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June 21, 2009

On transgender federal employees and legal history

I've gotten so many questions about legal issues related to federal employees in the past week of Obummer-ness that I thought it might be useful to provide a bit of historical context. In my post about the memorandum that the President signed on Wednesday night, I briefly described the history of the "unrelated to job performance" law that the new memorandum cites, and the potential it holds to protect federal employees against discrimination based on gender identity. The full story goes all the way back to the mid-sixties.

The "lavender scare" and the purges of government workers who were gay or thought be gay dominated the 1950s and 1960s.  In DC, where the greatest attention was focused on federal employees, police regularly entrapped gay men in Lafayette Park (across the street from the White House) and then shared the information about their arrests with government agencies that employed them. So an arrest, even on a minor charge, was not simply an arrest but also, effectively, a job termination. That started to change when some of the men began to fight back in court.

At that time, the Civil Service law provided that employees could be fired for "immoral conduct" that rendered them "unsuitable for government employment." In 1969, the U.S. Court of Appeals in D.C. ruled in Norton v. Macy, 417 F.2d 1161, that it was unconstitutional for the government to fire someone for "immoral conduct" unless "a specific connection," or nexus, could be shown between the conduct at issue and the employee's ability to do his job. This decision triggered a series of official responses: a Civil Service bulletin (1973), then a formal regulation (1975), and finally a statutory change (1978).  All of these provided protection for conduct that did not affect the workplace, a framing that grew out of the arrest cases.

Soon, issues arose that did not involve specific sexual conduct, but related to homosexuality more generally. By the 1970's, some brave folks were starting to come out on the job. In the final months of the Carter administration in 1980, OPM issued a memorandum stating that employees were protected against adverse actions based upon "non-job-related conduct, such as ... sexual orientation." The Reagan and Bush I administrations neither revoked nor reaffirmed the 1980 memorandum.  In 1994, the Clinton OPM Director explicitly reaffirmed it.  Then in 1998, President Clinton upped the protection to the maximum level short of a statute by adding sexual orientation to the Executive Order that specifies the protected characteristics for federal workers.

Paragragh 3 of the Obama memorandum authorizing OPM to provide guidance to agencies based on the "factors not related to job performance" standard (which OPM was fully empowered to do without this memorandum, btw) builds on this history. What will it do? I think we can expect the new OPM guidance to state that, without a demonstration of a nexus between gender identity and ability to perform the job in question, federal agencies are prohibited from discriminating on that basis. This is what is called a "sub-regulatory" rule because, unlike a formal regulation covered by the Administrative Procedures Act, it does not have to go through publication in the Federal Register and consideration of public comments before it is promulgated.  It is simply an internal management policy for federal workplaces.

What is its legal status? Its major power is probably educative and preventive. Also,  because it states the formal policy of the government, it would enormously strengthen any claim of discrimination brought by a transgender person. It is less formal and less binding on future administrations than an Executive Order, although the Carter-era memorandum stayed in place despite Republican presidents. In rough terms, Executive Orders trump memoranda. And as the memorandum itself states in Section 4 (c), it creates no "right or benefit." That includes a right to bring a court action, meaning that it does not by itself create the basis for a lawsuit if an agency violates it. It is certainly a way to keep gender identity issues backburnered and obscure while simultaneously improving the law, just as the earlier Civil Service and OPM documents did for sexual orientation issues.

So, bottom line? As I said in the earlier post, it's not as good as an Executive Order but it's better than nothing. It's certainly good news for Diane Schroer - there's no way that the government will be appealing the ruling for her from a federal district court (577 F.Supp.2d 293) last year. Best case scenario is that it will serve the same function as an executive order in the upcoming debates over ENDA, by which I mean that ENDA proponents can argue that the federal government has taken the lead and bound itself to a policy of non-discrimination based on gender identity, so it is not unreasonable (or at least not hypocritical) to require private sector employers to be bound by that same policy. With luck, the forthcoming "guidance" will sway enough members of Congress to allow ENDA to go through intact, which apparently now is far from certain.

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Comments

This is good news indeed. I would also add to this the recent EEOC guidance letter that states that Title VII can protect transgender employees. (See http://bit.ly/2nv8l6) What I would like to see, however, is an adequate understanding of what it means when one says "demonstration of a nexus between gender identity and ability to perform the job in question." As in the Schroer case, it is easy for employers to argue that transgender employees are dishonest for failing to disclose earlier, that the pressures of gender transition and medical leave are distracting them from the job and that transgender status makes employees ineffective in client or customer-facing positions. The other major arguments are that transgender status violates cultural preferences for bathroom usage and job-related dress codes. I hope that the OPM guidance will be specific enough to be helpful to any employee thinking of transitioning on the job. While not all transgender people go through a transition, those who transition on the job are the most vulnerable of all.

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