ENDA, Title VII, and Transgender Rights

BY ARTHUR S. LEONARD | The long-stalled Employment Non-Discrimination Act (ENDA), which won approval by a US Senate committee this summer, may get a vote by the full Senate later this year, though few advocates are holding out hope that the House would follow suit –– at least as long as the Republicans retain control. As the push for ENDA continues, it is worth considering what protections may already exist under the 1964 Civil Rights Act –– particularly with respect to that law’s prohibition on discrimination based on sex.

From the earliest days after enactment of the Civil Rights Act’s Title VII –– which outlawed discrimination in a number of areas, including employment discrimination by companies with 15 or more employees because of an individual’s race or color, religion, national origin, or sex –– the Equal Employment Opportunity Commission (EEOC), established to enforce those provisions, and the federal courts agreed the prohibition on bias based on sex did not forbid discrimination because of a person’s sexual orientation or gender identity.

As stalled federal employment bill moves toward Senate action, what gender identity protections already exist?

In 1964, of course, issues of anti-gay and anti-transgender discrimination were not on Congress’ radar . In fact, the Civil Rights Act’s sponsors initially held back from including “sex” as a prohibited ground for discrimination at all, fearing that would make the bill even more controversial than it already was.

Only when a conservative Democrat tried to introduce a poison pill amendment adding sex as a prohibited ground in order to kill the whole bill did liberals embrace that provision, having done their head count and recognized that the more inclusive measure would prevail. The congressional debate included no reference to whether the broader protections would apply to “homosexuals” or other “sexual deviants,” as the discourse at that time would have identified LGBT Americans.

Interpretation of Title VII’s sex discrimination provisions changed dramatically in 1989, when the Supreme Court ruled in favor of a straight woman denied partnership at Price Waterhouse whose lawsuit demonstrated that some partners objected to her candidacy because she was not “feminine” enough to suit their image of a “lady partner.” Her boss told her she needed to wear makeup and jewelry, dress more femininely, and tone down her personal style, which included acting like a drill sergeant in riding her subordinates to get projects done, which was why clients loved her. Justice William J. Brennan wrote that when an employer relied on gender stereotypes in evaluating an employee for promotion, that was evidence of sex discrimination.

Federal courts began to change their tune, interpreting Title VII and other federal statutes banning sex discrimination as providing protection for people who encounter difficulties because they fail to meet society’s stereotypes about how men and women should present themselves. These “gender nonconformity” cases tended to arise amidst claims of sexual harassment, and gay and transgender employees who encountered difficulties raised such claims. After some initial hesitation, the courts and the EEOC started to rule in their favor.

By the turn of the century, the proposition that harassment based on gender stereotyping was discrimination was well established and some courts began to take the next step, presuming that a transgender employee’s discrimination complaint by necessity incorporates a gender stereotyping claim covered by Title VII. A desire to “change sex” was, by definition, a failure to comport with gender stereotypes, in the view of such courts.

The major breakthrough in this regard came in 2004, when the Sixth Circuit Court of Appeals in Cincinnati overturned a district court decision and ruled in favor of Jimmie Smith, a city firefighter hired as a male who was fired after letting it be known she was transitioning. The court found that gender identity claims come within the theory of gender stereotyping, covered by Title VII, as it had developed since the Price Waterhouse case. The Supreme Court declined to review another Sixth Circuit case that reached a similar conclusion about a transgender firefighter’s discrimination claim.

Two years ago, Atlanta’s 11th Circuit Court of Appeals ruled that the Georgia General Assembly violated the 14th Amendment equal protection rights of a transgender woman it fired after she disclosed she was transitioning from the male gender identity she had since birth. Last year, the EECO ruled that a transgender woman’s claim of discrimination as an applicant for federal employment, if the facts were proven, would constitute a violation of Title VII. The EEOC cited the rulings from the Sixth and 11th Circuits as well as other federal court cases. A few weeks ago, the Justice Department’s internal appellate body approved the EEOC’s reasoning and found that denying the applicant her job violated federal law.

First introduced in 1993, ENDA represented a narrowing of a two-decades long effort to amend Title VII and other federal civil rights laws to add “sexual preference” to the list of prohibited grounds of discrimination in employment and other areas as well. Despite this scaled-back goal, the measure failed to pass either house of Congress until 2007. That year, Massachusetts Democratic Representative Barney Frank introduced a version of ENDA that for the first time included protections based on gender identity as well as sexual orientation. However, after canvassing his colleagues, Frank decided to eliminate the gender identity language, even in the face of fierce opposition from many leading LGBT groups –– the Human Rights Campaign excepted. The bill passed the House narrowly, but never got a vote in the Senate.

Despite large Democratic majorities in both houses of Congress during President Barack Obama’s first two years in office, ENDA, to which the gender identity language has been restored, never received another vote after 2007. Since the last time Congress took up ENDA, the EEOC, the Justice Department, and an increasing number of federal courts have joined the Sixth Circuit Court of Appeals in adopting the view that gender identity discrimination is forbidden by Title VII under the ban on sex discrimination. Employers should be aware they have an obligation under federal law to treat transgender job applicants and employees fairly. Some advocates are now arguing that pressing the case for ENDA should not get in the way of educating both employers and members of the transgender community about the rights and protections already available.

Still, court and administrative interpretations can change over time and are often not as well understood by the public as are new laws, which may receive wider media attention. Most LGBT advocacy groups maintain that it is vital to enact ENDA with gender identity language in place so that the protections are enshrined in statute in a more permanent way that would be binding on courts and employers without question.

Ironically, freedom from employment discrimination based on gender identity, until recently seen as the heavier lift politically than that based on sexual orientation, has advanced more rapidly in the courts and federal agencies. That advance might well help de-stigmatize the issue when Congress finally gets around to considering ENDA seriously