executive order, with an ENDA that is clearly not going to
pass in the short term regardless of if it is inclusive of transgender
individuals, we see this ray of hope from the EEOC. No, not a simple
ray of hope: more like a 2,000,000,000 candlepower searchlight.

The ruling was a simple one: a transgender woman, Mia Macy, applied to
work with the Department of Alcohol, Tobacco, Firearms, and
Explosives. After a background check laid bare the details of her
transition, she was informed that the position was "no longer
available." The ATF later hired another, non-transgender person for
the job.

This is not the first ruling that works in our favor: the 1989 Price
Waterhouse v. Hopkins added gender discrimination to the definition of
"Sex" under Title VII. It also barred "sex stereotyping," the
requirement that employees match common stereotypes of their gender,
such as women wearing skirts and heels to work. Price Waterhouse has
been used in many cases for transgender people – but the Macy case
comes with a greater visibility thanks in large part to EEOC's
decision. Further, while EEOC has previously ruled to the contrary,
the commission has essentially overturned those decisions with the
Macy ruling.

The decision in Macy v. Bureau of Alcohol, Tobacco, Firearms and
Explosives may finally turn the tide from Ulane v. Eastern Airlines in
1980. That case – a transsexual pilot who was terminated due to her
transition – was also tried based on the Civil Rights Act of 1964. She
won, only to have the case overturned on appeal in 1985.

This, coupled with other, similar cases, builds a growing library of
case law for transgender workplace protections under Title VII of the
Civil Rights Act of 1964 as well as the equal protection clause of the
14th Amendment of the U.S. Constitution. These, in turn, will likely
lead to similar victories, and even more case law, largely cementing
transgender protections under Title VII.

It is, nevertheless, not perfect. It is just as likely that a later
EEOC decision could make another 180-degree turn, perhaps under a
future administration hostile to LGBTs. Or something else could come
down the line, akin to recent attempts to allow religious exemptions
for employers and others to legally discriminate. In short, this does
not protect people as well as the passage of a fully inclusive ENDA
would.

That said, this is a moment to celebrate. It is another step forward
toward preserving the rights of Americans regardless of their gender
identity or expression. This is a decision beyond federal employees
and federal contractors, and can affect us all. It can indeed lead to
a sea change in policies in companies all across the United States,
and the ability to challenge those who refuse to provide equal rights
to their transgender employees or applicants.

It is good news for all of us.

--

Gwen Smith wants to thank the Transgender Law Center for its actions
in the Macy case. You can find her online at www.gwensmith.com.

Copyright © 2012, Bay Area Reporter, a division of Benro Enterprises,
Inc. All Rights Reserved.

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