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This is not legal advice, which can only be given by an attorney admitted to practice law in your jurisdiction after hearing all of the facts and circumstances in a particular case.

Sunday, February 16, 2014

Litigating the Transgender Revolution

In 2011, I decided that it was time to turn to the courts to help transgender individuals who experienced discrimination at work based on gender identity or expression. I have handled eight cases: one settled, one ended when the alleged witnesses scattered to the four winds, five are now before the EEOC, and one is in court awaiting a ruling on a motion for summary judgment. (The motion for summary judgment is a common legal tactic, a request to the court to render judgment without a trial, on the grounds that there is no genuine dispute of material fact for the jury to hear at trial.)

I've handled cases around the country: Florida, Georgia, Arizona, Pennsylvania, and Tennessee. I also have a case involving the gender expression of a non-trans employee in court at the summary judgment stage.

These cases are extremely time-consuming, involving hundreds of hours each.  Fortunately, that time is consumed in little dribs and drabs, allowing me to work on several cases simultaneously.  And then sometimes, like when I have to defend against a motion for summary judgment, or when a trial is scheduled, the time is eaten up in huge chunks, and nothing much else gets done for weeks.

I've learned a few things about the legal landscape of employment discrimination.  It's not an easy type of case to win.  National statistics are that about 5% of employment discrimination plaintiffs obtain a reasonable cause ruling from the federal Equal Employment Opportunity Commission ("EEOC"), and about 15% of employment discrimination plaintiffs win in the courts.  You have to present several different types of proofs, and employers have learned to cover their tracks extremely well.

In this blog, I will talk about the types of proofs necessary for an employee to win his or her case. I will also talk about the need to devote movement resources to litigate these cases and to train lawyers about these types of cases.  Most plaintiff-side lawyers are reluctant to take cases involving trans employees, because they will be working on a contingency fee (i.e., they get a percentage of any award, and nothing if there is no award) and they understand little about trans issues, and don't know how to evaluate the cases.

It's clear to me that the transgender revolution will be litigated, rather than won in the realm of politics.  The federal bill proposed to prohibit discrimination based on sexual orientation and gender identity ("ENDA") has languished for years, with little hope of passage until Congressional Democrats again become the majority, something which is not predicted to happen in the next several years. Of course, the last time the Congressional Democrats were the majority in both Houses of Congress, they treated ENDA like a political hot potato and left it to die.

In addition to the interesting points I'm learning about the court system, I've also noticed that there are beginning to be more reported cases on this type of employment discrimination. There needs to be some place to talk about these cases.  We should also talk about the many cases now springing up regarding sexual orientation and marriage equality, which hold potentially important analogies for gender identity discrimination.  It's for these reasons that I'm motivated to start blogging again.

Watch this space.


2 comments:

Marilette said...

Dear Jillian Weiss, I hope you´ll go on somehow motivated in your work allthough sometimes your Don-Quijote-like efforts look to me similar to the fight against a kind of severe racism put upon genderidentities which differ from the Major cisborn women and men with identical mental sex.
You´ve got my admiration and love. Greetings from a German!

Zoe Brain said...

I just hope that an ENDA isn't passed that ends up giving fewer protections than the legal system already provide.