Tag Archives: gender identity

Senate May Finally Pass ENDA

prideflagToday, the Senate is expected to take up the Employment Nondiscrimination Act, known informally as ENDA. This bill would outlaw workplace discrimination on the basis of sexual orientation and gender identity, by adding those protected traits to Title VII.

Wikipedia tells us that the first Congressional effort to prohibit job discrimination against gay men and lesbians happened in 1974; In many Congressional sessions since, some version of ENDA has been introduced and gone nowhere. The House of Representatives managed to pass a version of the law in 2007, but the cost of passage was high for some: The version that finally passed had no protections based on gender identity. And no version of ENDA has ever passed the Senate.

This week, vote counters believe that will all change. According to New York Times reporting on the Senate vote, all 55 democratic senators are expected to vote for the bill, four more Republicans are on board, and only one more vote is required to invoke cloture (end the debate) and hold an up-or-down vote. When you consider that one of the official undecideds is Rob Portman, who announced his support for gay marriage because his son is gay, chances for passage look pretty good. (And in the nontraditional marriage department, Cindy McCain apparently sent her husband, Senator John McCain, a postcard urging him to vote for the bill; this prompted a strained formal response from the Senator’s office that he “enjoys and appreciates having discussions on the important issues of the day with all the members of his family.”)

What will happen in the House is anybody’s guess. But there are signs of trouble for opponents of the bill, who are having to reach deep into their bag of tricks to articulate reasons to oppose the law. Members of Congress told the Times that they are having to respond to arguments that the law would unfairly force Christian bookstores to hire drag performers and require schools to allow male teachers to wear dresses in the classroom. (A brief aside: What kid would not love this?) When the counterarguments reach this level, you know momentum in favor of the bill has reached critical mass.

 

EEOC: Sex Discrimination Includes Gender Identity and Transgender Status

In a landmark decision, the Equal Employment Opportunity Commission has ruled that Title VII’s prohibition on sex discrimination is broad enough to encompass discrimination based on gender identity and transgender status. The Commission held that Mia Macy, the complainant, was entitled to have her discrimination claims investigated by the federal agency that denied her a job, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (still referred to as the ATF, despite that final E).

According to the EEOC’s decision, Macy was living as a man and working as a police detective in Phoenix, Arizona, when she heard that the ATF has an open position at its crime laboratory in Walnut Creek, California. Macy was planning to move to the San Francisco Bay Area, and contacted the agency about the position in late 2010 or early 2011. Macy was told twice that the job was hers pending completion of a background check. Macy was also told that she would be working as an outside contractor through a company called Aspen of DC. In March of 2011, Macy contacted Aspen and asked them to inform the Walnut Creek lab that she was transitioning from male to female. Five days later, Aspen informed Macy that it had passed the information on. Five days after that, Macy was told that the job was no longer available due to budget cuts.

Finding the timing of the decision questionable, Macy contacted an EEO counselor at the ATF to ask about the situation. (This is how federal agencies handle discrimination issues: The employee or applicant must first complain to the very agency he or she believes committed discrimination. The agency then decides how to handle the charge; typically, the agency investigates and makes a decision, which the employee can appeal to the EEOC.) Macy was then told that the position had actually been filled by someone else who was farther along in the background investigation process. Finding this even more questionable, Macy filed a discrimination complaint with the ATF, stating that she was discriminated against based on sex, sex stereotyping, and gender identity.

The ATF said it would process her claim of sex discrimination, but would defer her claim of gender identity discrimination to a separate procedure, as that claim was not cognizable under Title VII. Macy appealed, claiming that by dividing her complaint up like this, the ATF was effectively denying her basic allegation that she was not hired because she revealed her transgender status. And, the EEOC agreed, finding that claims of discrimination based on gender identity and transgender status are claims of sex discrimination, and fall under Title VII’s prohibitions. The Commission pointed out what previous cases made clear: Discrimination based on sex includes discrimination based on gender — and gender encompasses not just a person’s biological sex at birth, but also “the cultural and social aspects associated with masculinity and femininity.”

The Supreme Court had already held that refusing to promote a woman because she did not act or dress in stereotypically feminine ways was a form of sex discrimination. In Macy’s case, the Commission held that discrimination based on gender identity or gender nonconformity was, inescapably, a form of gender discrimination: The employer is making a decision based on perceptions of how a person who is “male” or “female” should look, dress, and act. In an interesting comparison, the EEOC pointed out that Title VII’s prohibition on religious discrimination would protect an employee whose employer fired her because she converted from one religion to another. Even if the employer claimed to be biased only against “converts,” this would still constitute religious discrimination — and it would not create a “new” protected class.┬áThe Commission sent the case back to the ATF for proper processing as a cognizable complaint.

As the Commission’s decision notes, other courts have reached similar conclusions, so in some ways this case is merely the next step in that evolution of the law. At the same time, this is a huge development — and a huge victory for the LGBT community. The EEOC is the enforcer of the nation’s civil rights, and its decisions are tremendously influential. What makes this case even more interesting is that the sex stereotyping claim is potentially quite strong (I say potentially because the only known fact at this point is the timing of the decision which, while suspicious, isn’t dispositive). Macy’s skills and experience were all in traditionally male endeavors. She was a police detective, applied for a job as a ballistics technician, and according to news reports, is also a veteran. As the EEOC pointed out, the gender identity claim may not even be necessary for her to win. If the ATF simply wanted to hire a man for the job, and disqualified her once she transitioned to living as a woman, it’s a plain old sex discrimination case.