Sexual Identity Discrimination & the Law By: JR Smith & Kim Rivera

Overview Opening Questions History of Title VII and the Transgender Community Discrimination cases HR Involvement

Question #1 Does the U.S. Constitution protect transgender people from discrimination?  Although the U.S. Supreme Court has never considered this question, we [ACLU] think the answer is yes.  It is important to remember, however, that constitutional protections only cover discrimination or mistreatment by the government.  The U.S. Constitution’s guarantee of equality protects transgender people from being treated differently by the government because of fear or hostility  Although the U.S. Supreme Court has never considered this question, we [ACLU] think the answer is yes.  It is important to remember, however, that constitutional protections only cover discrimination or mistreatment by the government.  The U.S. Constitution’s guarantee of equality protects transgender people from being treated differently by the government because of fear or hostility

Question #2  In some cases, yes. If the law banning discrimination based on sexual orientation defines it to include gender identity (as Minnesota’s does), it does protect transgender people as well as lesbians and gay men.  Most sexual orientation nondiscrimination laws prohibit discrimination based on perceived as well as actual sexual orientation.  Therefore, a transgender person is protected by these laws if the perpetrator’s actions stemmed from his or her belief  In some cases, yes. If the law banning discrimination based on sexual orientation defines it to include gender identity (as Minnesota’s does), it does protect transgender people as well as lesbians and gay men.  Most sexual orientation nondiscrimination laws prohibit discrimination based on perceived as well as actual sexual orientation.  Therefore, a transgender person is protected by these laws if the perpetrator’s actions stemmed from his or her belief Do laws that prohibit sexual orientation discrimination protect transgender people?

Question #3  Yes. California, Colorado, Hawaii, Illinois, Iowa, Maine, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, Washington and the District of Columbia all have such laws. Their protections vary.  At least 93 cities and counties have passed their own laws prohibiting gender identity discrimination  The governors of some states (e.g., Kansas, Michigan) have  banned discrimination against transgender state workers through executive orders.  Yes. California, Colorado, Hawaii, Illinois, Iowa, Maine, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, Washington and the District of Columbia all have such laws. Their protections vary.  At least 93 cities and counties have passed their own laws prohibiting gender identity discrimination  The governors of some states (e.g., Kansas, Michigan) have  banned discrimination against transgender state workers through executive orders. Are there laws that clearly prohibit discrimination against transgender people?

Title VII Established to prohibit employment discrimination in hiring, wages, layoffs, benefits, etc. o A part of the Civil Rights Act of provide discrimination protection o Creates the EEOC- to eliminate unlawful employment discrimination o State, local government, private, educational institutes and federal government all subject to Title VII

History of the Transgender Community Transgender: of, relating to, or being a person (as a transsexual or transvestite) who identifies with or expresses a gender identity that differs from the one which corresponds to the person's sex at birthtranssexual transvestite

Discrimination Cases  Yang v. TSA  Ashley Yang Hired as female  Ordered to cut hair, present as man and screen male passengers  Fired from TSA 5 days before end of 2 year probationary period  Worked with TLC to bring discrimination case to TSA  Awarded undisclosed settlement one year after being fired  Yang v. TSA  Ashley Yang Hired as female  Ordered to cut hair, present as man and screen male passengers  Fired from TSA 5 days before end of 2 year probationary period  Worked with TLC to bring discrimination case to TSA  Awarded undisclosed settlement one year after being fired  Macy v. Holder  Started hiring process with ATF as male  Halfway through hiring process Macy informed agency of transition  Shortly thereafter, position was defunded  Macy later learned of another person being hired into position  Brought Title VII sex discrimination case to agency  Appealed to EEOC and won landmark decision

What can HR do? Identify liability opportunities Include language in policies/publications Recognize in Diversity and Inclusion activities Educate Reinforce policies- Sexual harassment, hostile work environment, workplace bullying

Questions?