On May 21st, a landmark EEOC ruling went into effect, applying on a national level what a number of federal courts have already held: transgender people are covered by a federal prohibition on sex-based employment discrimination under Title VII of the Civil Rights Act of 1964. On a practical level, this decision will have a broad impact. It means that in every single state, employers—both public and private, who have businesses with 15 people or more—may not discriminate against transgender employees. If they do, those employees now have a legal remedy that did not previously exist nation-wide.
According to the 2011 National Transgender Discrimination Survey, a staggering 90% of respondents have experienced some form of discrimination, mistreatment or harassment at work specifically because of their gender identity or expressions. Given the harsh legal and social landscape to which they are subjected, that number is unfortunately not surprising. Only 16 states and Washington D.C. have anti-discrimination statutes that include gender identity, there is no federal law explicitly prohibiting discrimination on the basis of gender identity, and the unemployment rate among transgender people is double the national average. For transgender people of color, the rate is four times as high. Combine these issues with the disproportionately high levels of poverty, homelessness, and other forms of widespread marginalization that transgender and gender non-conforming people experience—particularly in low-income communities, communities of color, and immigrant communities—and it becomes clear how badly protective measures are needed and how much is still left to be done.
In the case that established this EEOC decision, Mia Macy was denied a job solely because of her gender identity. Ms. Macy is both a veteran and former police detective. She was highly qualified to be a ballistics officer with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) and, because of her unique training, was told after an initial phone interview that she was virtually guaranteed a job with ATF, as long as she cleared a routine background check. A few months later, after Ms. Macy disclosed to her future employer that she planned to transition from male to female, she received an e-mail stating that the position was no longer available due to funding cuts. In reality, ATF hired another candidate because they were not comfortable with Ms. Macy’s transition.
The EEOC held that such actions are discriminatory and illegal by relying on the 1989 Supreme Court case Price Waterhouse v. Hopkins and a number of other federal cases applying Price Waterhouse to transgender employees. In Price Waterhouse, the plaintiff, Ms. Hopkins (who is not transgender), was denied a promotion because her employer believed that she was not feminine enough – going so far as to recommend that if she wanted to be promoted, she should wear makeup and jewelry or perhaps take a “course in charm school.” The Court ruled that Title VII not only protects people who are explicitly discriminated against in employment because of their sex, but also those, like Ms. Hopkins, who are discriminated against because they do not conform to certain gender stereotypes (i.e. women who are not stereotypically feminine or men who are not stereotypically masculine). In a number of cases since then, federal courts, and now the EEOC, have applied this reasoning to transgender employees, even finding that any form of discrimination against transgender employees is per se sex discrimination. That was the holding in Schroer v. Billington, a 2008 U. S. District Court for the District of Columbia case, as well as Glenn v. Brumby, a very recent 11th circuit case involving a transgender woman who was fired because her employer felt that her transition was “unnatural” and would make others in the office feel uncomfortable.
Despite this landmark decision, there is still much work left to be done to ensure full workplace safety for transgender and gender non-conforming people. Although the EEOC ruling is groundbreaking and will undoubtedly impact employee rights and employer policies moving forward, advocates must (and do) still continue to push for an inclusive federal bill like the Employment Non-Discrimination Act (ENDA). This is necessary for a number of reasons, not least of which is that federal courts are not strictly bound by EEOC decisions and the Supreme Court could overturn this particular interpretation of sex-discrimination under Title VII if lower courts disagree. Also, this decision does not directly impact the fact that in many states it is still legal to fire an employee because of their sexual orientation.
Nevertheless, this case is an important and historic step in the right direction. It adds to what is a clear, growing momentum towards much-needed acceptance and legal protection for transgender and gender non-conforming people in the United States and abroad.