This is a major change from the past, when sponsors of ENDA refused to include transgender protections because it would make passage of the bill more difficult. Of course, that was when the bill had a chance of passage. In fact, I heard that in 1996 it came one vote shy of passage. Now, however, it has no chance while the Republicans are in control of the committees through which the bill must pass to get to a vote. I had understood that, in its last iteration in 2004, there were probably more than enough votes in Congress to pass it, but there was no chance of its getting through committee, and, in fact, it never did come to a vote. Around that time, HRC and other major gay rights groups agreed that, in the future, they would not support the bill unless it included protection for transgender employees.
As those of you follow my blog know, the LGBT community is not one big happy acronymic family. There are significant political tensions between the various groups. This situation was no exception. There was strenuous opposition to this stand from other gay and lesbian activists. Chris Crain, who recently stepped down as executive editor of the Washington Blade, published an editorial entitled "ENDA gets trans-jacked." Crain, a graduate with honors of Harvard Law School and Vanderbilt University, argued that HRC's "mind-boggling decision is wrong politically, legally and morally."
IF HRC AND these other groups have their way, workplace protection for gays and bisexuals will be held hostage until a majority in Congress (and the president) agrees to protection for transgendered employees...And it's the latest sign that the groups at the supposed helm of the movement for gay civil rights are out of touch with their constituents and sadly adrift when we need them the most....If legislation can be achieved that wins some civil rights for some people — in this case, almost all of HRC's constituents —that is better than nothing. ...It would be wrong and immoral for us to expect others to betreated unfairly until we are treated equally. And it is just as wrong and just as immoral for transgendered people and their P.C. allies in gay rights groups to expect the same.
Interestingly, to show how times have changed for transgender people even in the past two years, sponsor Barney Frank, who has opposed transgender inclusion in the past, now says he believes a carefully drafted "trans-inclusive" ENDA would likely receive the same if not more co-sponsors than the earlier version did in 2004.
According to Frank, the revised bill also will include language that allows employers to retain dress code requirements consistent with existing federal non-discrimination laws. I've discussed the dress code question in previous blogs. Surprisingly, he said such language would make it clear that an employer would not be forced to hire someone “with a beard wearing a dress.” I'd be very curious to see that language. I have some concern that such language might validate odious dress codes that force women to wear high heels and makeup, such as that upheld by the ridiculous recent Ninth Circuit decision in Jespersen v. Harrah's Casino. However, Frank has said he would not release the draft bill before he and his House colleagues introduce it early next year. But more likely, the language tracks that used in the 2003 California statute
Nothing in this part relating to gender-based discrimination affects the ability of an employer to require an employee to adhere to reasonable workplace appearance, grooming, and dress standards not precluded by other provisions of state or federal law, provided that an employer shall allow an employee to appear or dress consistently with the employee's gender identity.
As an interesting sidenote, the introduction of this new bill could fuel arguments against protection for transgender employees based on the existing Title VII prohibition against sex discrimination. Most federal courts have ruled that sex discrimination is not invoked by firing someone because of sex reassignment, partly because the US Congress has consistently introduced bills to prohibit sexual orientation discrimination since the early 1960s. Those courts have reasoned that if Congress intended "sex" discrimination to include transgender employees, the bills would not have been necessary. A few courts have rejected this argument, on the grounds that sexual orientation and gender identity are different, as well as on the sound reasoning that there may have been many other reasons for the introduction of such bills.
As noted in previous blogs, however, a number of federal courts have found that sex discrimination covers transgender employees on the grounds that the Supreme Court has stated that failure to live up to sex stereotypes is sex discrimination. But defense attorneys will certainly point to the introduction of a "gender identity" bill in Congress as evidence to back their arguments. They will likely use a double argument: 1) the introduction of the bill shows that "gender identity" is different from "sex" and 2) transgender employees are different in kind from those employees who are fired for the much milder "offense" of failing to live up to sex stereotypes.
There's more to say (isn't there always?) but it's time to head to school. Many exciting faculty meetings today. (Yawn)
On a more exciting note, I'm speaking at Rutgers Law School this Thursday night on the topic of "Sex and the Supreme Court: Transgender Coverage of Title VII." Feel free to contact me for details at jweiss@ramapo.edu if you'd like to come by.
