Equal Opportunity for Transgender People September 12, National Equal Opportunity Professional Development Forum Presenter: Lisa Mottet

Presenter Lisa Mottet, Esq. Legislative Lawyer, Transgender Civil Rights Project National Gay and Lesbian Task Force

Agenda 1.Welcome and Overview 2.Transgender 101 in the Workplace 3.Nondiscrimination Laws 4.Nondiscriminatory Workplace Policies 5.Questions/Comments

Overview Session Objectives  Understand what issues you may face as and EO professional working with transgender employees, applicants, and trainees  Understand the law with regard to transgender people in the workplace  Understand policies that will ensure that transgender people are treated in a nondiscriminatory manner

Defining Terms Transgender is an “umbrella” term used to describe a wide range of identities and experiences, and is used to refer to many types of people, including transsexual people; crossdressers; androgynous people; genderqueers; and other gender non- conforming people whose appearance or characteristics are perceived to be gender atypical. In its broadest sense, “transgender” encompasses anyone whose identity or behavior falls outside stereotypical gender expectations.

Gender Identity or Expression Gender identity  One’s internal feeling of being male or female or something along those lines Gender expression  social and behavioral characteristics culturally associated with maleness and femaleness

Gender Transition Gender transition is the process by which transgender people move towards living in the gender they identify as.  Some have medical treatment, most do not  Identification documents are not always changed Gender transition at work happens in different ways.  Common to tell one’s supervisor first and develop a timeline  Others start presenting in a more masculine or feminine way and coworkers notice Transgender experiences are different, but often very difficult.  Depending on a person’s economic and other resources, discrimination against them can cause a spiral of other problems.

Sexual Orientation and Gender Identity/Expression are Different Sexual orientation refers to the relative genders of the partners heterosexual gay or lesbian bisexual Transgender people can have any sexual orientation Transgender is not a sexual orientation, it is a gender identity

Relevant Discrimination Laws Case law  Federal: Title VII’s and Title IX’s sex discrimination prohibitions  State: sex and disability discrimination prohibitions Clear statues with gender identity/expression :  State: 13 states and the District of Columbia  Local: 92 cities and counties  Overall, 37% of the population of the US lives in a jurisdiction with clear statutory protections for transgender people

Federal Laws Title VII of the Civil Rights Act of 1964 Title IX of the Education Amendments of 1972 Case law interpreting “sex” is primarily under Title VII, however, courts import Title VII analysis into Title IX, therefore it is wise to assume the same interpretations will apply under Title IX

Title VII Case Law Courts rejected claims by transgender plaintiffs in the 1970s and 1980s Price Waterhouse v. Hopkins (1989 Supreme Court case) recognized “sex stereotyping” claims; and Oncale v. Sundowner Offshore Services recognized a plain language interpretation of sex discrimination Gradually, federal courts have recognized that transgender people can bring complaints either as “sex stereotyping” claims or as plain sex discrimination Federal courts are now mixed, but there have been two strong wins in the last couple of years

Title VII Case Law, continued Smith v. City of Salem A firefighter living as a male (but intending to transition to female imminently) was harassed by coworkers for her increasingly feminine appearance. After speaking with a supervisor about the harassment and her intention to transition, she was suspended from work. Relying on Price Waterhouse, the 6 th Circuit held that discrimination on the basis of Smith’s feminine appearance was illegal sex stereotyping. The court, referring to cases in the 70s and 80s that interpreted Title VII less inclusively, explained that the approach taken in those cases “has been eviscerated by Price Waterhouse.” 378 F.3d 566 (6th Cir. 2004)

Title VII Case Law, continued Schroer v. Billington Diane Schroer was offered a job as a terrorism analyst at the Library of Congress. She interviewed as Dave because she hadn’t formally transitioned from male-to-female. After getting the offer, she asked her new boss if she could start work as a woman to make a clean transition. The job offer was revoked, with the employer saying she wasn’t a “good fit” and she sued. The D.C. Circuit denied a motion to dismiss explaining that she may be the victim of sex discrimination. 424 F. Supp. 2d 203 (D.D.C. 2006).

State Case and Administrative Law A New York court held that transsexuals were protected under New York State laws banning sex discrimination. Rentos v. Oce-Office Systems, 1996 W.L (S.D.N.Y. 1996) The Connecticut Commission on Human Rights and Opportunities made a declaratory ruling that Connecticut state laws banning sex discrimination also protect transgender individuals. Commission on Human Rights and Opportunities: Declaratory ruling on behalf of John/Jane Doe. Courts or administrative agencies in several states have now ruled that existing state laws banning sex or disability discrimination protect transgender people:

State Case and Admin. Law, continued In Massachusetts, a trial court issued an injunction against a school, ordering the school to allow a male-to-female transgender youth to dress in female attire. Doe v. Yunits, 2000 Mass. Super. LEXIS 491, 18. In an administrative ruling, the Massachusetts Commission Against Discrimination held that, unlike the federal ADA, the Massachusetts law on disability discrimination does not exclude transsexuality from coverage. Jette v. Honey Farms Mini Market, 2001 Mass. Comm. Discrim. Lexis 50. In Florida, an administrative agency ruled that a transgender corrections officer was protected under the state’s disability anti- discrimination law and that the absence of transsexualism was not a bona fide occupational qualification for a corrections officer. Smith v. Jacksonville Correctional Institution, 1991 Fla. Div. Adm. Hear. LEXIS 5990.

Clear Statutory Provisions: States California Colorado** D.C Hawaii # Illinois Iowa** Maine Minnesota New Jersey New Mexico Oregon** Rhode Island Vermont** Washington ** Protections added in Oregon’s goes into effect in # Hawaii’s law covers housing and public accommodations only

Examples of State Statutory Language Rhode Island Gen. Laws § (l): The term “gender identity or expression” includes a person’s actual or perceived gender, as well as a person’s gender identity, gender-related self image, gender-related appearance, or gender-related expression; whether or not that gender identity, gender-related self image, gender-related appearance, or gender-related expression is different from that traditionally associated with the person’s sex at birth. D.C. Code § (12A)"Gender identity or expression" means a gender-related identity, appearance, expression, or behavior of an individual, regardless of the individual's assigned sex at birth. Maine ST T. 5 § 4553(9-C): “Sexual orientation” means a person’s actual or perceived heterosexuality, bisexuality, homosexuality or gender identity or expression.

Clear Statutory Provisions: Local 92 cities and counties, including:  Toledo, OH  Covington, KY  New Orleans, LA  Baltimore, MD  Dallas, TX  Lansing, MI  Scranton, PA

So, it is the law… Now what?

Next step: Design Nondiscriminatory Policies This is easier done than most think it would be Regardless of whether there is clear statute requiring a program/workplace to be transgender friendly, there are other reasons to adopt these policies:  Recruitment/retention of trained workers  An environment of fairness equals good morale  Improves productivity of employees in two ways: 1) transgender workers who can focus on work instead of worrying and 2) non-transgender employees can focus on work on not controversy

Situations Needing Policy Solutions 1. Restrooms 2. Harassment and Hostile Environment 3. Male/Female Boxes, Identification Cards, Background/Credit Checks, and Security Checks 4. Gender-Specific Housing 5. Showers and Locker Rooms 6. Dress Standards

Three principles to follow: Recognize self identity, regardless of surgery and documentation.  Ask yourself – is the person’s gender identity and expression being recognized in this situation? Understand and apply the concept of reasonable accommodation.  Ask yourself – is this a situation where the typical policies or procedures are resulting in a transgender person having to unfairly endure difficult or different conditions at work? Biases of customers or coworkers are not a valid reason for discrimination.  Ask yourself – is this a situation where an entity is trying to accommodate the biases, or lack of comfort with transgender people, of customers or others?

Restrooms Sometimes coworkers object to going to the same bathroom with a transgender person. People should use the bathroom that matches their gender identity. This is significantly less of an issue than people think it is. Employees will take the lead of management: if management declares this policy, people will follow. Also helpful is an attitude that indicates that this is “no big deal.”

Harassment and Hostile Environment Recognize the factors contributing to a hostile environment for a transgender person:  Refusal to use correct pronouns, or carelessness in never learning to use the correct pronoun  Refusal to use a person’s preferred name  Asking excessively personal questions that would be considered inappropriate if asked of non-transgender co- workers  Discussing coworkers’ personal business behind their backs, including intentionally outing a person

Male/Female Boxes, Identification Cards, Background Checks, Security Checks This can come up in many different ways:  Check-off box for male or female on a job application form  Filling out an I-9 form, an employer discovers their employee is transgender  Entering a secure building, a person is asked for identification  A background check reveals the person’s old name or gender  A transgender person fills out forms with their current name or gender, even though they may not be “legally changed” Solutions:  Don’t discriminate when transgender status is discovered  Make allowances for people who earnestly fill out forms or give information that matches their gender identity

Gender-Specific Housing (possibly issues in Job Corps programs, etc.) Sometimes housing is gender-segregated. People should be housed according to their gender identity. Harassment should not be tolerated.

Showers and Locker Rooms Reasonable accommodation is the most helpful principle to apply. When concerns arise, the best solution is to provide accommodations for private showers and changing areas within the common area. There are other options and the inquiry is case-by- case.

Dress Standards Employers would do best to institute dress codes that require neat, clean, well-groomed professional appearance, or gender-neutral uniforms. Transgender employees should be permitted to dress in accordance with the gendered dress standard that is appropriate to their gender identity.

Additional Resources Feel free to call or me! Cole Thaler, Transgender Rights Attorney, Lambda Legal, (404) , ext. 232 Seth Kirby, Program Specialist, Washington State Human Rights Commission, (360) Marcus Arana, Investigator, San Francisco Human Rights Commission, (415) Transgender Rights, edited by Paisley Currah, Richard M. Juang, Shannon Price Minter, University of Minnesota Press, Transitioning Our Shelters: A Guide to Making Homeless Shelters Safe for Transgender People, National Coalition for the Homeless and National Gay and Lesbian Task Force Policy Institute, 2003, available at