Transgender Rights in the Workplace Are Still Unclear
It's illegal to fire employees because of their sex. But switching genders can still cost people their jobs.
In fall 2007, Vandy Beth Glenn was a bill editor working beneath the gilded gold dome of the Georgia capitol building. For the past two years, she had been transitioning from life as a man to one as a woman, attending therapy, taking hormones, and often presenting as a woman in her liberal Decatur neighborhood. In her office, though, she was still presenting as a man, albeit a fractured one.
"It reached the point where I couldn't continue to do that anymore. It was more and more cumbersome to have one identity at home and a different identity at work, when you're not a superhero," said Glenn, a former Navy officer. "So I informed my boss of my transition."
The conversation did not go well.
"The man who fired me, Sewell Brumby, told me he was firing me because I was transgender. He didn't pretend he was firing me for another reason. He didn't trump up reasons of poor work performance. He just said, 'No, I'm firing you because you're transitioning,'" she said. "The fact that he felt so safe in doing that just illustrates what a safe climate it seemed to be for the people on the wrong on this issue in October of 2007."
Nearly five years later, Glenn has steamrolled through her savings. She's also burned through her 401k and taken out a second mortgage on her home. But she's won a historic legal case that places her at the forefront of the debate over transgender rights, and could lead to greater protections for transgender people around the country. "If I couldn't convince them that what they did was wrong, I could at least make them see that what they did was illegal," she said. "I was motivated in large part by anger."
Nine out of ten Americans mistakenly believe that there is a federal law that prohibits employers from firing someone because the individual is gay or transgender. But no such law exists, and this type of discrimination is legal in the majority of states.
For many, maneuvering the binary gender world is still a twisty path laden with lurking prejudices
While definitions vary, a transgender person is generally someone who identifies with a gender that is different than the one assigned at birth. Many transgender people choose to take hormones and/or undergo surgery to facilitate a gender transition, but not all do.
Transgender people in particular face enormous challenges finding work. The National Gay and Lesbian Task Force and the National Center for Transgender Equality report that transgender people experience unemployment at twice the national rate -- and that 90 percent of the more than 6,000 respondents to a recent survey indicated they experienced harassment or mistreatment on the job.
For years, it's been unclear if transgender people are protected under Title VII provisions that bar discrimination against people based on sex. That ambiguity has left the nation's approximately 700,000 transgender people in legal limbo, relying on the good graces of employers, landlords, restaurant employees, school principals, and others to permit them to live, work, learn and play like the rest of the country.
Then in December 2011, the 11th circuit court, which covers Georgia, Mississippi, and Florida, ruled in Glenn's case against Sewell Brumby: Title VII indeed outlaws discrimination against transgender workers. Similar decisions had been made in other circuits, but this was the most conservative court to do so.
The ruling had national repercussions. In April 2012, the Equal Employment Opportunity Commission cited Glenn's case and declared that transgender federal employees are protected from discrimination under Title VII. While the decision applies only to federal employees, courts typically use these announcements as guidelines in other cases.
"If you are suing a private employer, you can go back the EEOC ruling and say, 'This is what they say,' and courts are supposed to defer to what the EEOC says," said Greg Nevins, Glenn's lawyer and an attorney at Lambda Legal.
At the Trans Health Conference in Philadelphia this year, the largest transgender-specific meeting in the world, the event's approximately 2,000 participants looked positively Pleasantville next to attendees of the World Wizard Comic Con, which shared the city's sprawling convention space.
While wizards raced about in spandex bodysuits, brandishing an arsenal of plastic intergalactic weaponry, transgender conference attendees lugged sleeping toddlers in backpacks and attended yoga classes. Former military officers, teachers, surgeons, pizza shop employees, and a gaggle of transgender kids filled the hallways.
But for many, maneuvering the binary gender world is still a twisty path laden with lurking prejudices. Try being transgender in a small town, or a homeless shelter, or a prison. Said Kate McDonough, lead organizer at Empire State Pride Agenda, "Privilege is invisible unless you are forced to think about it."
Medical advancements and shifting social mores have allowed more people than ever to transition. But as more openly transgender people enter schools and offices, there has been greater demand for local, state, and federal governments to address the discrimination these people face.
The recent EEOC decision provides some legal recourse for transgender people who experience discrimination on the job. But many advocates say it's not enough, insisting that only state or federal laws that specifically bar discrimination of transgender people will create the cultural shift necessary to stem it "You want to have a statute where it's going to be up on the board in the office, it's that simple," said Nevins.
Sixteen states have clear laws that protect transgender people from discrimination. But in the other 34, it is permitted to deny employment, housing, or education to a person because he or she is transgender. (Click on the map at the right for a larger view.)"If a black person was fired for being black, everyone would say, 'That's not right,'" said Sharon Brackett, a Maryland resident who said she lost her job at a computer engineering firm when she transitioned in 2011. "That's where we need to be with transgender people."
Since 1994, activists have worked to pass the Employment Non-Discrimination Act, or ENDA, which would outlaw discrimination in the workplace based on gender identity, protecting transgender people. (It would also outlaw discrimination based on sexual orientation, protecting gay people). But that bill and similar ones at state levels have struggled to garner conservative support.
"It goes back to fundamental American notions of freedom," said Stephen Hayford, chair of the Albany-based Association of Politically Active Christians of New York. "Let's say a hypothetical man is struggling with his gender identity and decides to begin to live as a woman. If that person wants to go to work in a workplace that will allow cross-dressing, there are plenty of companies that will allow it. But the question is: What about the employer that doesn't? Should the state step in and mandate that the employer allow it? ... And our answer would be no."
Opposition often centers around deeper questions about whether gender identity is a choice "If an African American goes in to apply for a job and gets turned down because he's African American, that's disgusting, that's un-American," said Hayford. "And there is nothing that that person can do to 'un-African-Americanize themselves. But if a man goes in dressed as a woman for a job, to put it bluntly, that person can go back and put on a pair of pants and apply for the job."
On December 6, the 11th Circuit Court ruled it was illegal for Sewell Brumby to fire Vandy Beth Glenn. By December 9, she was back at her old job, proofreading and formatting legislation. "At first it was really scary, but my old coworkers were all very welcoming," she said. "Of course there was some awkwardness, that's inescapable, I don't hold that against them."
This year, for the first time, a Georgia assembly member introduced legislation that would outlaw discrimination based on gender identity across the state. The bill was not assigned to Glenn for editing. ("By chance or by design it didn't cross my desk," she said.) It also died early on.
Glenn, however, did not despair. "I applaud anti-discrimination laws, and I'm glad when they pass, wherever they pass," she said. "But I think that the answer is most likely not going to be from legislation or the court, it's just going to be a natural evolution of society. It's just going to get to a point where it won't occur to people to treat any class of people poorly."