crossposted from unbossed
Discrimination against people who suffer from Gender Identity Disorder (GID), that is, transgendered people, is a hot legal topic these days. Title VII does not expressly protect them and expressly prohibits protecting homosexuals. As a result, the courts and the legal theories are all over the place when it comes to dealing with transgender discrimination. The basic legal conflict comes down to a question whether discrimination based on transgender status is discrimination "on the basis of sex" - something that is illegal under Title VII - or whether, since Congress has not spoken by adding protections based on gender identity while amending Title VII to make other changes, means it does not intend to protect GID.
A June 26 congressional hearing covered many of these issues.
Below I include an overview of the witnesses, links to video, and testimony, and, in some cases, brief excerpts from testimony that I think gives an introduction to the issues. You can find the full testimony from all witnesses at the hearing website: June 26, 2008 Health, Employment, Labor, and Pensions Subcommittee Hearing: An Examination of Discrimination Against Transgender Americans in the Workplace Webcast here
Prepared remarks of SubCommittee Chair, U.S. Rep. Rob Andrews (D-NJ).
The purpose of today's hearing is to educate Congress and the public about the discrimination transgender American face particularly in the workplace absent a comprehensive federal law to protect them.
Workplace discrimination against a particular group of people is morally unacceptable and conflicts with the principles we hold sacred in our society. Furthermore, workplace discrimination, unchecked, harms our economy both domestically and globally.
When an employer is permitted to deny someone a job based on their identity without consequence, makes increases on our unemployment rate and diminishes our competitive edge in the global economy, making us less competitive in the global economy.
Testifying before us today are some of the most distinguished and brightest members of our society, who were denied employment or fired because they are transgender. These individuals along with the roughly 700,000 to 3 million transgender individuals living in America today run the risk of being fired, demoted or not even hired because of their gender identity.
There are 12 states, including the District of Columbia with laws in place to protect transgender individuals from workplace discrimination, as well as, many reputable companies with antidiscrimination policies. Despite these protections, studies and surveys reveal high rates of unemployment and low-income status among transgender Americans.
Witness List:
Congressman Barney Frank, 4th Congressional District of Massachusetts
Congresswoman Tammy Baldwin, 2nd Congressional District of Wisconsin
Hate crimes against transgender Americans are tragically common. Transgender people also face discrimination in the mundane tasks of the everyday – trying to find housing, apply for credit, or even see a doctor... and, of course, in the focus of today’s hearing: trying to provide for themselves and their families.
Diane Schroer, Retired Colonel, United States Army
Diego Sanchez, Director of Public Relations & External Affairs AIDS Action Committee, Boston, Massachusetts
JC Miller, Partner, Thompson Hine, LLP, Washington, D.C.
I urge the Committee to carefully consider the implications of any legislation which might be enacted regarding transgender discrimination.
I respectfully suggest the Committee consider three specific areas when drafting any legislation on the issue: the definition of gender identity; the issues surrounding shared facilities; and jurisdiction over enforcement of rights.
While I recognize that the definition of gender beyond physiological or biological parameters is challenging, an overly broad definition will not provide the necessary guidance to a business manager to deal with the matter. Definitions which include a reference to "mannerisms" without more precise language is confusing and could inadvertently perpetuate sexual stereotypes. After all what is a gender related "mannerism"? For example, at one time a firm handshake was the hallmark of masculinity; however in our current society a business woman with a firm handshake is not perceived as ‘masculine’ as much as she is viewed as confident and professional. But legislation that suggests that any mannerism is still more frequently attributed to one gender more than the other inherently perpetuates the stereotype. Asking a business manager to first proscribe certain mannerisms to one gender rather than the other, then to refrain from discriminating against any employee with that mannerism because it maybe part of the employee’s "gender identity", is counterproductive. Our goal should not be to label a mannerism as "masculine" or feminine", but rather to determine if certain conduct is acceptable or unacceptable in the work environment- regardless of which gender displays the mannerism.
Bill Hendrix, Global Leader, The Dow Chemical Company, Indianapolis, Indiana
Glen Lavy, Senior Counsel and Senior Vice President, For Marriage Litigation, Alliance Defense Fund Scottsdale, Arizona
It is important to recognize that religious objections to the concept of "transgender" are based on theological beliefs rather than discomfort with or fear of the unfamiliar. The concepts of male and female being established at birth and the two sexes being joined in marriage are integrally related to theological beliefs about the relationship between God and the church. Forcing persons with such beliefs to treat "transgender" as a valid concept is like forcing an Orthodox Jew to eat pork. Regardless of one’s views of the merits of such beliefs, it is
Sabrina Taraboletti, Aeronautics Engineer, Brevard County, Florida
Shannon Minter, Esq., Legal Director, National Center for Lesbian Rights, Washington, D.C.
Existing federal law, including Title VII, does not adequately protect transgender employees. As a logical matter, discrimination against a person for changing his or her sex should be recognized as discrimination based on sex, just as discrimination against a person for changing his or her religion or nationality is recognized as discrimination based on religion or nationality. Many legal scholars, as well as women’s rights and civil rights advocates, strongly support the view that the prohibition of sex discrimination in Title VII logically, and as a matter of principle, should prohibit transgender discrimination. In practice, however, most courts have rejected that view, creating a significant loophole in sex discrimination law. For decades, starting in the 1970s, courts summarily held that Title VII does not protect transgender people from discrimination. Too often, those decisions not only denied protection, but spoke about transgender people in disparaging and demeaning terms. In recent years, some federal courts have begun to hold that, at least under some circumstances, Title VII may protect transgender people who are discriminated against because they do not conform to gender stereotypes. The most notable example is the Sixth Circuit, which thus far is the only federal appellate court to issue such a decision. This is a welcome development, and has provided a remedy for some transgender employees against some forms of gender identity discrimination. For the most part, however, courts have continued to apply Title VII narrowly to exclude transgender people. Moreover, even the few courts, including the Sixth Circuit, that have held that Title VII may protect transgender people against discrimination based on gender stereotypes have stopped short of holding that Title VII prohibits discrimination simply because a person is transgender.
Thus, it is essential that Congress make clear that discrimination against transgender people because of their gender identity is against the law.
Again, the full testimony is available at the hearing website.