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43 posts categorized "Transgender"

April 23, 2012

EEOC rules that Title VII covers gender identity discrimination

The EEOC has issued a decision holding that it will consider gender identity discrimination to be a form of sex discrimination prohibited by Title VII. The ruling comes in Macy v. Holder, a case brought by a transwoman against an agency within the Department of Justice. The EEOC decision cites precedent established in a series of federal court decisions that have come to the same conclusion.

The decision in the Macy case covers only gender identity discrimination and does not include any discussion of whether sexual orientation discrimination is also covered under Title VII.

The ruling clarifies that EEOC offices around the country will accept and process claims of gender identity discrimination, a practice that has been spotty in the past.

From MetroWeekly:

An employer who discriminates against an employee or applicant on the basis of the person's gender identity is violating the prohibition on sex discrimination contained in Title VII of the Civil Rights Act of 1964, according to an opinion issued on April 20 by the Equal Employment Opportunity Commission (EEOC). The opinion, experts say, could dramatically alter the legal landscape for transgender workers across the nation.

The opinion came in a decision delivered on Monday, April 23, to lawyers for Mia Macy, a transgender woman who claims she was denied employment with the Department of Alcohol, Tobacco, Firearms and Explosives (ATF) after the agency learned of her transition. It also comes on the heels of a growing number of federal appellate and trial courts deciding that gender-identity discrimination constitutes sex discrimination, whether based on Title VII or the constitutional guarantee of equal protection of the laws.

The EEOC decision, issued without objection by the five-member, bipartisan commission, will apply to all EEOC enforcement and litigation activities at the commission and in its 53 field offices throughout the country. It also will be binding on all federal agencies and departments.

In the decision, the EEOC states, ''[T]he Commission hereby clarifies that claims of discrimination based on transgender status, also referred to as claims of discrimination based on gender identity, are cognizable under Title VII's sex discrimination prohibition ....''

Continue reading "EEOC rules that Title VII covers gender identity discrimination" »

December 13, 2011

Barney, still Frank

Following is a quintessentially irreverent and irascible swan song from our main man Barney (I have excerpted quite a bit; full text is here):

Washington Blade: To what degree have you seen support for LGBT equality increase in the U.S. Congress since you took office as a congressman in 1981?

Rep. Barney Frank: Oh, enormously. When I first got here, the first vote we had was in 1981 when the House – as it was able to do then by a one-house vote – overturned the D.C. Council’s repeal of the [city’s] sodomy law. It was a heavy vote against us. And we’ve just made very great progress since then. It’s to the point where now — and it’s unfortunate that it’s gotten very partisan. The country has gotten much better in its view on LGBT rights. The Democrats have gotten better — equal to or ahead of the country. But the Republicans have gotten much worse. So it’s now one of the major partisan issues... 

Blade: When you came out in Congress did you sense you were being held back from advancing because of a so-called glass ceiling due to your sexual orientation?

Frank: I think there was one at first. I think, now, yes and no. Certainly it didn’t interfere with my being the chair of a very powerful committee and being, frankly, because of the circumstances, one of the major leaders. In fact I said that on the floor. I remember saying when we were talking about the hate crimes bill, ‘I’m a big shot now but I used to be 15 and I remember what it was like.’ … If I were running for a leadership position it might be a problem in the House. Some of the Democrats come from the few areas left where they’re afraid. But now we have almost all the Democrats on board. We have a handful that aren’t. So no... 

Blade: Some of the more outspoken trans activists... say they are outraged because [the new Massachusetts law prohibiting gender identity discrimination] includes employment, housing and other protections but not public accommodations protections.

Frank: ... I would say ridiculous trans activists who are outraged, who would prefer there be no rights for employment than this - - [t]hat is an example of their political stupidity. They may be very bright about other things. I don’t see how anybody can see that as a rational argument right now, nor, by the way, do I think it represents five percent of our community. I don’t even think it represents a majority of the transgender people. How can it possibly be – and by the way, these people don’t know history, because I will tell you that Martin Luther King and the other civil rights leaders would not for a second have hesitated to accept that deal... 

Blade: Some, like Hillary Clinton when she ran for president in 2008, said her husband signed DOMA because it would act as a safeguard against passing a federal constitutional amendment to ban gay marriage.

Frank: That’s nonsense. Her husband signed it because he was afraid politically about what would happen if he didn’t sign it. It has nothing to do with a constitutional amendment. He signed it because it was politically necessary to sign it. And I understood that. The Republicans threw it on his lap three months before the election. [Liberal, gay-supportive Senator] Paul Wellstone [D-Minn.] voted for it. He was up for re-election that year and he was afraid of it...

Blade: Do you have any predictions of what the Supreme Court might do if the Proposition 8 case gets there?

Frank: I think that’s not a good case. I think the better case is Mary Bonauto’s case [the attorney with the LGBT litigation group in Boston, Gay & Lesbian Advocates & Defenders, which is challenging the Defense of Marriage Act, or DOMA, in court on behalf of a same-sex couple.]

Blade: Everybody’s talking about the presidential election. Are the Republican presidential candidates as horrible as a lot of gay activists are saying they are on LGBT issues?

Frank: Yes – they are. Romney is a total faker, having said he was going to be more pro-gay rights than Ted Kennedy and he’s moved against us on everything, not just on marriage. And Gingrich was the leader of homophobic stuff when he was here. Gingrich was the man who put the Defense of Marriage Act on the agenda in 1996 when he was the Speaker... [I]n general the Republicans have become a 90 plus percent anti-gay party...  I’m not at all confident that a Republican president won’t reinstate ‘Don’t Ask, Don’t Tell.’

Blade: Is there a chance that the Congress would block that, even if there’s a Republican-controlled House?

Frank: Well Congress couldn’t reinstate it because they would never get it through the Senate and the president would veto it. But if the Republicans win the presidency they don’t need the Congress. The president could reinstate it by executive order.

Blade: Is it completely settled now that every gay civil rights bill will include gender identity and expression protections or it won’t be introduced, whether it would be ENDA or another bill?

Frank: I think it’s unlikely that it wouldn’t but that doesn’t necessarily mean it will pass. I think you’ll see transgender protections included. We’ve made progress on transgender. But my view is the same in that we still have the problem with the situation where people get naked together. But short of that, I think the next time we have a Democratic House, Senate and president...  we’ll be able to pass a transgender-inclusive ENDA. But like the Massachusetts law, probably not allowing full and unrestricted access to locker and shower rooms...

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December 01, 2011

11th Circuit panel signals support of trans employee

Sounds like things went extremely well for the Lambda Legal argument in the Glenn v. Brumby case before the 11th Circuit this morning, with support from all three members of the panel. It's dangerous to assume too much from an oral argument, and the decision below which the Court of Appeals is being asked to affirm was not without its shortcomings. But if this prediction holds and the 11th Circuit rules in Glenn's favor, it will be even more clear than it is already that Title VII prohibits discrimination based on gender identity, because it is a form of sex discrimination. Most circuits have already adopted that position. Congress and the Executive Branch should take steps to solidify this interpretation, and that should become much easier politically with the precedents created by these decisions. (from AJC:)

A panel of three federal appeals court judges on Thursday appeared strongly inclined to grant a legal victory to Vandy Beth Glenn, a transgender woman who was fired as a legislative editor at the General Assembly after she disclosed she was going to make the transition from man to woman.

During oral arguments, Judges Rosemary Barkett and Bill Pryor said U.S. Supreme Court precedents appear to support a lower-court judge's finding that Glenn was the subject of sex discrimination.

"We have direct evidence of intentional discrimination, it seems to me," Pryor told Richard Sheinis, a lawyer representing the state of Georgia. "You can't discriminate against someone because they don't behave the way you expect them to behave because of their sex," Pryor added.

Barkett repeatedly told Sheinis she couldn't understand the basis of the state's arguments.

Last year, U.S. District Judge Richard Story ruled that Glenn was discriminated against because of her sex, and the state is appealing that decision.

Glenn was hired as a legislative editor in October 2005 at a time when she was presenting herself as a man with the name of Glenn Morrison. Two years later, when she told Sewell Brumby, head of the Office of Legislative Counsel, that she intended to transition into being a woman, Brumby fired Glenn.

During the arguments, Senior Judge Phyllis Kravitch noted that no members of the legislative counsel staff had complained about Glenn's transition from man to woman. "No one complained but him," Barkett added, referring to Brumby.

In his ruling, Story said Glenn could get her job back. But that decision was stayed, pending the outcome of the appeal before the 11th U.S. Circuit Court of Appeals in Atlanta. Standing outside the courthouse after the hearing, Glenn said she was eager for the court to issue its decision. "I felt it went very well," said Glenn, standing by her lawyer, Gregory Nevins of the Lambda Legal Defense and Educational Fund. "It took a long time to get here."

November 28, 2011

LGBT cases before 11th Circuit draw majority liberal panel of judges

Judges Rosemary Barkett, Phyllis Kravitch, and William Pryor will decide two lgbt-related cases to be argued this week before the 11th Circuit Court of Appeals. Barkett and Kravitch (who is on senior status) are two of the liberal members of what is usually a conservative circuit; they were appointed by Presidents Clinton and Carter, respectively. Pryor, considered to be a strong conservative, was appointed by President George W. Bush.

On Thursday, they will hear arguments by the Georgia legislature that its firing of a transgender employee did not constitute sex discrimination. This will follow tomorrow's appeal by a self-proclaimed Christian who was ordered by Augusta State University either to provide non-judgmental counseling to gay clients or participate in a remediation plan. Lambda Legal attorney Greg Nevins (photo) will seek affirmance Imgresof the lower court decision in Glenn v. Brumby, the trans case, which granted judgment for the plaintiff. In the other case, the former ASU graduate student is being represented by the Alliance Defense Fund, which makes regular appearances on the opposite side of lgbt rights advocates.

The panel before whom they will argue presents a study in contrasts.

Judge Barkett is well known for her spirited arguments in dissent in both the panel decision and the denial of an en banc rehearing in Lofton v. Department of Children's Services, a challenge to the Florida law that prohibited adoption by lesbians and gay men. Barkett argued that the anti-gay adoption rule was unconstitutional if one followed the Supreme Court's decisions in Lawrence v. Texas and Romer v. Evans. (Florida has since abandoned its defense of the law.)

Judge Kravitch was a trailblazer for women in the judiciary. Only the third woman ever appointed to a U.S. Court of Appeals, she received the ABA's Margaret Brent Woman Lawyer of Achievement Award and an award for service to the profession from her alma mater, the University of Pennsylvania Law School. She began her career by joining her father's practice in Savannah, when no major firms would hire a woman. She later litigated important local civil rights cases.

Judge Pryor became Attorney General of Alabama in 1997 and served until he joined the 11th Circuit. Although nominated in 2003, Senate Democrats filibustered his appointment until President George W. Bush gave him a recess appointment in 2004. The Senate confirmed him the following year as part of a compromise on judicial appointments reached by the "Gang of 14." During his confirmation hearing, he reaffirmed his belief that Roe v. Wade was "the worst abomination of constitutional law in our history." 

Although these three judges will announce the first decision in the two cases, it might not be the last. A decision from the panel in any U.S. Court of Appeals case may be rescinded if the full Circuit grants a rehearing en banc.  The case is then re-argued before all the judges who are members of that Circuit.

November 27, 2011

The week ahead: November 28, 2011

[ADDED] Tuesday, November 29 - Oral argument in the 11th Circuit in Keeton v. Anderson-Wiley, in which Jennifer Keeton, a graduate student in counseling at Augusta (GA) State University, is challenging the ruling of a District Court that ASU was justified in requiring her to complete a remediation plan after she refused to counsel gay clients.

Thursday, December 1 - Oral argument in the 11th Circuit in Glenn v. Brumby, in which the Georgia state legislature has appealed a ruling that it discriminated against Vandy Beth Glenn on the basis of sex. Glenn, an MTF transperson, was fired from her job as an editor and proofreader. 

Also December 1 - The final set of briefs is due from the defendants in Gill v. OPM, one of the challenges to the constitutionality of Section 3 of DoMA. This closes the briefing; the parties await scheduling of oral argument. 

Friday, December 2 - Briefs in Perry v. Brown are due to the Ninth Circuit on the issue of how the court should respond to the advisory decision from the California Supreme Court that the Prop 8 proponents should have standing to defend it in the litigation.

November 18, 2011

Massachusetts adds gender identity protection to state civil rights law

The Massachusetts state legislature has amended its state anti-discrimination code to prohibit discrimination based on gender identity in employment, housing, credit and education. The legislation also expands the state hate crimes law to cover gender identity. Protection from discrimination in public accommodations was dropped from the bill to ensure its passage. The amendment, which will take effect July 1, 2012, defines gender identity as 

a person's gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person's physiology or assigned sex at birth. Gender-related identity may be shown by providing evidence including, but not limited to, medical history, care or treatment of the gender-related identity, consistent and uniform assertion of the gender-related identity or any other evidence that the gender-related identity is sincerely held, as part of a person's core identity; provided however, gender-related identity shall not be asserted for any improper purpose. 

At the municipal level, but in a quite conservative locality, Oklahoma City has amended its employment policy for city employees to ban discrimination based on sexual orientation. This article in The Oklahoman gives a flavor of the debate that preceded the vote of the City Council, which adopted the new policy by a 7 to 2 majority.

October 07, 2011

Bureau of Prisons changes its treatment policy for trans inmates

GLAD has settled the case it brought on behalf of Vanessa Adams, a Federal Bureau of Prisons (BOP) inmate at FMC Butner in North Carolina who has gender identity disorder (GID). Adams sued BOP in order to receive appropriate treatment for her GID, and the settlement is based on a recent Bureau of Prisons policy adopted in response to the lawsuit.

Under the settlement, BOP is ending its so-called “freeze frame” policy in which treatment for any person with GID is kept frozen at the level provided at the time he or she entered the federal prison system. The new policy states in part:

[I]nmates in the custody of the Bureau with a possible diagnosis of GID will receive a current individualized assessment and evaluation.  Treatment options will not be precluded solely due to level of services received, or lack of services, prior to incarceration...

It further specifies that "current, accepted standards of care will be used as a reference for developing the treatment plan."

September 20, 2011

DADT dies, but its ghosts are close behind

Truth be told, the DADT policy has been twisting in the wind for at least a year, as the Pentagon added multiple levels of review for each proposed discharge, and then the order of the District Court in Log Cabin Republicans v. Panetta mandated no initiation of new cases. Still, today is THE day, the moment when the brass hats have finally acceded to the change that everyone knew was coming, but that none of them wanted to happen "on my watch."

And it is truly stunning - the U. S. military is now training its troops on their duty to accept and work with the gay men and lesbians in their units.

It is also true, however, that a number of problematic issues remain. Big ones include:

  • There has been no progress on the acceptance of transgender service members, regardless of their abilities.
  • Members who were discharged during the reign of DADT may have claims for lost pay or benefits.
  • Article 125 of the Uniform Code of Military Justice - the sodomy law - remains in effect, although prosecutions are not brought in the absence of aggravating factors such as relations between a superior and a subordinate or in a public place.
  • There may be some family benefits for service members that do not depend on marriage and which are extendable to partners and/or the children of partners. If Section 3 of DoMA is invalidated, the military will have to recognize same-sex marriages.

The biggest question mark, in my view, is how any incidents of harassment will be handled. Harassment of women (especially lesbians) has been at epidemic levels within the military for years. Occasionally, a  particularly flagrant example makes its way into the press, but most are ignored and many are apparently considered business as usual

The world will be watching for whether gay and lesbian service members become targets for physical or verbal assault. Military leaders should take this opportunity to crack down on the misogyny that fuels all forms of harassment.

September 16, 2011

Social Security ends no-match letters for gender differences

According to an announcement from the National Center for Transgender Equality:

The Social Security Administration (SSA) has confirmed that it has ended the practice of allowing gender to be matched in its Social Security Number Verification System (SSNVS). This will result in the immediate cessation of SSA sending notifications that alert employers when the gender marker on an employee's W-2 does not match Social Security records.

"Ending this practice, which has endangered transgender people and our jobs, has been a priority for NCTE and we are pleased that the SSA has updated its policy. Alerting employers about differences in someone's gender threatened people's jobs and did not accomplish what this verification system was designed for. There was absolutely no reason for it and it was extremely dangerous for transgender people, who still face significant disrespect, discrimination and violence in the workplace." [Mara Keisling]

An NCTE briefing paper provides background information about no-match letters. A Freedom of Information Act request from NCTE showed that 711,488 gender no-match letters were sent in 2010. This year the no-match letter program, intended to detect fraud, has been off and on because of budget issues.

Asked about the decision, White House spokesman Shin Inouye told MetroWeekly, "The White House welcomes this move by the Social Security Administration."

July 06, 2011

Connecticut becomes 15th state to prohibit anti-trans discrimination

Connecticut Governor Daniel Malloy signed legislation today amending the state's anti-discrimination law to include "gender identity or expression" as a prohibited basis for discrimination in employment, housing, public accommodations, education and other fields. Earlier in the month, a number of trans-phobic amendments were defeated in the state senate, leaving the original bill intact. The amended statute is here.

The Connecticut law takes effect October 1.

The 14 other states with similar bans are California, Colorado, D.C., Hawaii, Illinois, Iowa, Maine, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont and Washington.

December 31, 2010

2010: From trans liberation (?) to geezers on the left and into 2011...

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As a way to close out 2010, here's the official pronouncement from the NY Times that this was a technicolor transversal year:

It's certainly a statement on our times that, in the same month, James Franco graces the covers of GQ and Candy. In GQ, he appears in a moody head shot. In Candy, a style magazine dedicated to what it calls the “transversal” — that is, transsexuality, transvestism, cross-dressing, androgyny and any combination thereof — Mr. Franco, shot by Terry Richardson, vamps in trowel-applied makeup, heavy jewelry and a woman’s dominatrix-style power suit.

Candy, it turns out, is but one of the more visible bits of evidence that 2010 will be remembered as the year of the transsexual. Yes, Mr. Franco is just dressing up and doesn’t feel he was born the wrong sex. But it is a grand gesture of solidarity with gender nonconformists and certainly hasn’t affected attendance at “127 Hours.”

Other celebrities have flirted with “the other side,” cross-dressing for fashion publications. On the cover of the current Industrie, Marc Jacobs is decked out in one of his signature women’s designs (albeit with a beard). Japanese Vogue Hommes revealed its new male model, Jo Calderone, who was, in actuality, Lady Gaga.

Not since the glam era of the 1970s has gender-bending so saturated the news media. ...The only thing that would have raised more awareness of trans people would have been a link with the president — even better, a link that rhymed. That’s when the “tranny nanny,” Barack Obama’s transvestite nanny from his boyhood in Jakarta, Indonesia, was discovered and made headlines...

[The third photo is of model Lea T, in feathers, who told the Times,] “I hope we have a big revolution, and people change their minds about us — that it is just the beginning.” 

If only.

And then there's this photo of a group that looks (especially by comparison to the first photo) like the new leadership team for Geezers Anonymous, or maybe for a group representing everyone ever voted off the island.

From left: Nancy Pelosi, Steny Hoyer, Pete Stark, Henry Waxman, Charles Rangel and John Dingell are pictured
Not so funny, though, when you consider that no political entity in the country produced more significant legal change this year (or this decade) than the House of Representatives 2010, which led every successful progressive initiative - from health reform to new regulation of the financial markets to literally hundreds of bills that were blocked in the Senate to, at the end, kickstarting the final push to repeal DADT. No, none of those is perfect, but compared to anything we've seen come out of either chamber of Congress in 30 years, it's a pretty darn impressive list of accomplishments.

So, unlikely as hell, this crew really can claim to be fierce advocates. Yes, Virginia, liberals can be fierce. Too bad they're about to return to the political equivalent of the North Pole.

July 06, 2010

Federal court judge finds anti-trans discrimination unconstitutional

U.S. District Judge Richard Story 90_vbeth has ruled in Glenn v. Brumby that the Georgia state legislative counsel's office acted unconstitutionally when it fired Vandy Beth Glenn from her job as an editor after learning that she would transition from her former identity as male. Glenn, who was a terrific witness at the ENDA hearing before the House Education and Labor Committee last September, is the most recent in what is becoming a long list of successful trans plaintiffs suing on sex discrimination grounds. Lambda Legal brought the case on her behalf.

The caveat in this case is that the court accepted the defendant's argument that the anticipated negative consequences of Glenn's use of the women's restroom (lawsuits by coworkers) was a rational basis for her firing. The standard of review in sex discrimination cases requires that the defendant show that its actions were substantially related to an important government interest. Because he found that speculation about reactions to bathroom use did not meet that standard, Judge Story granted summary judgment to Glenn on her sex discrimination claim. However, he denied summary judgment to her on her other ground for relief, which asserted an Equal Protection violation based on her medical condition. Medical condition claims require only a rational basis for governmental actions.

There was no evidence that the defendant's concern with restroom use was an actual reason for the decision to fire Glenn, rather than an argument offered after the fact, nor was there any evidence that Glenn had used the women's restroom or would have been likely to do so, since there were multiple single-occupancy bathrooms available near her office. Under the higher standard of review applicable to sex discrimination, these missing facts - plus the supervisor's admission that he decided to fire her because he felt that a biologically male person presenting as female would be "unnatural" - were fatal to the defense. The court distinguished this case from decisions in the Sixth and Tenth Circuits in which plaintiffs lost on the ground that employers feared that women co-workers would sue the employer if an MTF person were allowed access to the women's bathroom. In those cases, the Georgia judge said, there was evidence that bathroom use issues were the actual reasons for the firings.

The most distressing part of the Glenn decision was the court's reasoning that

Terminating an employee with male genitalia who intends to present as a woman and thus could use women's restrooms would further the purpose of avoiding lawsuits resulting from that use. Avoiding the costs of lawsuits, even meritless suits, is a rational legitimate government interest. Terminating an individual that could increase the prospects of such suits is rationally related to the goal of avoiding such suits.

What we see, therefore, is the development of a line of employment cases in which trans plaintiffs have essentially succeeded in establishing the legal principle that discrimination based on gender identity is a form of sex discrimination. However, even those courts may ultimately rule against the plaintiff if the defendant can demonstrate that it acted pursuant to what a judge may perceive as legitimate bathroom access issues.

It is starting to seem that it matters less and less whether job discrimination based on gender identity is dealt with under ENDA or Title VII. At the same time, however, the need to resolve the bathroom access problem through negotiated statutory language is becoming more important.  That is the sticking point that is holding up ENDA's progress in Congress and, as these cases demonstrate, it is also the issue on which advocates are most vulnerable under a sex discrimination approach.

April 12, 2010

ENDA: Time to nail down the new language and move it

Congress returned from its spring holiday recess today, and Karen Ocamb has just posted an interview she did with Rep. Barney Frank, who was in Los Angeles this past weekend, about a variety of lgbt-related bills.

Most important to me, Barney indicated that ENDA is ready to move, with the negotiations completed on its final language. I know that these sorts of negotiations, between lgbt advocates and Congressional staff, can be prolonged. But the ENDA talks have been going on for months, and the prospects for passing it, especially in the Senate, are more likely to diminish than to increase as the clock ticks away.  IMHO, passing ENDA ought to be the number one priority - out of all lgbt issues - until we see POTUS signing it into law.

Here is Barney's current take:

“I’m hoping to get a vote on it in committee [House Committee on Education and Labor]... And we’ve worked hard. The chairman of the committee involved – George Miller – had a major role in health care. But within the last few weeks, just before we left [for recess], we had a meeting in the Speaker’s office [Speaker Nancy Pelosi] with the Majority Leader [Steny Hoyer] and myself and chairman of the committee George Miller – and we had a lot of things worked out. So what the committee needs to do now is make sure we have the votes...."

 Consistent with what I have heard elsewhere, Barney described the compromise language agreed to by lgbt advocates, which is necessary to get the bill through with trans inclusion:

“Essentially, there are full protections for people who are transgender with a couple of provisos: One – the employer can ask for a gender consistent dress code. No mustaches and dresses. Two – people with one set of genitals do not have a legal right to get naked in front of the other set, is the basic way to put it. Some accommodation has to be made there. If you insist on the right for unrestricted access to bathrooms – we lose. And we’re making some accommodations here. And we worked it out with the transgender community." 

I haven't seen the precise language of the changes, but even with them, even if the other side's concerns are silly and offensive, there is no question that ENDA will be a huge breakthrough for everyone covered by it, and one that is long overdue. Time to put a bow on it.

February 01, 2010

Moving forward on employment with or without ENDA

One implicit message of President Obama's State of the Union address last week lies in what he did not say. He promised to move ahead with prioritizing a repeal of Don't Ask Don't Tell; he did not mention ENDA. While a vote on ENDA in the House is probably still likely sometime in 2010, prospects in the Senate are very tough.  The harsh truth is that because the bill includes protection for gender identity - which I believe it should - it may take considerably longer to enact.  If Dems lose a significant number of seats in either chamber, it will be an even bigger lift next year. On the other hand, if the 2010 elections go well for the Dems, there will be more momentum to move ENDA through both chambers in 2011. We'll know in about 10 months how that will turn out.

The uncertainty over ENDA is no reason to slow down on employment issues, however. No issue has greater material importance than jobs - some of us marry, some of us don't, but we all work, or want to. And in a time of massive economic anxiety, the right to fair treatment for lgbt people in the workplace is critical.

Here are three goals that advocates could prioritize immediately:

1) President Obama could issue an Executive Order adding gender identity to the list of characteristics which are prohibited as the bases for discrimination for federal government workers. (Governor Paterson did this for New York state employees in December.) The federal government is the nation's largest employer and a model for private employers. When ENDA moves forward, it will be a powerful argument if advocates can point to the federal government as a workforce where such discrimination is already prohibited. I know that OPM has issued guidelines designed to achieve the same result, while still flying below the radar. But the advantage and disadvantage of flying beneath the radar is the same: no one knows what you are doing. Having an Executive Order, unlike the current guidelines, not only has an educative effect, it also sets the stage for future actions by the federal government. It's time for the administration to do the right thing.

2) State laws prohibiting employment discrimination still do not exist in a majority of states, and that too makes passing ENDA more difficult.  Take this quiz:

Which of the following states lacks an anti-discrimination law covering lgbt (or any subgroup thereof) workers: Ohio? Pennsylvania? Michigan?

Answer: All of the above.

A couple of years ago, a big chunk of gay money went into New York state legislative races, and the state senate turned Dem for the first time that anyone can remember. The goal was eventual enactment of a marriage statute. The same kind of savvy targeted effort should be undertaken to win an anti-discrimination law in these key states and others like them, where success is within reach.

3) Federal courts have increasingly been willing to extend anti-discrimination protection to trans workers through the prohibition against sex discrimination in Title VII, usually using a sex stereotyping theory. Gender expression as well as gender identity has also been covered. The trend isn't universal; there are still bad decisions happening. But the comparison to how courts were ruling 10 years ago is dramatic.

I have no doubt that the legal groups will continue to litigate carefully selected cases that can extend this principle. But the Obama administration could contribute to this strategy as well, with many more resources than any lgbt group has. During the Clinton administration, a task force within the Justice Department sought to identify good cases in which to litigate a sex stereotyping theory. Now that same kind of effort has begun again. In mid-January, DoJ moved to intervene in JL v. Mohawk School District, on behalf of a student who had been subjected to severe harassment because of his gender expression. DoJ should actively look for employment discrimination cases as well in which it can play a role.

In sum - with a nod to the upcoming Chinese year of the tiger - let's make 2010 the year of employment issues.

December 18, 2009

NY State employees gain gender identity protection

Governor David Paterson of New York signed Executive Order 33 on Wednesday declaring that state government employees shall not be subjected to discrimination based on gender identity. The state already prohibits sexual orientation discrimination for all employees, public and private. It's an important step; Governor Paterson deserves credit for taking it. 

The problem with executive orders is that they create no remedies for the employee who may nonetheless suffer discrimination. In some states, an employee can file a personnel complaint based on an executive order, but in many states, an executive order is largely an aspirational statement.  A future governor can also rescind an executive order, which has happened quite a few times with protections for sexual orientation. I doubt that any future New York governor will rescind this one, however.

EO 33 ought to help reassure some of the jittery Dems in Congress, especially those from New York and neighbor states, who are worrying about voting for a trans-inclusive ENDA.

Text of the operative portions (minus the "whereas" clauses) of the executive order after the jump -->

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