BY JAY KAPLAN
Last week, a Republican-sponsored bill was introduced that would amend our state’s Elliott-Larsen Civil Rights Act to prohibit discrimination against some members of the LGBT community. The proposed bill covers sexual orientation — but leaves out gender identity and expression.
The response from the LGBT community and Michigan’s business community was pretty much unanimous: No deal. We won’t support a bill that protects some of our community yet singles out transgender people for discrimination.
There are some, including state House Speaker Jase Bolger, who have suggested that transgender people don’t need state protection from discrimination because there are legal rulings that protect them. Let’s take a closer look at that assertion.
It is true that some federal courts, including the 6th Circuit that covers Michigan, have held that discrimination against transgender people in factual situations involving gender stereotypes (not conforming to “traditional” notions of how someone born biologically male or female should behave) may constitute sex discrimination in violation of Title VII of the U.S. Civil Rights Act. However, there is not uniform consensus on that theory within the federal courts. The United States Supreme Court, which has final legal authority on this issue, has yet to address it.
It should also be noted that the Title VII sex discrimination theory applies only to employers with 15 or more employees. This leaves out the remaining 85 percent of the American workforce that is employed by smaller businesses. Furthermore, a Title VII claim is only available for employment claims, leaving transgender persons unprotected from discrimination in public accommodations and housing. Michigan courts have never addressed the issue of whether transgender discrimination is actionable under Elliott-Larsen, as is sex discrimination.
Finally, gay, lesbian and bisexual individuals who are not transgender are often subjected to unfair treatment based on their failure to conform to traditional gender stereotypes. Omitting gender identity and expression creates a loophole for discrimination against LGBT people. Including gender identity and expression in the bill helps to ensure that people of all sexual orientations and gender identities are protected from discrimination based on expectations of what a person “should” look or act like.
From my experience as staff attorney for the ACLU of Michigan’s LGBT Project, I can state that the largest number of discrimination complaints we receive come from the transgender community. This is consistent with national statistics. According to a survey conducted by the National Gay and Lesbian Task Force and the National Center for Transgender Equality, 90 percent of transgender people report experiencing harassment, mistreatment or discrimination on the job. Forty-seven percent report an adverse job outcome, such as being fired, not hired or being denied a promotion because of their gender identity and expression. Twenty percent report having been refused a home or apartment, and 11 percent report being evicted. Fifty-three percent report being harassed or disrespected in a place of public accommodation including hotels, restaurants, buses, airports and government agencies.
Clearly, Michigan needs a law that addresses this kind of pervasive discrimination.
Some ask, “Why fight over the issue of gender identity?” Just settle for including sexual orientation, they argue, because something is better than nothing. However, if Michigan is serious about treating the LGBT people fairly, how we can leave out an integral part of our community? How can we say that some members of our community deserve protections, while others can be discriminated against?
In truth, that “something” would mean nothing.
The majority of states and Michigan communities with non-discrimination laws protecting LGBT people include gender identity — and so do most companies that have non-discrimination policies Because it demonstrates a full commitment to the idea that our community is to be treated with fairness and dignity. Because it is the only acceptable language for an LGBT-inclusive civil rights law.
Because it is the right thing to do.