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By: JOE CREA COMMENTS
 
In the debate over the strategy for adding protections based on gender identity
and expression to the federal Employment Non-Discrimination Act, there is one
aspect receiving less attention. Some legal experts are claiming that transgender
Americans already receive some protections now that gay men and lesbians do not.
Courtney Joslin, a staff attorney at the National Center for Lesbian Rights
in San Francisco and co-chair of the Sexual Orientation and Gender Identity
Committee of the American Bar Association’s Section of Individual Rights
and Responsibilities, said various court rulings suggest that transgender workers
are covered at least in part under Title VII of the Civil Rights Act of 1964,
which outlaws hiring or employment discrimination on the basis of the employee’s
“sex.”
Court rulings have generally agreed that anti-gay discrimination is not covered
by Title VII.
The Human Rights Campaign announced in August that it will withdraw support
for ENDA, the group’s signature federal legislation, if it is amended
not to cover gender identity and expression. HRC has argued that such language
would benefit gay men and lesbians who face discrimination because they are
either effeminate men or butch lesbians.
“The bottom line is simply that neither today’s employment discrimination
laws nor ENDA as currently written meet the needs of protecting everyone in
our community,” said Cheryl Jacques, HRC’s executive director.
Others have echoed HRC’s newfound claim that gender identity and expression
are helpful additions to ENDA for gay employees.
Ben Klein, a lawyer at the Gay & Lesbian Advocates & Defenders, said
that having provisions for gender identity and expression in ENDA would “certainly
be used by gay and lesbian individuals [in court].” He noted that adding
sexual orientation plus gender identity and expression would provide the “most
comprehensive statutory scheme for sex discrimination.”
Shannon Minter, who is legal director for the National Center for Lesbian Rights
and a board member of the Transgender Law & Policy Institute, said there
is a “very genuine need to draft non-discrimination laws for LGBT people
as broadly as possible to prevent courts from slicing out LGBT people who are
discriminated against because of their gender expression.”
If passed by Congress and signed by the president, ENDA as it is currently
written would statutorily extend workplace non-discrimination protections to
include sexual orientation, although ENDA includes limits on legal rights for
gays not present under Title VII. Gay workers could not use statistics to prove
a pattern of discrimination, and ENDA includes a provision that excludes affirmative
action based on sexual orientation.
Since ENDA’s 1994 introduction in Congress, transgender rights advocates
have fought to have protections based on gender identity and expression added
to the bill. The measure came one Senate vote shy of passing in 1996 without
trans protections.
HRC had already supported including trans protections in ENDA, but the August
decision was the first time the agency said it would only support the legislation
if trans protections remained part of the bill.
Leading Congressional sponsors of ENDA, such as Congressman Barney Frank (D-Mass.),
who is gay, and Sen. Ted Kennedy (D-Mass.) have said a trans-inclusive ENDA
is unlikely to pass Congress and would certainly scare off many supportive Republicans.
Whatever the political fate of a trans-friendly ENDA, legal experts disagree
whether transgender people are already afforded some protections from discrimination
under Title VII that is denied to gay and lesbians workers.
Joslin — of the National Center for Lesbian Rights — points to
federal cases allowing employees to sue for being discriminated against because
they do not conform to “gender stereotypes.”
In the 1989 Price Waterhouse vs. Hopkins case, the U.S. Supreme Court ruled
that Title VII prohibits the “entire spectrum” of discrimination
on the basis of sex, including discrimination on the basis of gender stereotypes.”
The case involved Ann Hopkins, an employee at Price Waterhouse who claimed
she was denied a promotion because she was not feminine enough.
To increase her chances of becoming a partner, she claimed, she was told to
“walk more femininely, talk more femininely, dress more femininely, wear
make-up, have her hair styled and wear jewelry.” Price Waterhouse argued
that Title VII did not prohibit discrimination based on gender stereotypes.
The Price Waterhouse case and others along the same lines offer some protections
to transgender workers ...
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