The Equal Employment Opportunity Commission (EEOC) recently issued a decision stating that discrimination based on transgender status or gender identity constitutes sex discrimination under Title VII. The decision allows transgendered individuals to file workplace discrimination charges with the EEOC.Joanna Grossman provides an excellent analysis at Justia. In part, she wrote
In a recent adjudication, the EEOC concluded that discrimination against a transgendered individual is sex discrimination. To many readers, this conclusion may seem obvious, but in fact, most courts that have considered the anti-discrimination rights of transgendered employees have taken a narrower approach.
Under that narrower approach, transgender discrimination is only actionable if the employer acted on sex stereotypes to punish gender non-conformity. But the EEOC takes the position that any sort of transgender discrimination is sex discrimination, because it inherently involves taking gender—and therefore sex—into account. This is true even if the employer takes an action that simply reflects animus against transgender individuals or a desire to exclude them from the workplace, rather than a concern, specifically, about gender non-conformity.In her article, Ms. Grossman gives a good description of the case.
The case that led the EEOC to reach its result is that of Mia Macy, a transgender woman who worked as a police detective in Phoenix. In 2010, she relocated to San Francisco and began seeking employment. At the time of the move, Mia was still presenting as a man, but had plans to transition to a female identity. Her supervisor in Phoenix told her that the federal Bureau of Alcohol, Tobacco, Firearms and Explosives had an opening for a ballistics expert in a crime laboratory near San Francisco, for which she was well-qualified.
Macy spoke with the Director in that office by telephone around January 2011 about her credentials for the position, as well as the position’s salary and benefits. According to Macy, the Director told Macy that she would get the position so long as no problems were identified in her background check, and that the position would be filled via a staffing firm, Aspen of DC. After that initial conversation, there were a variety of back-and-forths among Macy, the Director, and Aspen, during which time her background check was underway.
On March 29, 2011, Macy informed Aspen via e-mail that she was in the process of transitioning from male to female and asked Aspen to share this information with the Director. On April 3, Aspen informed Macy that the information about her gender transition had been passed along to the Director. Five days later, Macy received an e-mail from the staffing firm stating that, due to federal budget reductions, the position in the ATF lab was no longer available.
On May 10, 2011, Macy contacted an EEO counselor within the federal government to discuss her concerns. The counselor revealed that, in fact, the lab had not cut the position, but instead had filled it with someone else.
On June 13, 2011, Macy filed a formal discrimination complaint with the federal agency at issue, ATF. On a preprinted form, she checked off “sex” and “female,” and typed in “gender identity” and “sex stereotyping” as the basis for the complaint. In a narrative portion of the form, she wrote that she was not hired on the basis of “my sex, gender identity (transgender woman) and on the basis of sex stereotyping.”So this discrimination is complicated with lies and an apparent attempt to bury the discrimination in time and paperwork. Not a big surprise, but still disappointing in the twenty-first century. Also not a surprise is backlash from the usual bigots. Fox News quotes one notorious hater.
Peter Sprigg, senior fellow for policy studies at the Washington-based Family Research Council, said the EEOC's decision is misinterpreting Title VII of the Civil Rights Act.
"Those who are discriminated against because they are transgender are not discriminated because they are male or female, it is because they are pretending to be the opposite of what they really are, which is quite a different matter," he said.Mr. Sprigg is, no surprise at all, wrong when he characterizes those who are transgender as "pretending to be the opposite of what they really are." To understand what transgender people are, let's look at the glossary of the 2011 edition of Transgender Standards of Care.
Transgender: Adjective to describe a diverse group of individuals who cross or transcend culturally defined categories of gender. The gender identity of transgender people differs to varying degrees from the sex they were assigned at birth (Bockting, 1999).There is nothing about pretending in this description. One's identity is not what one pretends to be but who one intrinsically is. If the discussion was of actors, then Mr. Sprigg would have a valid point. It is not.
And we also have a response from prolific liar Eugene Delgaudio, via e-mail.
A major plank in the Gay Bill of Special Rights has just been enacted by Federal bureaucratic decree!
That’s right -- the Homosexual Lobby has found a way around the Constitution and the U.S. Congress to give special employments privileges to transsexuals.
Just a few days ago, the Equal Employment Opportunity Commission (EEOC) decided to redefine the rules already on the books to make it nearly impossible for any employers to ever turn down or fire a transsexual person.Of course there is no "Gay Bill of Special Rights" and there are no "special employments privileges to transsexuals" and it is not "nearly impossible for any employers to ever turn down or fire a transsexual person."
In particular, someone who is transgender (what Mr. Delgaudio calls transsexual) can be fired for cause. Being transgender is not cause.
The EEOC has taken an important step. While no one is ever guaranteed employment, who one is should not be a deciding factor. On the home page for the EEOC, the categories for discrimination are:
Still missing is protection by the EEOC from discrimination because of sexual orientation.
The U.S. Equal Employment Opportunity Commission (EEOC) does not enforce laws that prohibit discrimination and harassment based on sexual orientation, status as a parent, marital status and political affiliation. However, other federal agencies and many states and municipalities do.Organizations like Mr. Sprigg's Family Research Council and Mr. Delgaudio's Public Advocate are working on the federal, state, and local levels against laws that prohibit discrimination based on sexual orientation. It is important that we raise all American citizens to first class status by barring such discrimination.
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