New Rights Employers Have To Give Transgender Workers
As of Monday, almost 1 million Americans have a federal protection that they never had before. In a historic vote, the Equal Employment Opportunity Commission decided unanimously that discrimination on the basis of gender identity was discrimination on the basis of sex. Transgender Americans suddenly got a protection that gays and lesbians haven't been able to achieve, despite decades of fighting for it.
Almost every year since 1994, a law that would make it illegal for companies to fire or refuse to hire someone for being gay has been introduced to Congress, and failed. For 10 years, transgender advocates fought to be included in the bill, but gay rights groups and politicians feared that would kill it on arrival. "Sexual identity" was finally added to the bill in 2007.
But in a single stroke this week, sexual identity rights leaped ahead. Transgender Americans must now be treated as equals in the workplace, thanks to Mia Macy.
Macy (pictured above) is an Army veteran and a former police officer. She was also a man, at least everyone thought so, last year when she applied for a job as a ballistics technician at the Walnut Creek, Calif., laboratory of the federal Bureau of Alcohol, Tobacco, Firearms and Explosives.
In January 2011, a contractor got in touch to start filling in the paperwork, and told her a background check was underway. Then in March, she told him that she was transitioning from male to female. He replied that the position had been eliminated due to budget cuts. Later she found out that someone else had been hired for the job.
Without work, Macy struggled financially. She lost to foreclosure the home that she had shared with her partner of 20 years. But she decided to fight back.
In December, she brought her case to the Equal Employment Opportunity Commission, according to a press release from the Transgender Law Center, which represented her. In a historic vote on Monday, the federal agency decided, in a unanimous 5-0 vote, that discrimination on the basis of gender identity was discrimination on the basis of sex.
An EEOC ruling doesn't have the same power as a law. A court could end up disagreeing. But the EEOC is the government agency charged with interpreting and enforcing employment law, and the courts -- and employers -- take that pretty seriously.
"I'm proud to be a part of this groundbreaking decision confirming that our nation's employment discrimination laws protect all Americans, including transgender people," Macy said in response to the ruling.
In the past year, federal courts in several states have been reaching the same conclusion: that Title VII's ban against sex discrimination protects transgender people too. Discriminating against an employee on the basis of their gender identity was already illegal in 16 states. Studies show that 20 to 57 percent of transgender workers have experienced discrimination, according to the Human Rights Campaign.
But the courts haven't reached those same conclusions about gays and lesbians. "It's pretty much universally decided that Title VII doesn't apply," says Brian Multon, the legal director of the Human Rights Campaign. "Even though a lot of discrimination against gays and lesbians is couched in sex stereotypes, I think at its core it's based on a perception of how a particular sex should behave."
Some are still optimistic that the courts will change their minds about gays and lesbians. "We're hopeful that clarity will come soon," says Mark Snyder, a spokesman for the Transgender Law Center. Sexual identity got the green light first because "that's just the timing of how everything worked out."
But in the meantime, gays and lesbians are left to fight for their rights the longer and messier way: through Congress. The lesbian, gay, bisexual and transgender community tried to skirt the legislative branch recently by pressuring President Obama to sign an executive order to make it illegal for any company contracted by the federal government to discriminate on the basis of sexual orientation or gender identity.
The White House said no. It wasn't right to take a piecemeal approach to workplace rights, said a spokesman, because "the time is right" for complete, legislative reform.
Unfortunately, that reform may not come for a while. And advocates for America's estimated 900,000 transgender residents -- aren't going to rest, just because the EEOC has given them the thumbs-up.
"We view this as a sea change. It's a huge moment for transgender equality," says Snyder. "But we still think it's important to have protections in every area of government, so protections are broad and clear."
"This is not a final decision of the Supreme Court," said Multon. "We need something in the law in black and white."
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Claire Gordon has contributed to Slate's DoubleX, the Huffington Post, and the book Prisons: Current Controversies. While an undergraduate at Yale University and a research fellow at Yale graduate school, she spoke on panels at Yale and Cornell, and reported from Cairo, Tokyo, and Berlin.
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