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July 01, 2003

Protections for Transgender Employees

by Jennifer Levi

"Normal," a recent HBO movie, features a transgender protagonist named Roy who endures decades of personal torment before finally telling her wife, her employer, her church, her children, and eventually her coworkers what she has known for years: that she has a female gender identity and intends to undergo medical care and treatment to transition from male to female. Sadly, the harassment that Roy later endures from coworkers is, like the movie's title, quite "normal." Many transgender employees routinely face demotions, unfavorable conditions of employment, and even discriminatory terminations—due not to job-related problems but to employers' discomfort with and animus against transgender people.

Express Protections

A growing number of jurisdictions specifically include transgender people in antidiscrimination laws by prohibiting discrimination on the basis of gender identity and expression, or by including language similarly intended to prohibit discrimination against the broad range of people who do not conform to stereotypes of how a "real" man or woman should look or act. Three states-Minnesota, Rhode Island, and most recently New Mexico-include transgender people explicitly in their employment antidiscrimination laws. Protections are even broader at the local level. As of January 2003, more than fifty cities and towns had passed trans-inclusive antidiscrimination ordinances-areas as diverse as Boston; Louisville, Kentucky; New York City; and Ypsilanti, Michigan. (An updated list of locations with such protections is maintained at www.transgenderlaw. org.)

Sex Discrimination Protections

In addition to these explicit protections, transgender people sometimes find protection in sex discrimination provisions. Logically, protection under existing sex discrimination laws seems the most straightforward-hostile treatment in the workplace because a person decides to transition from one sex to another or fails to conform to stereotypical gender expectations can hardly be the result of anything other than "sex."

In several cases brought by transgender litigants in the 1970s and 1980s, however, courts excluded transgender people from sex discrimination protections by narrowly interpreting the laws. In these decisions, the courts often concluded that transgender people were neither male nor female and therefore not covered, or that discrimination based on "change of sex" was different from discrimination based on sex.

The flawed reasoning of these older cases was cast into doubt by the 1989 case of Hopkins v. Price Waterhouse and the 1996 case of Oncale v. Sundowner, both of which rejected the premise that federal sex discrimination laws should be narrowly understood. Since these two decisions, state and federal courts (specifically in California, Massachusetts, New Jersey, and Ohio) have upheld sex discrimination claims by transgender litigants. Most recently, in fact, the Ninth Circuit explicitly overturned Holloway v. Arthur Andersen, one of two foundational cases that spawned the earlier exclusions.

Despite the analytical arguments in favor of sex discrimination protections for trans people, there remain important reasons to codify explicit protections, particularly in light of historical exclusions. Adding explicit protections ensures greater predictability of future case outcomes and reassures trans people and reminds employers that they are protected.

Disability Protections

State and local disability laws also provide some protections for transgender employees who experience discrimination in the workplace. As is often (and correctly) pointed out, being transgender is not a "disability" in the colloquial sense-transgender people are not infirm or physically limited from performing tasks. But in antidiscrimination laws and benefits laws such as social security disability insurance, the term "disability" is not limited to individuals who have a handicap or appear outwardly affected. Under antidiscrimination laws, disability refers to a wide range of health conditions that are significant but do not disqualify a person from performing a job. Disability laws, unlike benefits laws, ensure that people who are able to work are not prevented from doing so by the prejudice or bias of others. The misunderstanding surrounding the term should not prevent trans people from accessing the courts and other protections-instead it presents compelling reasons to continue to correct and dispel stereotypes associated with disability.

Most transgender people are currently excluded from disability protections under federal disability statutes. As a result of a political compromise with no basis in medical reality, the two federal disability laws-the Federal Rehabilitation Act (FRA) and the Americans with Disabilities Act (ADA)-explicitly exclude from coverage "gender identity disorders not resulting from physical impairments." As a consequence, most transgender people may not bring claims of disability discrimination under federal antidiscrimination laws. Fortunately, however, some state disability laws omit this exemption, and transgender people in these jurisdictions may be protected under the state statutes. Moreover, transgender people may be protected in states where the state disability law is modeled on the federal laws but omits the federal laws' express exclusion. See Doe ex rel. Doe v. Yunits, 2001 WL 664947 (Mass. Super. Feb. 26, 2001).

The following analysis may vary from state to state, depending on the extent to which the jurisdiction may depart from federal law. In most states, a person is protected from discrimination if he or she:

  • has a physical or mental impairment that substantially limits a major life activity (including sex);
  • has a record of such an impairment; or
  • is regarded as having such an impairment.

A transgender person residing in a state that does not have an explicit exclusion for gender identity disorders and who falls within one of the three prongs is entitled to protection under the state disability discrimination provisions. Several state human rights commissions across the country, including Connecticut, Florida, Illinois, Massachusetts, and New Hampshire, have interpreted state disability laws to include transgender people.

Some transgender people experience gender dysphoria (generalized discomfort or unease about birth gender) and, as a result, can easily demonstrate that they have an "impairment" under the terms of the relevant state statutes. At the same time, they may be uncomfortable about embracing a psychiatric diagnosis, which still carries the possibility of stigma in some areas of society. Even among those in the transgender community who reject the psychiatric model, most do not reject the premise that being transgender is likely a medical condition caused by biological factors that are not yet fully understood-and a growing body of scientific research supports this conclusion.

Many transgender employees face discrimination in the workplace. Lawyers may look to several sources of law in order to redress the rights of transgender clients who face adverse treatment in such situations, including transgender-specific nondiscrimination laws, state and federal sex discrimination laws, and state disability laws. Although courts historically have found transgender people excluded from coverage under certain laws, developing case law supports the arguments of transgender employees who face workplace discrimination.

Jennifer Levi

Jennifer Levi is a senior staff attorney at Gay & Lesbian Advocates & Defenders (GLAD). She works on a wide range of cases defending the civil rights and civil liberties of gay men, lesbians, and transgender people. She was lead counsel in the case of Doe v. Yunits, representing a transgender student denied the right to attend school because of her clothing.