Praise: EEOC on Transgender Discrimination

Around 20 April 2012, the Equal Employment Opportunity Commission (EEOC) ruled that transgender discrimination is sex discrimination.

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:

• Discrimination by Type
  • Age
  • Disability
  • Equal Compensation
  • Genetic Information
  • National Origin
  • Pregnancy
  • Race/Color
  • Religion
  • Retaliation
  • Sex
  • Sexual Harassment

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.

Repudiation: PFOX Student Brochure

In early February, the group that calls itself Parents and Friends of Ex-Gays and Gays (PFOX) distributed about eight thousand flyers to Montgomery County Maryland high school students.  Here's the local ABC coverage



Last week Peter Sprigg, who serves on the board of PFOX and writes for the Family Research Council (FRC), a hate group as determined by the Southern Poverty Law Center, wrote an op-ed for the Washington Times defending this hateful and lie-filled propaganda.

The controversy arose not because of its relatively innocuous content, but because of its source: an organization called Parents and Friends of Ex-Gays and Gays, or PFOX. The flier states, “Every year, thousands of people with unwanted same-sex attractions make the personal decision to leave a gay identity,” and asserts that such people should be able to “seek help and information on overcoming their feelings.”

No, the controversy arose because of content that is anything but innocuous.  Let's go through the flyer and correct the lies.  The full flyer can be found at the PFOX website.

Parents and Friends of Ex-Gays & Gays (PFOX) promotes diversity for the ex-gay community.
Ex-gays demonstrate that those with unwanted same-sex attractions can seek help and
information on overcoming their feelings. All individuals deserve the right to self-determination
and happiness based on their own needs, and not the needs of others. PFOX supports tolerance.

The premise of people being ex-gay is flawed.  A person is straight, bisexual, gay, or perhaps asexual.  What one does sexually is healthy when it is aligned with their sexual orientation.  PFOX is encouraging young people to disregard their sexual orientation in favor of what PFOX considers normal.  The American Psychiatric Association published a brochure, Let's Talk Facts About Sexual Orientation which says:

The desire to change sexual orientation often is driven more by social stigma or religious concerns than by medical or mental health concerns. Some homosexual people are able to change their sexual behavior (albeit with great difficulty). A change in behavior, however, is only one aspect of homosexuality and does not imply that sexual orientation has changed, particularly if desire remains.

Back to the PFOX propaganda.

Who are ex-gays?

Every year thousands of people with unwanted same-sex attractions make the personal decision to leave a gay identity through non-judgemental environments or their own initiative. Their decision is one only they can make. However, there are those in society who refuse to respect an individual's right to self-determination. Consequently, formerly gay men and women are discriminated against simply because they dare to exist. Ex-gays and their supporters are denied equal access and support, forcing them to remain silent for fear of negative reactions and disapproval.

Let's be clear.  Someone who says that they are "ex-gay" is not going to be denied employment, housing, the services of businesses, a pay raise, or anything else for saying that they are formerly gay.  The only negative reactions that they are likely to encounter are when they endeavor to influence others to turn their backs on their natural sexual orientation.  It is only in response to evangelistic behavior that PFOX is ostracized.

But aren't some people born "gay"?

According to mainstream psychological associations, there are no replicated scientific studies to support that a person can be born "gay." No "gay gene" or gay center of the brain has been found. No medical test exists to determine if a person is homosexual. Sexual orientation is based on feelings and is a matter of self-affirmation and public declaration. Some teens are labeled "gay" or other names or other names even though they do not have same-sex attractions. Appearance is not a reliable means to know what another person feels. No one should be labeled based on the perception of others. Name calling is wrong because the victim may begin to believe what others tell them about themselves, which may be completely false labeling and cause gender confusion.

Back to the Let's Talk Facts brochure.

The causes of sexual orientation and homosexuality are unknown. Studies have suggested both genetic and nongenetic factors. Sexual attraction (whether gay or straight), in fact, might have several origins including genetic factors for some people, environmental factors for others, or some combinations of these factors for yet others. Most mental health professionals believe that sexual orientation is determined for most people early in life, or even before birth, and therefore is not chosen. No particular pattern or style of parenting has been shown to cause homosexuality.

So, it is true that there is no gay gene, but that does not mean that one isn't born gay (a word that does not need quotation marks around it).  Sexual orientation is not simply a set of feelings that are easily mutable and is not based upon public declaration.  That human sexuality is more complicated than can be explained by a single gene or synaptic cluster does not remove genetic factors.

PFOX is correct that appearance is not a valid indicator of sexuality.  Homosexuals, unless they are deliberately dressing for display, look like everyone else.  Most gays don't lisp and many people who do lisp are straight.

PFOX is wrong about why name calling is wrong.  It isn't just about whether someone begins to believe what is used as taunts, although that is one problem.  Name calling is wrong because it is intended to belittle and denigrate who a person is.  The truth, or lack thereof, of the taunt is not the point.  The point is to damage the self-esteem of the victim.  That is always wrong.

"Gender confusion" is not caused by name calling.  The correct term is transgender, which broadly refers to someone born with the wrong set of sexual organs.  The American Psychological Association has a great deal of information in Answers to your Questions About Transgender People, Gender Identity, and Gender Expression.  Here is a small section on how one knows if one is transgender.

Transgender people experience their transgender identity in a variety of ways and may become aware of their transgender identity at any age. Some can trace their transgender identities and feelings back to their earliest memories. They may have vague feelings of “not fitting in” with people of their assigned sex or specific wishes to be something other than their assigned sex. Others become aware of their transgender identities or begin to explore and experience gender-nonconforming attitudes and behaviors during adolescence or much later in life. Some embrace their transgender feelings, while others struggle with feelings of shame or confusion. Those who transition later in life may have struggled to fit in adequately as their assigned sex only to later face dissatisfaction with their lives. Some transgender people, transsexuals in particular, experience intense dissatisfaction with their sex assigned at birth, physical sex characteristics, or the gender role associated with that sex. These individuals often seek gender-affirming treatments.

Back to the PFOX propaganda.

If only one part of you has gay feelings, should your whole life be gay identified?

Many people would agree that just because one part of you feels a certain way, it doesn't mean your entire identity is that way. Having feelings of same-sex attraction may make you feel different. We all feel the need to fit in and be accepted. But no one should identify themselves based on sexual feelings alone. There is more to your identity than your sexual attractions. Thousands of ex-gay men and women had those very same feelings when they were in school. Get smart! Explore the origins of your same-sex attraction. Why do I have these feelings? Where do they come from? The decision of a prom date, a car, or whether to super-size those fries can be based on a feeling, but important decisions should not be made on feelings alone. In order to make an educated decision, you have to be informed! Sexuality develops over time. It isn't necessary to label yourself today.

As can be seen from the brochures of the American Psychiatric Association and the American Psychological Association, one's feelings are a reflection of who one is.  The purpose of PFOX is to encourage people to deny who they are.  Of course we are all more than our sexuality, but that is a crucial part of our identity as adolescents and as adults.

Telling teens to deny their feelings and deny their identity, implying that their feelings are less worthy than those of heterosexuals, is part of what leads to depression and teen suicides.  The American Academy of Pediatrics has studied the effects of the social environment on teen suicide.  PFOX is encouraging an environment that makes suicide more likely for LGBTQ youth.

When Peter Sprigg writes in his op-ed, "It is undeniable that some people experience same-sex attractions as unwanted" the part that he leaves off is that his organizations are creating the environment that makes people want to be rid of their natural feelings.  Mr. Sprigg complains, "The county curriculum on sexual orientation fails to even acknowledge that ex-homosexuals exist."  Ex-homosexuals do not exist.  One is gay, straight, or bi.  If one is gay and refrains from sexuality with others of the same gender, it does not change the fact that one is gay.  High school students, with the onset of adolescence, are just figuring out who they are; it is entirely inappropriate to be saddling them with guilt and encouraging them to deny feelings that are so new.

Mr. Sprigg and PFOX are wrong and their pamphlet is dangerous.