Time & Attendance
By James Walsh
Mar. 6, 2011
Gender identity has become the most controversial flashpoint in the continuing debate over national employment protections for gay, lesbian, bisexual and transgender workers.
The latest version of the Employment Non-Discrimination Act, expected to be introduced this year, is likely to include both sexual orientation and gender identity, unlike some past iterations of the federal bill. But including transgenders will likely stir up more intense opposition and make ENDA’s passage more uncertain.
“We are now beginning to get our heads around sexual orientation, but gender identity issues and changing pronouns is something our opposition is very good at taking and creating an atmosphere of fear around,” says Selisse Berry, founding executive director of the not-for-profit Out & Equal Workplace Advocates.
There are no official estimates on the number of transgender employees in the workplace, but, for point of reference, the Human Rights Campaign cites one study from JPMorgan Chase & Co. that found about 0.2 percent of its 160,000 workers identified themselves as transgender.
Recent research indicates that the workplace is especially treacherous for transgender employees. According to a 2011 national report on transgender workers by the National Gay and Lesbian Taskforce and the National Center for Transgender Equality, 90 percent of those surveyed reported experiencing harassment or mistreatment on the job or taking actions to avoid such treatment. Nearly half of all respondents said they had been fired, not hired, or denied a promotion because of their gender identity.
Some people are taking legal action against what they consider unfair firings. In 2008, Vandy Beth Glenn, a legislative editor with the Georgia General Assembly’s Office of Legislative Counsel, says she approached her supervisor about a male-to-female transition and ended up losing her job. The civil rights organization Lambda Legal subsequently filed a lawsuit on Glenn’s behalf claiming her former employer had violated the Constitution’s equal protections laws prohibiting sex discrimination. The U.S. District Court in Atlanta ruled in favor of Glenn, but the state has appealed the case to the 11th Circuit Court of Appeals, says Gregory Nevins, Glenn’s legal counsel and a Lambda Legal senior staff attorney. Sewell Brumby the assembly’s legislative counsel, declined to comment. Brumby who fired Glenn, according to the lawsuit, is one of the defendants named in the case.
To keep their jobs, transgender employees say they sometimes have to choose between self-expression and what employers consider acceptable. “I often have to make the choice between feeling comfortable personally and feeling comfortable professionally,” says a female transgender employee at a software firm in Chicago. “I guess I dress feminine even though it’s not my preference because I’m afraid of what the consequences would be for me.”
The woman, who asked to remain anonymous, sees career challenges ahead. “I would like to be in a client-facing situation eventually in a business-to-business environment,” she says, “but I just feel like my company would not trust me with that responsibility if I’m dressing gender variantly.”
Currently, only 12 states and the District of Columbia prohibit employment discrimination based on gender identity for all employees, both public and private. A few states extend gender identity protections to public employees only. The rest of the country is governed by a mosaic of city and county nondiscrimination laws, making it difficult for some transgender individuals and their employers to understand their protections.
Although public and private transgender workers in any state can file lawsuits for wrongful termination under Title VII of the Civil Rights Act of 1964, conflicting court rulings in different parts of the country have created a patchwork quilt of interpretations, says Jillian Weiss, an associate professor of law and society at Ramapo College of New Jersey, who, herself, is transgender.
“The importance of ENDA is that it makes it clear to everybody you don’t need to know the gender stereotyping theory of Title 7, you don’t have to look through a lot of books and find out whether it applies or not,” says Nevins. “What you really want is a clear statement that says this kind of discrimination is not permissible and that employers should not engage in it in the first place.”
Meanwhile, corporate America is pre-empting Congress in promoting transgender-inclusive work environments. According to the Human Rights Campaign, as of 2009, 69 percent of Fortune 100 companies and 41 percent of the Fortune 500 had gender identity and expression nondiscrimination policies.
Weiss believes the addition of gender identity to ENDA in 2007 and 2009 helped alter perceptions of transgender employees. “Attempts in trying to move legislation forward, despite the fact it was unsuccessful, nonetheless created a tremendous amount of awareness, particularly in the political and business communities,” she says. “I think they began to realize that [the transgender community] is not the boogeyman that some of the fringe, anti-gay forces are trying to make it.”
With their own anti-discrimination policies in place, companies are beginning to act as advocates themselves for the transgender workforce. “In 2009, we officially added gender reassignment surgery as a benefit to our employees, but with that we also began to offer it to any contracting companies that choose to have it as part of their benefits package,” says Matt Luginbuhl, an employee resource group diversity specialist at the health insurer Aetna. “So, by providing this service, we’re not only acting good on our own internal employees but also on businesses across the country.”
While ENDA could be stymied by a conservative-leaning Congress in 2011, Weiss remains optimistic about progress on the state and municipal levels. “I am very confident that the number of states and municipalities that will be obtaining transgender employment protections over the next five years will be significant,” she says. “If you come to a legislator in a particular state and say, ‘We are advocating for transgender employment protections,’ you can point to several major employers and states that already have these protections in place.”
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