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Monday, September 21, 2009

Arguments Against ENDA (Part III)

One of the major underlying and often-unstated arguments against ENDA, in addition to concerns about pedophilia, fear of loss of religious freedom a sudden flood of litigation and concerns about gay quotas, is transphobia - an irrational fear of transgender people.

In simple terms, this is the "yuck" factor. This prejudice is not rational, and there is no reasoning with it. It is as simple as "I don't like you and there's nothing you can do to change that."

Transphobia often gets inserted into the debate in ways that puts a mask on it and erases its tracks. The debaters disguise the prejudice, but rely upon prejudice nonetheless. They may themselves be quite well-meaning, and fail to realize that they themselves are prejudiced.

The transphobia in such arguments is disguised by avoiding any reference to personal intolerance. It is instead exchanged for an impersonal "cultural non-acceptance" argument, which looks and sounds less ugly. Such arguments assume there is a universal reaction against the inclusion of trans people in the workforce.

By attributing the prejudice to others, by asserting that trans employees will not be accepted by co-workers, vendors, clients, or customers, causing business disruption and inefficiency, ENDA opponents raise the same objection used against people of color and women in the workforce. "It's not me, the customers won't like it." "I can't have this person working for me, I'll go out of business." The same argument can be used against gays and lesbians, but no one quite believes that one anymore.

The formal term for the transphobic argument is the "business necessity" objection. It argues that the inclusion of job protections based on gender identity will reduce sales. Its premise is that clients and customers will stop giving business to a company that uses an openly transgender person, justifying discrimination based on gender identity. The same type of argument can be and has been extended to sexual orientation, race, national origin, sex and religion. However, it seems to have a particular resonance regarding gender identity. It is particularly effective among those who do not like to think themselves prejudiced but know somehow that there is a problem with transgender inclusion, which they can't quite put their finger on.

This "business necessity" objection, however stated, and to whomever attributed, is a pretext for transphobic prejudice. Far from providing a convincing argument against ENDA, it is a significant demonstration of the need for a law: many employers cannot be counted upon to do the right thing by themselves. It also demonstrates a lack of knowledge about how gender operates in the workplace as an axis of discrimination.

What is "Gender Identity" in ENDA?

In terms of the specifics of ENDA, it is important to note that the inclusion of "gender identity" protects more than transgender people. It also covers anyone who is dismissed or harassed because of gender, the social, psychological and behavioral aspects of sex differentiation. The term "gender identity" is defined in Section 3(6) of ENDA: "The term `gender identity' means the gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual's designated sex at birth." This definition is similar to definitions found in 13 state laws and over 100 local ordinances since 1975.

One aspect of this, "gender identity," refers to our internal awareness of our gender. In other words, I identify as a female, and this self-identification may or may not relate to my sex designated at birth. "Gender-related appearance or mannerisms" refers to our outward expressions of gender - clothing, body styling or behavior. A person who is harassed or fired from a job because the boss or co-workers don't like the way they express their gender is protected by ENDA, whether transgender or cisgender.

This would include a man who is harassed or fired because every man on the job -- but him -- acts like a "regular" guy. It would also include a man who is harrased or fired because his masculinity is that of a macho man, but he's working in an environment where the boss doesn't like how he enacts his gender. A woman who is not into makeup and teased hair, and who is harassed or fired as a result, would be protected, as would a woman who is harassed or fired because she likes makeup and teased hair and finds herself harassed or fired because of that.

ENDA is designed to remove judgments about our gender from the job qualifications.

In one sense, this is not new law. The US courts, including the US Supreme Court, have recognized for quite a while now that "sex discrimination," illegal since 1964, includes gender discrimination -- adverse treatment because of stereotypes about sex. This law has been extended to transgender people by many lower federal courts. Many state and local laws act in a similar fashion. ENDA recognizes and consolidates this existing gender-based protection for all, whether transgender or cisgender.

The Prejudice Factor

The formal pretexts that are often asserted against transgender employees include the idea that their acceptance in the workforce will result in a loss of sales or, in organizations not focused on sales, a reduction in efficiency. This loss of sales or efficiency allegedly stems from the fact that they will not be tolerated by co-workers, clients, customers, vendors, and others in the workplace environment. In other words, it's not me that's prejudiced, but my assumption is that many others are. How could they not be? I mean, look at these people, for Pete's sake. Etc., etc.

In my experience, as a consultant to many business organizations with transitioning employees, large and small, I have never seen or heard of a situation where a business actually lost sales due to a transgender employee. These concerns get worked out in collaboration with management. There are ways of addressing all sorts of workplaces with long-term clients, with short-term customers, and in guest-service environments. I've known of situations where millions - hundreds of millions - of dollars rested on retaining the goodwill of clients during a high-ranking employee's transition. Every client in that situation was retained. I've known of small businesses where business viability hung in the balance, because the transgender employee was as key to the business as the goodwill of the customers. It worked and the business continues to succeed.

I also, unfortunately, know of other situations where employers didn't wait to see how things would go, and the trans employee was fired. In many cases, trans people find it impossible to get a job, despite years of experience and making hundreds of job applications. The statistics are appalling.

If you spend some time thinking about it, you can probably come up with some ways to address the issues yourself from the employer's point of view, even if you're not an expert in transgender workplace issues. If you want to keep good will, then you must act with good will, and that is what's missing in the transphobic argument of "business necessity."

The "business necessity" argument also appears to assume that ENDA will void the need for transgender employees to perform up to standard at achieving their work goals. This is not in the least true. If a transgender employee has poor work performance, ENDA will not protect them. ENDA is only designed to ensure that their gender is not a factor in management decisions, and that they are free from harassment. I have known situations in which transgender employees have lost their jobs based on work performance issues, in jurisdictions with ENDA type laws. They were not given a free pass by any means, and none is argued for here.

What Happens When You Assume?
The underlying assumption here is that others will be prejudiced, and that's a good reason to deny transgender people jobs. It is not a good reason.

If there's any area that's particularly sensitive to the siren lure of the transphobic argument, it is the military. Transgender people are not allowed to serve openly in the military. It is easy to see how a business that works with the military, like a defense contractor, could argue that the assumed transphobia of the military means they will lose sales if forced to hire a transgender employee. If the "business necessity" objection is going to be valid anywhere, it's going to be with the military.

And yet, a federal court recently blew this objection out of the water in a case under the current federal anti-discrimination law. A transgender employee argued that the rescission of her job offer, because her employer learned she was in gender transition, was covered as sex discrimination. The Court agreed. She also argued that the "business necessity" objections to her hiring, based on the assumed intolerance of the military, were a pretext for discrimination. The Court agreed.

In Schroer v. Billington, the United States Federal District Court for the District of Columbia addressed a situation where Schroer, a highly decorated veteran with excellent qualifications received a job offer at the Library of Congress as a counter-terrorism expert. When they found out she was transitioning from male to female, they rescinded the offer.

During the trial, the Library's hiring manager thought that Schroer's gender transition might diminish her credibility with Members of Congress, whom she would be called upon to serve, and that she might be unable to maintain contacts in the military, an important qualification for the job. The judge dispatched these business necessity objections with the precision of a razor-sharp legal mind.

"The Library's final two proffered legitimate nondiscriminatory reasons -- that Schroer might lack credibility with Members of Congress, and that she might be unable to maintain contacts in the military -- were explicitly based on her gender non-conformity and her transition from male to female and are facially discriminatory as a matter of law. Deference to the real or presumed biases of others is discrimination, no less than if an employer acts on behalf of his own prejudices. See Williams v. Trans World Airlines, Inc., 660 F.2d 1267, 1270 (8th Cir. 1981) (firing employee in response to racially charged, unverified customer complaint is direct evidence of racial discrimination by employer); cf. Fernandez v. Wynn Oil Co., 653 F.2d 1273, 1276 (9th Cir. 1981) ("stereotypic impressions of male and female roles do not qualify gender as a [bona fide occupational qualification]"); Diaz v. Pan American World Airways, Inc., 442 F.2d 385 (5th Cir. 1971) (same).

According to the United States District Court for the District of Columbia, it is now illegal to discriminate against a transgender employee based on "business necessity" objections, even where there is a very strong argument for the assumed transphobia of the clients. The court said this is the same type of flawed reasoning used by those who argued customer bias as a reason for race and sex discrimination. The Court's reasoning applies with the same force to ENDA. The argument that others are assumed to be prejudiced against transgender people, creating a "business necessity" objection to the gender identity protections of ENDA, is nothing more than a cover for personal prejudice. It is transphobia wearing a mask labelled "Business Necessity." This is true regardless of protestations of innocence of any prejudice, and the more violent the protest, the more apparent the transphobia. Prejudice, like superstition, by its very definition requires ignorance as a backdrop. If you know you're prejudiced, you're not.

In fact, I know a number of transgender people who work for military vendors and defense contractors. They interface directly with military personnel, and they have been treated very cordially. Does this mean the military is transgender-friendly? I wouldn't be so bold, but I also wouldn't be so bold as to say all members of the military are so transphobic that anyone doing business with them needs to get rid of transgender employees. It's an unwarranted assumption.

The transphobic "business necessity" objection to ENDA, however well meaning it may be, is based on assumptions stemming from undiscovered personal prejudices.

For more on these topics, see Part I, which discusses concerns about pedophilia, Part II, which discusses fear of loss of religious freedom, and a post discussing the possibility of a sudden flood of litigation and concerns about gay quotas.

1 comment:

Matt Kailey said...

I completely agree with you. I have known dozens of people, including myself, who have transitioned on the job and their employers have seen no loss of customers or revenue. It is a fear that has no basis in reality.

Customers will frequent a business that provides good products or services--period. In fact, I make it a point to spend my money in places that have diverse workforces and that I am sure will not discriminate in hiring and firing practices.

If a business loses one or two customers (which is not likely to happen if that business is providing quality to the customer), that loss would be more than made up for by people like me who would see the diversity and choose to spend money there because of it.

Loss of business due to a diverse workforce is a non-issue. Discrimination is a huge issue. Most people are more concerned about whether or not an employee can do his or her job and provide good service than anything else. An employer who stands behind and supports his or her employees will gain respect from customers and clients, and respect equals return business.

I have also trained many businesses that have an employee who is transitioning. I have not once seen rejection by coworkers. If anything, I have seen coworkers eager to lend their support to the transitioning employee. The training helps immensely. They walk out of the training excited to speak to the person and let him or her know of their support. At every business I have trained, even those with conservative workforces, I have seen positive responses.

When handled correctly, it is simply a non-issue.