Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘gender identity’

Supreme Court poised to drastically reverse LGBTQ equality

Tuesday, November 27th, 2018

There are now six different cases implicating LGBTQ rights sitting before the Supreme Court. While the conservative-majority Court has not yet agreed to hear any of them, a circuit split between two of the cases and the fact that President Trump’s transgender military ban is at the heart of another strongly suggest at least one of them will advance to oral arguments.

The cases span a variety of different issues, including employment, education, military service, and public discrimination. At the heart at most of them is a question about whether discrimination against LGBTQ people counts as discrimination on the basis of “sex.” If the Court rules against queer people in just one of them, it could set a precedent that hinders LGBTQ equality across all of the different issues.

Such a decision would be the largest blow to queer rights since the Court upheld sodomy laws 32 years ago.

Employment discrimination

Two of the cases before the Court address the question of whether it’s legal to fire someone for being gay. Two different federal appellate courts arrived at different conclusions, increasing the likelihood that the Supreme Court will hear the cases to resolve the dispute.

In Bostock v. Clayton County, Georgia, a gay man argued that he was fired because of his sexual orientation. The U.S. Court of Appeals for the Eleventh Circuit dismissed Gerald Lynn Bostock’s case over a 1979 precedent, even though several Supreme Court cases since then have undermined that ruling, including a case that recognized “sex stereotyping” as a form of sex discrimination as well as a case that recognized same-sex sexual harassment as sex discrimination. The Eleventh Circuit insisted that “sexual orientation” enjoys no recognition under Title VII’s employment protections on the basis of sex.

Meanwhile, this past February, the U.S. Court of Appeals for the Second Circuit arrived at the exact opposite conclusion in Zarda v. Altitude Express. In that case, the appellate court found that skydiving instructor Donald Zarda, now deceased, was illegally fired for being gay under Title VII. The Trump administration had argued otherwise.

With this split in how to interpret federal law, it seems highly likely that the Supreme Court will want to resolve the conflict. While there are several compelling arguments that discrimination on the basis of sexual orientation inherently requires making determinations on the basis of sex, it’s not clear that there are five justices who will agree.

While they’re at it, the Court may also consider R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, a similar case about whether Title VII’s “sex” protections include discrimination on the basis of gender identity. The U.S. Court of Appeals for the Sixth Circuit agreed this past March that a Michigan funeral home violated the law when it fired employee Aimee Stephens for being transgender.

The Trump administration recently filed a brief in this case arguing that the Supreme Court should overturn the Sixth Circuit’s decision and rule that it’s legal to fire someone for being trans. But the administration also argued that the Court should consider Zarda or Bostock first — in other words, that it should resolve the question of whether sexual orientation is protected before it takes up gender identity.

In any of these cases, a ruling narrowly defining “sex” could set back employment rights for the entire LGBTQ community.

Trans military ban

On Friday, the Trump administration asked the Supreme Court to take the reins on the four different court battles over President Trump’s ban on transgender people serving in the military. The administration has lost in all of these different cases, including before two appellate courts, but it is now asking the Court to combine them all into the case Trump v. Karnoski.

The request is an unusual step, one that attempts to skip over the standard appeals process. LGBTQ groups chided the administration for being so desperate to discriminate that they’re willing to flout judicial norms and procedures. Nevertheless, given the Court’s willingness to cater to executive power in the Muslim ban cases, it might similarly be charitable to Trump’s claim that banning transgender people somehow improves military readiness, even though there’s no evidence to support that claim.

Another bakery

Just months after the Supreme Court granted a one-off victory to an anti-gay baker from Colorado, another bakery from Oregon is again asking the Court to grant it special permission to refuse service to same-sex couples. The details of Klein v. Oregon Bureau of Labor and Industries are almost identical to the Masterpiece Cakeshop case.

As ThinkProgress previously explained, Aaron and Melissa Klein — owners of Sweet Cakes by Melissa — are asking for even more from the Court than Jack Phillips did last year. They argue that business owners have a right to discriminate based on their religious beliefs — against any group, not just on the basis of sexual orientation. A ruling along those lines would not only greatly undermine LGBTQ protections, but nondiscrimination protections for all vulnerable groups.

Transgender students

While the Alliance Defending Freedom (ADF) is not defending the Kleins as it did Phillips last year, the anti-LGBTQ hate group is still heavily involved in this year’s round of cases. In addition to defending the funeral home in the transgender employment case, ADF is also representing a group of families challenging a Pennsylvania school’s inclusive policies.

In Doe v. Boyertown Area School District, ADF contends that allowing transgender students to use restrooms and locker rooms consistent with their gender identity somehow violates the privacy of other students. As such, they’re asking for a mandate that schools segregate trans students to single-use restrooms. Like in the employment cases with Title VII, ADF is also asking the Court to rule that Title IX’s sex protections don’t extend to transgender students.

If the Supreme Court were to take all of these cases and the conservative majority were to prevail in them all, 2019 could look radically different for LGBTQ people. Nationwide, it’d become legal to fire them for who they are, to discriminate against them in schools, and to discriminate against them in public spaces — and several thousand transgender service members would lose their jobs.

For now, the Court is delaying making any decisions.

This article was originally published at ThinkProgress on November 27, 2018. Reprinted with permission.

About the Author: Zack Ford is the LGBTQ Editor at ThinkProgress.org, where he has covered issues related to marriage equality, transgender rights, education, and “religious freedom,” in additional to daily political news.

Transgender guidance disappears from Office of Personnel Management website

Friday, November 23rd, 2018

Under President Obama, the Office of Personnel Management (OPM), which oversees all federal employees, issued detailed guidance protecting transgender people in the workforce. As of Friday, that guidance has disappeared and been replaced by generic language with no content specific to transgender people.

The previous “Gender Identity Guidance” page, which was still live as of earlier this week, laid out definitions for terms related to transgender identities, and outlined specific expectations for respecting transgender employees. These included ensuring that trans workers could dress according to their gender identity, that they were called by their preferred names and pronouns, and that they were allowed to use restrooms and locker rooms consistent with their gender identity.

“Transitioning employees should not be required to have undergone or to provide proof of any particular medical procedure (including gender reassignment surgery) in order to have access to facilities designated for use by a particular gender,” the guidance stated. “Under no circumstances may an agency require an employee to use facilities that are unsanitary, potentially unsafe for the employee, located at an unreasonable distance from the employee’s work station, or that are inconsistent with the employee’s gender identity.”

On the new site, that language and any reference to transgender people is now gone, although the page does still state that discrimination on the basis of gender identity is prohibited — consistent with an executive order President Obama issued that is still in effect.

Gone, however, are the detailed definitions for the terms “gender identity,” “transgender,” “gender non-conforming,” and “transition.” Specific references to confidentiality related to transitioning have been replaced with generic language about medical privacy. The page’s dress code language no longer provides reassurances that employees will be allowed to dress consistent with their gender identity.

Before:

After:

Two vital sections have been erased without a trace: both the section on respecting employees’ names and pronouns and the section addressing access to “sanitary and related facilities.” There is no longer any guidance whatsoever to ensure that trans people are respected according to their gender identity in the federal government. Should a manager have questions about how to respond when an employee comes out as transgender, they will find no answers on OPM’s page.

The changes to the page came without any announcement or notice.

From the beginning of the Trump administration, federal agencies have increasingly erased content related to LGBTQ people or gender more broadly. The day after President Trump’s inauguration, the White House website discarded its page dedicated to LGBTQ rights and the Labor Department also removed a report on LGBTQ workers’ rights.

A few months later, questions that would help identify LGBTQ people in data collection were erased from two important national surveys. This past July, the Department of Health and Human Services removed language on sex discrimination from its website, and in October, it scrapped “gender” from its civil rights page. Recent reports have even suggested that the administration is trying to remove references to “gender” in United Nations documents.

While these unannounced website changes have been somewhat inconspicuous, the administration’s opposition to trans rights has been anything but subtle. A memo leaked in October laid out the administration’s plans to completely erase trans people from any recognition under any agency of the federal government. People would be defined solely by the sex they were assigned at birth, subject to genetic testing.

This article was originally published at ThinkProgress on November 23, 2018. Reprinted with permission.

About the Author: Zack Ford is the LGBTQ Editor at ThinkProgress.org, where he has covered issues related to marriage equality, transgender rights, education, and “religious freedom,” in additional to daily political news. In 2014, The Advocate named Zack one of its “40 under 40” in LGBT media, describing him as “one of the most influential journalists online.”

New Research Meta-Analysis Makes Compelling Case For Nondiscrimination Protections

Tuesday, May 8th, 2012

Our guest blogger is Crosby Burns, Research Associate for LGBT Progress.

Today the Center for American Progress, the Human Rights Campaign, and the Williams Institute at the UCLA School of Law released a comprehensive database of research documenting the immediate need for federal policies that prohibit discrimination on the basis of sexual orientation and gender identity. This database includes nearly 40 documents totaling 680 pages of research from the ACLU, the Center for American Progress, the Human Rights Campaign, the National Center for Transgender Equality, the National Gay and Lesbian Task ForceFreedom To Work, and the Williams Institute.

The findings of the research contained in this database are consistent and conclusive: LGBT workplace discrimination is a pervasive and persistent problem that requires an immediate solution. Additionally, this research establishes a strong business case for workplace nondiscrimination laws and policies, examines the potential impact of an LGBT nondiscrimination executive order for federal contractors, and highlights strong public and voter support for workplace fairness.

Given these realities, Congress should pass the Employment Non-Discrimination Act and President Obama should sign an executive order requiring federal contractors to have LGBT-inclusive non-discrimination policies. These actions would bring quick relief to the hundreds of thousands of LGBT workers who face employment discrimination in our country today.

Nondiscrimination-Laws-Map

This blog originally appeared in Think Progress on May 7, 2012. Reprinted with permission.

Federal LGBT Employment Rights On The Move

Thursday, October 1st, 2009

Image: Dr. Jillian T. WeissThere is no federal statute prohibiting job discrimination based on sexual orientation or gender identity. A bill is on the horizon to change that, with a very good chance of passage. The Employment Non-Discrimination Act of 2009 (HR3017/S1584), introduced in various forms since 1974, would prohibit job discrimination based on sexual orientation or gender identity. It has 179 House co-sponsors and 40 Senate co-sponsors, and many more expected to support the bill.

Despite the arguments of opponents, the bill’s text is unremarkable in many ways. Similar to Title VII of the Civil Rights Act of 1964, the current job discrimination law, it also contains language to deal with issues specific to LGBT workers. As in Title VII, it covers employers with 15 or more employees and most government offices. It prohibits discharge, refusal to hire, and other discrimination based on “sexual orientation” or “gender identity,” as well as discrimination based on association with gay people.

The terms “sexual orientation” and “gender identity” are clearly defined, despite the concerns of opponents. “Sexual orientation” is defined in the bill as “homosexuality, heterosexuality, or bisexuality.” It’s specifically used in distinction to the more ambiguous term “sexual preference.” Opponents argue it could protect pedophiles, base on the false idea that pedophilia is a “sexual preference.” Since the term “sexual preference” is not used, and the term “sexual orientation” is very clearly defined, that argument is incorrect. Unfortunately, this been used as a fear-mongering tactic.

The term “gender identity” is defined as “gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual’s designated sex at birth.” This refers to the social, psychological and behavior stereotypes of our sex at birth. It protects workers from discrimination or harassment based on conformity with stereotypes of gender. For example, if someone born male expresses their gender in a manner stereotypically considered feminine, whether it be in mannerisms, appearance or, on the extreme end, identification with the opposite sex as a transsexual, they are protected from dismissal or harassment because of this. In other words, gender is removed as a job performance criterion.

Some are concerned that allowing transsexuals to have jobs will cause a burden on employers by requiring them to build separate shower and dressing facilities for transsexuals. However, the Act does not require employers to permit access to shared shower or dressing facilities where nudity is unavoidable. It specifically disavows the idea that construction of additional facilities are required.

Both terms, “sexual orientation” and “gender identity” have been used in many state and local laws since 1975, and are considered by legal experts to be well-understood in the legal context at this point.

Concerns about a “gay quota,” and a flood of lawsuits are equally unfounded. The Act explicitly bans any preferential treatment or quotas. The government may not require collection of statistics on sexual orientation or gender identity. “Disparate impact” lawsuits, often seen in the Title VII context, are not permitted under ENDA. Such claims are based on the allegation that employer actions have indirectly resulted in a reduced number of LGBT employees. Only the direct harm of “disparate treatment” lawsuits would be permitted.

Religious freedom is also addressed in the bill. The Act does not apply to organizations exempt from the religious discrimination provisions of Title VII. In his testimony at the Congressional hearing on September 23, 2009, Acting EEOC Stuart Ishimura stated his belief that this would exempt such religious organizations not only from penalties for discrimination on the basis of religion, as in Title VII, but also from all penalties under ENDA for any discrimination based on sexual orientation or gender identity.

The Act does not apply to members of the Armed Forces, and does not change special rights for veterans. It explicitly states that it will not invalidate other federal, state or local laws.

A hearing was held before the Committee on Labor and Education on September 23, at which many illustrious witnesses testified to the widespread extent of serious harm the current situation has caused for gay, lesbian, bisexual and transgender (LGBT) employees. The bill is expected to be voted on in the House in the next few weeks, where it is expected to pass. It will then go to the Senate, and a vote is expected there before year-end. President Obama has vowed to sign the bill.

About the Author: Dr. Jillian T. Weiss is Associate Professor of Law and Society at Ramapo College of New Jersey, and has consulted with many organizations on issues of transgender workplace diversity, including Boeing, Harvard and New York City.  She may be reached at jweiss@ramapo.edu

Developments in Workplace Protections for LGBT Employees

Monday, September 22nd, 2008

A significant new frontier in the employment discrimination field is finding ways to protect employees who are fired, denied a promotion, or harassed just for being lesbian, gay, bisexual, or transgender (LGBT). Already, 12 states and the District of Columbia prohibit discrimination based on sexual orientation as well as gender identity and expression. (Another eight states have legal protections only for sexual orientation discrimination.) Those laws protect not only lesbian, gay, and bisexual employees, but also transgender employees–those whose internal sense of themselves as male or female (their “gender identity”) and/or the way they express that gender identity through their appearance, clothing, or behavior (their “gender expression”) differs from the anatomical sex they were designated at birth.

As described in Phil Duran’s excellent recent blog post, we may see similar protections enacted in federal law in the near future. LGBT advocacy organizations and others are currently lobbying members of Congress to support a version of the proposed Employment Non-Discrimination Act (ENDA) that would prohibit discrimination based on both sexual orientation and gender identity and expression.

In the meantime, though, courts have been increasingly open to claims brought on behalf of LGBT employees who face discrimination, using what may seem like an unexpected theory: sex discrimination. In 1989 the U.S. Supreme Court held, in a case called Price Waterhouse v. Hopkins, that federal sex discrimination laws protect employees who are discriminated against because of their perceived failure to conform with gender stereotypes–that is, women who are perceived as too masculine, or men who are perceived as too feminine. Price Waterhouse was a case brought by a woman who was denied a promotion at an accounting firm, despite her excellent performance, because her supervisors considered her too “macho.” They suggested that she ought to “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” The Supreme Court held that discrimination based on that kind of gender stereotyping was a form of sex discrimination.

Even though no federal law currently prohibits employment discrimination based on sexual orientation or gender identity and expression, some LGBT employees have been able to successfully use gender-stereotyping arguments to bring sex discrimination claims when they are targeted because of their actual or perceived gender nonconformity. For instance, a sex discrimination claim may be viable when a gay man is harassed because of his co-workers’ perception that he is too feminine or when a lesbian is fired because she is seen as too masculine. Sex discrimination cases brought by lesbian, gay, or bisexual employees can be challenging to win, though, because some courts have expressed concern that the gender-stereotyping theory could be used as a back door means of recognizing what are “really” sexual orientation discrimination claims.  Unfairly, even when an LGBT employee is discriminated against because of gender stereotypes, some courts have denied relief simply because the plaintiff is gay or lesbian or because the discrimination appeared to be additionally motivated by anti-gay animus.

Interestingly, courts have been somewhat more receptive to gender-stereotyping claims brought by transgender employees.  In a groundbreaking decision just issued on September 19, 2008, Schroer v. Billington, a Washington, D.C. federal district court found that a transsexual job applicant had been discriminated against based on “sex.”  She had initially applied for the position–and been offered the job–while presenting as a man, but when she informed the employer of her intention to change her sex to female, the employer withdrew the offer.  The court not only found that gender stereotypes played an unlawful role in her hiring, à la Price Waterhouse, but also held that discrimination because a person changes their sex is “literally” sex discrimination – just as discrimination against those who convert from one religion to another would plainly constitute religious discrimination.  While no other court has yet recognized a sex discrimination claim based on transgender status per se, a number of other decisions have upheld sex discrimination claims brought by transgender employees where the employee can show some evidence that stereotypes played a role in the employee’s negative treatment.

The gender stereotyping theory of sex discrimination can provide valuable protection for lesbian, gay, bisexual, and transgender workers who face discrimination because of their perceived gender nonconformity, although some courts still fixate on the employee’s status as LGBT as a justification for denying an otherwise valid sex discrimination claim. That’s why it’s imperative to pass a fully inclusive version of ENDA: to make it clear to everyone, employers and employees alike, that it’s unlawful to mistreat employees because of traits like sexual orientation or gender identity and expression that have absolutely nothing to do with job performance.

About the Author: Ilona Turner is a staff attorney at the National Center for Lesbian Rights, a national legal organization committed to advancing the civil and human rights of lesbian, gay, bisexual, and transgender people and their families through litigation, public policy advocacy, and public education.  Prior to law school, she was the lobbyist for Equality California, the state’s leading LGBT political organization, where she helped win the passage of groundbreaking legislation that significantly expanded the rights of domestic partners under California law and prohibited discrimination based on gender identity and expression in employment and housing.  She received her J.D. from the University of California, Berkeley.

Sharing Labor Day with Transgender Workers

Tuesday, September 16th, 2008

In 2007, hundreds of gay-rights organizations from across the country signed a statement opposing the first gay-rights bill ever approved by a house of Congress. Why? Because the bill, the Employment Non-Discrimination Act (ENDA), prohibited job discrimination based on sexual orientation, but not discrimination based on gender identity/expression. After the House voted to approve ENDA as written, a House committee held a first-ever hearing on the issue of gender-identity/expression discrimination. It is likely that future ENDA proposals will include both sexual orientation and gender identity/expression as protected characteristics. When that happens, Congress will once again be following the lead that employers from coast to coast have already clearly established in affirming the equal employment rights of their transgender employees.

For purposes of this article, “transgender” is an umbrella term describing people who present to the world a gender identity different from the one they were assigned to at birth. The typical transgender person, in their “mind’s eye,” firmly and sincerely sees their gender in a way that does not match their anatomy; this divergence can appear at a very early age and is not usually thought of as a choice any more than is one’s sexual orientation. Transgender people may or may not attempt to change their bodies (“transition”) to align with this gender expression (those who do are often referred to as “transsexuals”). While most transgender people use the pronouns associated with the gender they present, some avoid the use of traditional, gendered pronouns altogether.

A person who comes out as transgender and changes their gender expression often puts him- or herself at significant risk for rejection, discrimination, harassment, or even violence. There are countless transgender people who, having transitioned later in life, have difficulty finding a fulfilling job even though they have advanced degrees and years of relevant experience – somehow, exchanging pants for a skirt magically negates an MBA and professional accomplishment.

The American workplace is slowly but inexorably recognizing that transgender employees have much to offer, and deserve fair and equitable treatment. Increasingly, labor advocates are leading the way by persuading American employers to amend existing non-discrimination and anti-harassment policies to extend their protection to transgender workers. According to the Human Rights Campaign, 153 of the Fortune 500 companies have taken such a step. Clearly, there is progress yet to be made – and labor advocates are likely to be successful.

Beyond basic non-discrimination/anti-harassment policies, forward-thinking employers are also contemplating issues related to employment benefits. Most fundamentally, does an employer’s health plan, assuming there is one, cover services related to gender transition? These usually fall into three basic categories: counseling, hormones, and surgery. The vast majority of plans that cover mental-health treatment don’t draw a line around gender-identity counseling and attempt to exclude it, nor should they. This is important, because counseling is often the initial step that opens the next doors in the transition process. Some employer plans contain gender-related provisions that specifically exclude surgery, while other go further and also exclude hormones as well. More and more, however, health plans (and related plans, such as short-term disability policies) are eliminating these restrictions as employers realize that covering gender-related care significantly benefits affected employees while adding relatively little to their insurance premium. In June 2008, the American Medical Association issued a statement calling exclusions of gender-related care a form of discrimination. Workplace advocates will continue to press for change in this area, which, in turn, could positively affect the future conversation about universal health care and its scope.

Additional complexities may arise regarding a transgender employee’s partner, and their access to dependent health benefits. For example, if a married male employee transitions to female and adopts a female name, but does not divorce, does the spouse remain the employee’s wife, and therefore the employee’s dependent? Or does the spouse, in effect, become a domestic partner? (Hint: pick door number one.) This matters, because if the dependent is seen as a spouse, the benefits are a tax-free fringe benefit. On the other hand, if the dependent is characterized as a domestic partner, the benefits incur tax liability for the employee and deductions by the employer. On one level, this distinction would be immaterial if not for the tax difference, and here, labor and employers are speaking out together in favor of federal legislation that would treat spousal and partner benefits equally for tax purposes.

Taking back Labor Day means, among other things, sharing Labor Day with transgender workers, and committing oneself to learning about the issues they face, educating others, and advocating for workplace fairness for all.

About the Author: Phil Duran is the Staff Attorney at OutFront Minnesota, the state’s leading advocacy, direct service, and public policy agency for gay, lesbian, bisexual, and transgender (GLBT) Minnesotans and their allies. His work at OutFront Minnesota focuses on legal information, referral, and education; state legislative research and analysis; state administrative agency and local government public policy; school-related issues; and direct representation in selected public-assistance and human rights matters. Additionally, Duran serves on the board of the Minnesota Lavender Bar Association, which raises GLBT issues within the legal profession in Minnesota. He also is a past member of the executive council of the Minnesota State Bar Association (MSBA), and served on the steering committee of the MSBA’s Diversity in the Legal Profession Task Force. He currently serves on the MSBA Diversity Committee, MSBA Task Force on the Rights of Unmarried Couples, and Minnesota Supreme Court’s Gender Fairness Implementation Committee. Phil is a graduate of the University of Minnesota Law School.

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