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Posts Tagged ‘transgender workers’

Texas has a new plan to discriminate against LGBT people

Monday, April 17th, 2017

Texas’ anti-transgender bill has seemingly stalled, but inspired by North Carolina, Republican state lawmakers have a new plan to expand discrimination against LGBT people.

Last month, Texas seemed on track to follow in the footsteps of North Carolina’s HB2 and pass its own bill, SB6, mandating anti-transgender discrimination across the entire state. Lt. Gov. Dan Patrick (R) launched a massive misinformation campaign to scare up support of the bathroom bill, and the Senate passed it, terrifying the trans kids and families who testified against it. The bill was blocked in the House by various House Republican leaders who indicated they believed it was unnecessary.

But now, those House Republicans have introduced a new bill that looks awfully familiar.

Unlike the various complicated aspects of SB6, HB 2899 does only one thing: ban cities from passing nondiscrimination protections. To that end, it also would nullify any municipal nondiscrimination ordinances already in place.

This approach strongly resembles the “compromise” bill North Carolina lawmakers recently passed to replace HB2, which banned cities and school districts from passing any ordinance “regulating private employment practices or regulating public accommodations” until December 1, 2020.

These both, in turn, follow the example set by Tennessee and Arkansas—which have “preemption” laws that prohibit cities from protecting any class from discrimination that isn’t already protected under state law, which amounts to a de facto ban on LGBT protections. North Carolina’s law sloppily allows protections that already exist to remain in place, but Texas takes the approach a step further. By banning and nullifying all nondiscrimination ordinances, HB 2899 would prohibit cities from doing anything to address discrimination on the local level.

HB 2899 would effectively be a statewide license to discriminate against LGBT people. By regulating schools, it would also have severe consequences for LGBT students, who could not be protected from bullying. Trans students could not be guaranteed the right to use the restrooms and other facilities that match their gender identity.

Given the NCAA and NBA were convinced to abandon their boycotts of North Carolina over its replacement law, it seems likely that Texas lawmakers expect their new plan will similarly be safer from economic backlash. This is despite the fact that many cities and states are maintaining their bans on publicly-funded travel to North Carolina.

House State Affairs Committee Chairman Byron Cook (R), who blocked the Senate anti-trans bill, called HB 2899 “the right kind of balance” between “privacy”—i.e. discrimination against transgender people—and avoiding “a chilling effect on business.”

Cook’s committee will consider the new bill next Wednesday.

This article was originally posted at Thinkprogress.org on April 14, 2017. Reprinted with permission.

Zack Ford is the LGBT Editor at ThinkProgress.org. Gay, Atheist, Pianist, Unapologetic “Social Justice Warrior.” Contact him at zford@thinkprogress.org. Follow him on Twitter at @ZackFord.

Trump revokes executive order, weakens protections for LGBT workers

Wednesday, March 29th, 2017

An executive order President Trump signed Monday rescinded an executive order President Obama implemented that would have required companies that contract with the federal government to provide documentation about their compliance with various federal laws. Some have argued that this will make it harder to enforce the LGBT protections President Obama implemented for employees of federal contractors—as well as many other protections those workers enjoyed.

Trump rescinded the Fair Pay and Safe Workplaces order, also known as Executive Order 13673, that President Obama issued in 2014. That order required companies wishing to contract with the federal government to show that they’ve complied with various federal laws and other executive orders. Notably, Obama issued that order in tandem with Executive Order 13672, which prohibited contractors from discriminating on the basis of sexual orientation or gender identity.

Executive Order 13673 was enjoined by a federal judge in Texas back in October, but had it been implemented, it would have improved accountability for businesses that contract with the federal government. Enforcement of 13672, the LGBT protections, does not require this order, but would have been stronger with it. Whatever its fate in court may have been, it’s now gone forever.

LGBT people are particularly vulnerable to discrimination, even with 13672 still in place. Obama’s LGBT executive order amended previous presidential orders that also protected the employees of contractors on the basis of race, color, religion, sex, national origin, disability, and age, but all of those other categories are also afforded protection under various federal laws (the Civil Rights Act, the Americans with Disabilities Act, and the Age Discrimination in Employment Act). Sexual orientation and gender identity are the only identity categories without explicit nondiscrimination protections under federal law, and fewer than half the states offer LGBT protections at the state level. That means Obama’s executive order is the only legal force protecting over a million workers.

Camilla Taylor, senior counsel at Lambda Legal, was the first to raise concerns that this change would impact the LGBT community. As she explained to Keen News Service, “It’s sending a message to these companies…that the federal government simply doesn’t care whether or not they violate the law.”

National Center for Lesbian Rights Executive Director Kate Kendell also said in a statement, “President Trump’s quiet take-down yesterday of federal safeguards against employment discrimination for millions of LGBT Americans is yet another example of why our elected officials, advocates, and our community must remain vigilant and continue working together to stop this administration’s regressive and harmful policies.”

When a draft of a “religious freedom” executive order that would have licensed discrimination against LGBT people was circulating, the White House tried to stir up some positive press by promising that it would “leave in place” Obama’s 2014 order protecting LGBT workers.

“President Trump continues to be respectful and supportive of LGBTQ rights,” the statement read. The New York Times’ Jeremy Peters fell over himself to praise the statement for using “stronger language than any Republican president has before in favor of equal legal protections for gay lesbian, bisexual, and transgender people.”

It’s not a surprise, however, that Trump is walking back other executive orders that weaken the LGBT protections. Trump promised to undo all of Obama’s executive orders.

That “religious freedom” executive order hasn’t gone away either. A month after the draft leaked and the White House assured LGBT people it wasn’t signing it at that time, White House Press Secretary Sean Spicer told The Heritage Foundation’s Daily Signal that it was still coming. “I think we’ve discussed executive orders in the past, and for the most part we’re not going to get into discussing what may or may not come until we’re ready to announce it,” he said at the time. “So I’m sure as we move forward we’ll have something.”

This article was originally posted at Thinkprogress.org on March 29, 2017. Reprinted with permission.

Zack Ford is the LGBT Editor at ThinkProgress.org. Gay, Atheist, Pianist, Unapologetic “Social Justice Warrior.” Contact him at zford@thinkprogress.org. Follow him on Twitter at @ZackFord.

Federal judge concludes transgender worker can sue for sex discrimination

Wednesday, December 21st, 2016

A federal court in Kentucky is allowing a transgender workplace discrimination suit to proceed, recognizing that mistreatment in regards to gender identity constitutes illegal discrimination on the basis of sex.

Plaintiff Mykel Mickens sued General Electric Appliances (GE) for harassment and disparate treatment in the workplace. He was not permitted to use the men’s restroom, so he had to use a facility much farther away from his work station, and he was then disciplined for how long his breaks were to accommodate that journey. Mickens also had a conflict with an employee, but though GE addressed a complaint one of his white, female colleagues had with that employee, his complaint went unaddressed. He says that when he disclosed that he was transgender to his supervisor, he was singled out and reprimanded for conduct no one else was reprimanded for, and when he reported the harassment, GE said there was nothing it could do.

Federal Chief Judge Joseph McKinley, a Clinton appointee, concluded that there was significant evidence to bring a discrimination case for race and gender discrimination. He agreed there is precedent that punishing an employee for failing to conform to gender stereotypes can qualify as gender discrimination under Title VII. “Significantly,” he wrote, “Plaintiff alleges that GE both permitted continued discrimination and harassment against him and subsequently fired him because he did not conform to the gender stereotype of what someone who was born female [sic] should look and act like.”

McKinley noted that several court cases, including G.G. v. Glouchester County School Board?—?currently before the Supreme Court?—?could impact future trans discrimination suits. In the meantime, however, “what is clear is that the Plaintiff’s complaint sufficiently alleges facts to support discrimination or disparate treatment claims based upon race and gender non-conformity or sex stereotyping.”

GE did not comment directly on the suit but reaffirmed in a statement its commitment to “creating, managing and valuing diversity in our workforce” and “ensuring that our workplace is free from harassment.”

McKinley’s ruling isn’t an automatic victory for Mickens, but it is a sign of progress for those seeking the justice system’s protection for discrimination against transgender people.

Just last week, a transgender man in Louisiana won his discrimination complaint against his employer through arbitration. Tristan Broussard involuntarily resigned from the financial services company he worked for when he was intolerably forced to “act and dress only as a female.” He was awarded more than a year’s salary as well as additional damages for emotional distress.

The Obama administration has extended protections to transgender people in various ways, including advocating for their civil rights in employment discrimination cases. Many advocates worry the Trump administration will roll back these protections and abandon support for these plaintiffs, if not take an antagonistic position against their discrimination claims.

A recent massive survey of transgender people found that 16 percent had lost a job due to being transgender, and 27 percent had either been fired, denied a promotion, or not been hired due to being transgender.

This article was originally posted at Thinkprogress.org on December 13, 2016. Reprinted with permission.

Zack Ford is the LGBT Editor at ThinkProgress.org. Gay, Atheist, Pianist, Unapologetic “Social Justice Warrior.” Contact him at zford@thinkprogress.org. Follow him on Twitter at @ZackFord.

First-Ever Trans Senate Witness: ‘To Be Unemployed Is Very Devastating, Demeaning, And Demoralizing’

Wednesday, June 13th, 2012

Zack FordThis morning, the Senate Health, Education, Labor & Pensions Committee held a hearing on the Employment Non-Discrimination Act (ENDA), which would extend employment protections based on sexual orientation and gender identity. For the first time in the Senate’s history, a transgender witness testified on behalf of the bill. Kylar Broadus, founder of the Trans People of Color Coalition, discussed his experiences coming out trans, including mistreatment by police, workplace harassment, and employment discrimination:

BROADUS: When I used female restrooms, police would accost me. I would have to strip and then they still told me, “Sir, get out of the bathroom,” when I would use the ladies’ room. It’s just humiliating and dehumanizing to say the least.[…]

Prior also to the physical transition, I was working in the financial industry, which is actually a high-paying industry. But again, when I shifted or transitioned, that’s when all the trouble began. And it’s still emotional to me, because it impacted me emotionally — I suffer from post-traumatic stress as a result of the harassment that I encountered in the workplace from my employer.[…]

To be unemployed is very devastating, also demeaning and demoralizing. And then the recovery time — there is no limit on it. I still have not financially recovered. I’m underemployed. When I do talks, I tell people I’m not employable. I was lucky to be where I am and I’m happy to be where I am, but I’m one of the fortunate people that is employed. There are many more people like me that are not employed as a result of just being who they are — being good workers, but being transgender or transsexual. So I think it’s extremely important that this bill be passed to protect workers like me.

Sen. Tom Harkin (D-IA) expressed pride in the committee for inviting Broadus to speak. Watch his full testimony:

No opponents of the bill attended the hearing, so the panel and questions were mostly positive. One witness, Craig Parshall of the National Religious Broadcasters Association, testified against ENDA, arguing that religious businesses should be able to discriminate against gay and trans employees according to their beliefs. Largely the committee ignored Parshall during the questioning, and when he did express concern, Samuel Bagenstos of the University of Michigan Law School countered the technicalities of his claims, pointing out that ENDA actually has broad religious exemptions.

ENDA has been stalled in Congress for decades. Though Republican control of the House may prevent its advance yet again in 2012, today’s Senate hearing was nonetheless historic. The fact that most of the discussion at today’s hearing was supportive and non-confrontational demonstrates how significantly overdue these employment protections are.

This Blog originally appeared in Think Progress on June 12, 2012. Reprinted with Permission.

About the Author: Zack Ford is an LGBT researcher/blogger for ThinkProgress.org at the Center for American Progress Action Fund. Prior to joining ThinkProgress, Zack blogged for two years at ZackFordBlogs.com with occasional cross-posts at Pam’s House Blend. He also co-hosts a popular LGBT-issues podcast called Queer and Queerer with activist and performance artist Peterson Toscano. Zack has a bachelor’s in Music Education from Ithaca College, where we served as student body president, a Master’s in Higher Education Student Affairs from Iowa State University, and also helped found the Central Pennsylvania LGBT Aging Network. Zack holds a B.M. in music education from Ithaca College and an M.Ed. in higher education (student affairs) from Iowa State University, but he’s originally (and proudly) from rural central Pennsylvania.

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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