Transgender discrimination is probably one of the most misunderstood areas of discrimination law, by lawyers, the courts, and companies.

Alex. Girl or boy?

Alex. Girl or boy?

Recently, I got into a discussion about whether or not transgender people are protected under discrimination laws.

The short answer is that Federal EEO law does not recognize being transgender as a protected class. But the EEOC has expressly found that transgender discrimination is illegal under federal law when the discrimination is based on gender stereotypes – the idea that a male should dress, speak and act “like a man” because he is biologically male, or that a woman should dress, speak and act a woman because she is biologically female.

The Supreme Court recognized gender stereotype discrimination in Price Waterhouse v. Hopkins, where a woman accountant was denied partnership even though everyone agreed she was very talented and an asset to the firm. Her clients loved her. The problem was her personality as described by her colleagues. Some said she was abrasive, overly aggressive, impatient, and unduly harsh. (Sounds familiar. I’ve been described that way too. “Bitch” may also have been used.)

They might have gotten away with that, but the comments that she was “macho,” needed “a course in charm school,” and should “walk more femininely, talk more femininely, dress more femininely, wear make-up, and have her hair styled” indicated that she was probably being passed up because she was a woman who did not “act like a woman.” The Supreme Court found that this is a form of gender discrimination based on gender stereotypes.

The very definition of transgender includes the concept that the person does not appear or act like the gender whose body they have. The American Psychological Association describes transgender as:

Transgender is an umbrella term for persons whose gender identity, gender expression or behavior does not conform to that typically associated with the sex to which they were assigned at birth. Gender identity refers to a person’s internal sense of being male, female or something else; gender expression refers to the way a person communicates gender identity to others through behavior, clothing, hairstyles, voice or body characteristics.

This sounds exactly like the issue in Price Waterhouse, except that there was no issue of transgender identity, i.e. Ms. Hopkins never claimed that she identified as being a man, even though she was born a woman.

So what’s the problem with transgender discrimination?

When you look at the cases where courts have held that there is no employment discrimination protection for transgender people, it’s clear that the courts are confused about what transgender is and what’s going on.

For example, a recent Texas federal court case involved a female truck driver who identified as male. He dealt with comments about being transgender including “Who hired That‽” and discussions about how the company could not hire a transgender driving instructor. The court explained that although gender stereotyping is illegal under Title VII, “courts have been reluctant to extend the sex stereotyping theory to cover circumstances where the plaintiff is discriminated against because the plaintiff’s status as a transgender man or woman, without any additional evidence related to gender stereotype non-conformity.”

They found there was no discrimination because: “All of the testimony that (the employee) has presented related to (the company’s) animus couches (the company’s) alleged discrimination in terms specifically related to (the employee’s) status as a transgender person, not in terms related to her conformance with gender stereotypes.”

What‽

If the essential meaning of transgender is that the person does not conform to stereotypes about the person’s gender, then all transgender discrimination is, by definition, gender stereotype discrimination.

Even more straight forward is that transgender is the ultimate form of gender discrimination. Gender discrimination is illegal when the employer made an adverse employment discrimination because of the person’s gender. It does not just mean because the employee was a woman. It could be that it was because the person was a man, or not a man, or not a woman, or used to be a man or a woman, or identifies as a man or as a woman. This is fundamentally what “gender” is all about. So if an employer discriminates against someone because they are transgender, it’s because the employer does not understand the employee’s gender. And employment decision based on the fact that a person is transgender could not be more squarely “because of gender.”

Part of the problem is that many people confuse gender identity with sexual orientation. Sexual orientation is not a protected class under Federal discrimination law either, but again, the EEOC will find that gay employees can be protected when the discrimination is based on nonconformance with gender stereotypes. It appears the courts just start with the whole gender stereotype analysis and completely miss that the fact that your gender identity is not the same as the gender of people you are sexually attracted to.

The American Psychological Association explains how sexual orientation and gender identity are different:

Gender identity and sexual orientation are not the same. Sexual orientation refers to an individual’s enduring physical, romantic, and/or emotional attraction to another person, whereas gender identity refers to one’s internal sense of being male, female, or something else. Transgender people may be straight, lesbian, gay, bisexual, or asexual, just as nontransgender people can be. 

So the Federal Courts have it wrong, terribly wrong. Transgender discrimination is always gender discrimination.

For a great discussion of current Federal law relating to claims of transgender discrimination, read Philadelphia employment lawyer, Eric B. Meyer’s post: Saks claims transgender discrimination is legal. And here’s why they’re probably right.

My personal, cynical, and completely sexist opinion is that the legal profession, especially the courts, is predominantly white men who believe that anyone they want to have sex with is probably protected, and anyone they would be afraid to have sex with should not be. Sure. It’s a gender stereotype, and if I refused to hire white guys, I’d be in trouble because, well, race and gender discrimination is illegal.  Feel free to tell me why I’m wrong. I’m genuinely interested in other points of view.

In the meantime, here are some resources from the Transgender Law and Policy Institute on the states and local laws where transgender is expressly a protected class for some or all forms of discrimination.



 
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Joe Gerstandt, HRExaminer Editorial Advisory Board Contributor.
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