Should transgendered and transsexual individuals be protected by employment discrimination laws?

Yes

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by Natalie Case

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Gender is, by and large, a construct of the society in which we live. It is a perceived set of norms that we have arrived at over time, based on the collective experience, culture, needs and desires of those that have shaped that society.

Gender roles can vary from society to society and from generation to generation. One need look no further than fifty to sixty years ago to see the truth in that. Fifty to sixty years ago, the workplace was the domain of men. If women worked, it was in specifically female roles.

Discrimination against women, when that began to change, was widespread and normal.

It wasn't based on anything substantial, such as intelligence or skills or training. Discrimination was based on gender, on nothing more than the biological difference between men and women. Over time, we, as a society came to recognize that this kind of discrimination was not only wrong, but it did a disservice to our entire society, not just the women involved.

For one thing, there was the matter of talent. Slowly we discovered that some of those women we were not hiring, not promoting, not letting out of the Steno-Pool, were talented leaders, brilliant business people, inspired idea creators. For another, there was the increasing divorce rate, that left the working mother trying to support a household on the meager pay of whatever job she could find. Denying that woman the right to support herself and her family meant greater numbers of people enrolled on welfare programs.

It took us a while to realize our outdated norms needed retrofitting, but eventually we figured out that discriminating against someone based on their body structure was stupid, wrong, and ultimately self destructive. Title VII of the Civil Rights Act of 1964 makes it illegal for any employer to discriminate in any way against any person based on their race, color, religion, sex or national origin.

Currently there is no State or Federal law that explicitly prohibits discrimination of transgendered or transsexual individuals, although there are some localities (cities and counties) that have enacted laws to expressly forbid such discrimination. California in particular has at least four such locations; San Francisco, City and County of Santa Cruz and West Hollywood, according to http://www.transgend erlaw.org.

The interpretation of Title VII has, in the past, not included transgendered people. See Ulane v. Eastern Airlines, Inc., 742 F.2d 1081 (7th Cir. 1984), 471 U.S. 1017 (1985), which held that the words of Title VII do not outlaw discrimination against a person who has a sexual identity disorder, i.e., a person born with a female body who believes herself to be a male. Somers v. Budgets Marketing, 667 F.2d 748 (8th Cir. 1982) and Holloway v. Arthur Andersen & Co., 566 F.2d 659 (9th Cir. 1977) has similar findings.

However, more recent court cases have started to see a turning of this particular tide. This reflects the changing society we live in and the ever slow to adjust set or social norms that define our lives. In California, the 9th Circuit found that the "initial judicial approach taken in such cases as Holloway has been overruled by the logic and language of Price Waterhouse" (Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000).

The reference to Price Waterhouse goes to the Supreme Court decision in Price Waterhouse v. Hopkins, 490 U.S. 228, 104 L. Ed. 2d 268, 109 S. Ct. 1775 in 1989 which determined that discrimination for failure to conform to gender stereotypes is not permissible under Title VII. The language of Title VII is increasingly being interpreted this way, thus affording at least some protection to transgendered/transs exual individuals.

However, no interpretation would be necessary if the language was updated to reflect this intrepration, making it expressly illegal to discriminate based on gender identity.

Of course, this only addresses the legal issues, and only in the most drastic of situations, when someone is willing to actually take a situation to court. The day to day issues are more complicated, more personal and ultimately more important.

A person should have the right and the ability to support him or herself, regardless of gender, perceived or biological. The way a person chooses to dress, the way they live outside of their employment, the people they associate with, the partners they choose to share their lives with, none of these things should affect that right. What should matter in employment is the ability to do the job.

When discrimination causes the loss of a job, or a promotion, or makes work-life unbearable, it affects all of us. Discrimination marginalizes someone that is perceived as "different". It affects their view of themselves, contributes to depression and their ability to be a contributing member of society. It impacts their ability to pay their bills, to care for their health, their children, their home.

We are a lesser people when we allow our society to marginalize even one person.

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