The LGBT Community Wins a Massive Victory: Transgender Americans Gain Protection Under Title VII

by Kyle Barton

The LGBT community has been fighting increasingly vigorously over the last couple of decades to secure itself as a protected class. In particular, Americans who identify themselves as “transgender” have been battling for an end to discrimination. On July 21, 2014, President Obama signed Executive Order 13672, prohibiting any federal contractors from discriminating against employees because of their gender identity.[1] On August 19, 2014, the U.S. Department of Labor further supplemented that Executive Order with a directive to include “gender identity and transgender status” within the class of “sex” for discrimination purposes.[2]

While a variety of people can fall into the category of transgender, the term is used generally to define a person whose appearance or behavior does not conform to common social or cultural stereotypes.[3] The transgender community represents a substantial portion of Americans who have been frequently subject to employment discrimination. A study conducted by the National Transgender Discrimination Survey reported that as of 2011, the rate of unemployment of transgender Americans was twice as high as unemployment throughout the rest of the nation.[4] Ninety percent of transgender Americans reported having been harassed, mistreated, or discriminated against at work.[5] Half of the respondents in the study had reported being fired, or denied a job or promotion, because of their transgender status.[6]

A study from 2011 revealed that 700,000 Americans identify themselves as transgender.[7] American society has gradually begun to recognize the transgender movement. Over the last few months, Facebook, for example, has made a number of changes to its interface to give transgender users gender-neutral options in their profiles.[8] These simple modifications have allowed members of the transgender community to appropriately portray their gender identities to the public, outside of the previous realm of strictly male or female.

This victory for expanded rights under Title VII stems from a decision in 2012 by the Equal Employment Opportunity Commission, where the issue made its first breakthrough in the legal field.[9] In this case, the EEOC drew a line between biological sex and gender identity.[10] The agency recognized that Title VII of the Civil Rights Act of 1964 must protect more than when an employer prefers a man over a woman or a woman over a man.[11] Instead, the agency opined that Title VII was meant to prevent the discrimination of the social and cultural characteristics that are associated with each gender.[12] Those who identify their gender as different from the characteristics of their biological sex must have protection under the law.[13]

Although the direct impact of the more expansive Title VII is on federal contractors and subcontractors, the call for attention to the transgender discrimination issue may cause other jurisdictions to follow suit. In time, we may also observe a transition in which American employers in the private sector begin to take a more sympathetic approach towards transgender employees.

[1] Further Amendments to Executive Order 11478, Equal Employment Opportunity in the Federal Government, and Executive Order 11246, Equal Employment Opportunity, 79 Fed. Reg. 42,971 (July 23, 2014), available at http://www.gpo.gov/fdsys/pkg/FR-2014-07-23/pdf/2014-17522.pdf.

[2] Office of Fed. Contract Compliance Programs, U.S. Dep’t of Labor, DIR 2014-02 (2014), http://www.dol.gov/ofccp/regs/compliance/directives/dir2014_02.html).

[3] Vic Munez et al., About Transgender People, Gender Identity, and Gender Expression 1 (2d ed. 2011), available at http://www.apa.org/topics/lgbt/transgender.aspx.

[4] Jaime Grant et al., Injustice at Every Turn: A Report of the National Transgender Discrimination Survey 3 (2011), available at http://transequality.org/PDFs/NTDS_Exec_Summary.pdf.

[5] Id.

[6] Id.

[7] Gates, Gary, How Many People are Lesbian, Gay, Bisexual, and Transgender? (The Williams Inst. 2011) http://williamsinstitute.law.ucla.edu/research/census-lgbt-demographics-studies/how-many-people-are-lesbian-gay-bisexual-and-transgender.

[8] Molloy, Parker, Facebook Adds Gender-Neutral Family Relationship Settings, ADVOCATE.COM, http://www.advocate.com/politics/transgender/2014/08/28/facebook-adds-gender-neutral-family-relationship-settings (last visited August 30, 2014).

[9] Macy, EEOC DOC 0120120821 (2012), available at http://www.eeoc.gov/decisions/0120120821%20Macy%20v%20DOJ%20ATF.txt.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

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