Gov. Gretchen Whitmer addressed the State of Michigan after a plan to kidnap her and other Michigan government officials was thwarted by state and federal law enforcement agencies. She started by saying thank you to law enforcement and FBI agents who participated in stopping this [...]
By Gwendolyn Ann Smith
If you happen to be transgender, then you have a reason to celebrate: the Equal Employment Opportunity Commission (EEOC) recently ruled that an employer who discriminates against a transgender job applicant or employee due said person’s gender identity is practicing sexual discrimination under Title VII of the Civil Rights Act of 1964. This, in a word, is huge.
Let me give a bit of background. The Civil Rights Act of 1964 was initially penned to stop discrimination against women and African Americans in this country. Specifically, it halted racial segregation in public accommodations, schools, and employment, while also putting an end to unequal requirements to vote between the races. It was a difficult bill to pass, when “Southern Bloc” senators, led by South Carolina’s Strom Thurmond, held a 54-day filibuster.
Title VII from the act prohibits discrimination on the basis of race, color, religion, sex, or national origin, as well as against any individual because of their association with another individual of a particular race, color, religion, sex, or national origin. It also prohibits discrimination against people in an interracial marriage.
Over the years since its passage, some of these classes have been expanded or interpreted in ways to fit their times. In the 1970s, for example, sexual harassment was determined to be included, and bills in 1967, 1978, and 1990 added pregnancy, age and disability to the covered protected classes under Title VII.
I should also add that it was in 1974 that the first attempt at adding “sexual orientation” to the Civil Rights Act of 1964 was tried. It failed. In 1994, a new bill came out, focusing specifically on employment rights. This bill, the Employment Non-Discrimination Act (ENDA), has been moving in and out of congress ever since, but has yet to reach the President’s desk.
Further, ENDA has been a hot button issue since 1994, with it’s initial lack of transgender inclusion, then, later, a history that sounds more like Lucy Van Pelt holding the football for Charlie Brown in the Peanuts comic: transgender people would be included, or promised to be, only to be dropped from the bill when it was considered politically expedient.
At this time, ENDA is nowhere. Congress is deadlocked on practically every bill that reaches the floor, and a “hot button” bill like this is simply not going to fly during an election year. President Obama, who did pledge to sign ENDA if it reached his desk, has nevertheless decided not to sign an executive order that would have banned discrimination against gay, lesbian, bisexual and transgender individuals who worked with or aspired to work with federal contractors.
Yet now, in the midst of all the doom-and-gloom about President Obama not signing an Executive Order, with an ENDA that is clearly not going to happen in the short term regardless whether it is inclusive of transgender individuals, we see this ray of hope from the EEOC. No, not a simple ray of hope: more like a 2,000,000,000 candlepower searchlight.
The ruling was a simple one: a transgender woman, Mia Macy, applied to work with the Department of Alcohol, Tobacco, Firearms, and Explosives. After a background check laid bare the details of her transition, she was informed that the position was “no longer available.” The ATF later hired another, non-transgender person for the position.
This is not the first ruling that works in our favor: the 1989 Price Waterhouse c. Hopkins added gender discrimination to the definition of “Sex” under Title VII. It also barred “sex stereotyping,” the requirement that employees match common stereotypes of their gender, such a women wearing skirts and heels to work. Price Waterhouse has been used in many cases for transgender people – but the Macy case comes with a greater visibility thanks in large part to the EEOCs decision. Further, while the EEOC have previously ruled to the contrary, the Commission has essentially overturned those decisions with the Macy ruling.
The decision in Macy v. Bureau of Alcohol, Tobacco, Firearms and Explosives may finally turn the tide from Ulane v. Eastern Airlines in 1980. That case – a transsexual pilot who was terminated due to her transition – was also tried based on the Civil Rights Act of 1964. She won, only to have the case overturned on appeal in 1985.
This, coupled with other, similar cases, builds a growing library of case law for transgender workplace protections under Title VII of the Civil Rights Act of 1964 as well as the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution. These, in turn, will likely lead to similar victories, and even more case law, largely cementing transgender protections under Title VII.
It is, nevertheless, not perfect. It is just as likely that a later EEOC could make another 180 degree turn, perhaps under a future LGBT hostile administration. Or something else could come down the line, akin to recent attempts to allow “religious exemptions” for employers and others to legally discriminate. In short, this does not protect all as well as the passage of a fully inclusive ENDA would.
That said, this is a moment to celebrate. It is another step forward towards preserving the rights of Americans regardless of their gender identity or expression. This is a decision beyond federal employees and federal contractors, and can affect us all. It can indeed lead to a sea change in policies in companies all across the U.S., and the ability to challenge those who refuse to provide equal rights to their transgender employees or applicants.
It is good news for all of us.