Update on Transgender Employment Issues

So many interesting things have happened in the last month on transgender employment issues, I'm going to make a list. The most important news is about the signing of legislation in Iowa, Vermont, Colorado and Oregon. But not all is rosy...

- The Governor of Iowa signed the bill including gender identity into the state's antidiscrimination law, as did the Governor of Vermont, the Governor of Colorado, and the Governor of Oregon.

The Governor of Ohio by executive order restored a ban on discrimination against state employees based on gender identity and sexual orientation, which had been removed by his predecessor in 1999 However, the Governor also noted his opinion that any Ohio legislation purporting to outlaw discrimination based on sexual orientation or gender identity would be rendered unconstitutional by the state's constitutional ban on same-sex marriage It is difficult to understand the connection, and I note that federal court opinions already cover all transgender employees in Ohio.

A transgender employee won a lawsuit against an insurer, Highmark Blue Shield, that refused to cover the costs of her sex reassignment surgery This comes on the heels of reports that more employers are covering the costs of such surgery

However, not all is rosy for transgender employment rights:

The Connecticut legislature failed to pass legislation adding gender identity to the state's non-discrimination law (I note that all transgender employees in Connecticut are covered by a state administrative ruling.)

The transgender experience in the job market: The American Lawyer publishes a letter, by one of the few transgender lawyers in a large law firm, discussing its article on strides made by gay lawyers in overcoming employment discrimination in large law firms, and noting that transgender lawyers have not been included in the largesse

ENDA: An editorial published in the Washington Blade, an important gay newspaper, suggests that the inclusion of transgender people in anti-discrimination legislation threatens gay people

Identification records: At a "Town Meeting" held on the newly released regulations under the Real ID Act, two witnesses testify about the negative effects on the transgender community, with one noting that "you don't know what it's like to get carted off the security line by a couple of burly cops" (comments at 41:00 and 1:15)

ENDA: The Concerned Women of America suggest that the federal legislation to ban employment discrimination based on gender identity and sexual orientation, the Employment Non-Discrimination Act, would be an unconstitutional infringement of employers under the First Amendment rights to freedom of speech and freedom of religion

Corporate Diversity: Micron Corp., after a shareholder resolution requiring protection of employees based on gender identity and sexual orientation, adds sexual orientation but refuses to add gender identity

And here are some other notable transgender tidbits:

The National Center for Transgender Equality and the Human Rights Campaign release a groundbreaking guide for transgender people about coming out as transgender

Identification records: Transgender passengers are having more and more passport problems because of federal rules written by people who don't understand transgender identities

A transgender police officer on the Kansas City police force came out, and things are going well for her so far

The San Francisco police commission elected a transgender woman as its president

Schools K-12: A Texas transgender high school student, suspended from school for dress code violations, is reinstated after intervention by a pro bono lawyer

Transgender experience in the job market: The Transgender Economic Empowerment Initiative, aimed at reducing chronic unemployment and underemployment in the transgender community, established in San Francisco, and a similar program in Los Angeles, the Transgender Job Placement Program

Trans culture: Executives at Frameline, San Francisco's LGBT film festival, made the unprecedented decision to yank a film, The Gendercator, from this year's schedule due to community outrage over its satirical portrayals of transsexuals in a mythical future

A transgender woman, Jenny Bailey, has been chosen mayor of Cambridge, England, as it celebrates its 800th anniversary

Ohio gender identity policies changing

Here's an interestingly biased article from the Dayton Daily News today. The article discusses a new prohibition on job discrimination based on sexual orientation soon to be implemented by executive order by Governor Ted Strickland. The article, however, does not discuss discrimination against gays and lesbians.

Instead, it starts off with "Cross dressers, transsexuals, gays, lesbians and bisexuals may be protected from job discrimination in the attorney general and secretary of state's offices under soon-to-be expanded employment policies." The emphasis here, interestingly, is on the smallest populations, crossdressers and transsexuals, rather than the much larger population of gays, lesbians and bisexuals. Why would an article begin this way? One guess might be that the paper is rabble-rousing.

This is confirmed when the paper launches into criticism of Attorney General Marc Dann and Secretary of State Jennifer Brunner, who plan to expand the job discrimination ban to cover gender identity.

A garbled quote by Ohio State University associate law professor Marc Spindelman follows:

"It seems hard to imagine that there won't be some people in the state who are incredibly upset by the notion that people will be being judged simply on the basis of their merit and their workplace performance," Spindelman said. I think this means some conservatives will be upset by the new rules. I don't fault Spindelman, who's written some really interesting articles on the same-sex marriage debate from a unique angle. I've given media interviews, and reporters know that verbal expression requires translation to the written context. When they choose to print unexpurgated the part that came right after you dropped the phone on your foot and banged your head on the desk, it means they don't like what you're saying.

The paper then quotes David Miller of Cincinnati-based Citizens for Community Values, who calls it "bad public policy because sexual orientations can change, and he noted that gender identity disorder is a recognized mental condition." Miller's organization, interestingly, has a mission of "promoting Judeo-Christian moral values" and, at the same time, promoting the First Amendment. Wait a minute, isn't that a contradiction of some kind? Well, who's got time to read the First Amendment, anyway. Never mind that, what is Mr. Miller saying? He's saying that people with "mental conditions" don't deserve job protections. What happened to the Americans with Disabilities Act? He is correct in saying that the American Psychiatric Association's Diagnostic and Statistical Manual includes "gender identity disorder." Whatever one may think of the APA's position, it is important to note that it is only considered a psychiatric problem if it causes "clinically significant distress," and not all transgender people are experiencing distress. Of course, he also fails to note that homosexuality was removed from the APA list in 1972, which, logically according to his position, would mean that being gay is now OK.

Next, he says that sexual orientations can change. I'm mystified by this comment, and not at all sure that I agree. The idea of sexual orientation is the sex of the romantic partners that one innately desires. It's generally something we know when we're quite young and get that funny feeling in the stomach when we look at a person whom we want to....well, enough said. It's not something that changes at all, from what I know. More the point, however, is how its changing would justify job discrimination. Let's say it does change. Does that mean I can refuse to hire gay people?

I think the most rational conclusion is that I am trying to make sense of a position that doesn't make sense.

Referendum blocking Cincinnati gender identity ordinance cancelled

The Cincinnati City Council had voted in March to add gender identity and sexual orientation to the city's anti-discrimination ordinance. The amendment was held in abeyance because a group opposed to the amendment, "Equal Rights Not Special Rights," filed a challenge that would have placed the matter on the ballot for a public vote. In order to do so, however, the group had to obtain at least 7,654 signatures. Although it submitted 7,658 signatures, there were many obvious forgeries, and 1,300 were challenged. Thus, the Cincinnati ordinance goes into effect, prohibiting employment discrimination on the basis of gender identity and sexual orientation.

I had previously blogged about the Cincinnati ordinance, and its unusual language.

The only other city in Ohio with legislation explicitly prohibiting discrimination against transgender employees is Toledo.

However, the Sixth Circuit Court of Appeals has interpreted the Civil Rights Act of 1964's ban on sex discrimination to include dismissal because of transgender status. Therefore, referendum or no, employers in Ohio (as well as Kentucky, Michigan and Tennessee) who discriminate on the basis of gender identity are in violation of federal law.

News: "He-She" Redux

I reported last month on a 6th Circuit case in which the trial judge dismissed the case before it got to a jury, ruling that the employer's use of the term "he-she" did not show discrimination. The Sixth Circuit affirmed a few days ago, in Myers v. Cuyahoga County, Ohio

The Court noted that the law requires an employment discrimination plaintiff to show (1) she is a member of a protected class; (2) she experienced an adverse employment action; (3) she was qualified for the position in question; and (4) she was replaced by a person outside the protected class or she was treated differently than a similarly situated non-protected employee.

The Court acknowledged, as did the trial court, that Myers satisfied the first three steps, but said that the "he-she" remark was not sufficient evidence to satisfy the fourth step. The Court also rebuked the lower court for misquoting the law, failing to recognize that Myers could meet the fourth step by showing that she was replaced by person outside the protected class. However, the Court said there was no harm done, as she made no allegation that her replacement was "gender-conforming."

The Court went on to say that even if she had shown that her replacement were "gender-conforming", she, as the plaintiff, was legally required on this "summary judgment motion" to provide enough evidence to show that her claim had merit: that her disciplinary infractions really were a pretext for sex discrimination. The Court said she did not show that there was a "genuine dispute" on this point.

"We agree with Myers that calling a transsexual or transgendered person a "he/she" is a deeply insulting and offensive slur, and we agree that using that term is strongly indicative of a negative animus towards gender nonconforming people. In the context of all the evidence in this case, however, we cannot conclude that the statement by itself is sufficient to create a jury question on the issue of pretext....That isolated remark was remote in time from Myers's termination--the remark was made sometime in 1996 or 1997, several years before the problems with Myers's performance in late 1998 and 1999 that led to her disciplinary offenses and ultimately her termination--and there is no evidence that the remark was related to Cuyahoga County's decision to terminate her. Additionally, there is significant evidence to support Cuyahoga County's claim that the proffered reason for terminating Myers--that she was behaving in inappropriate and insulting ways towards her co-workers and clients--is credible and genuine. Had Myers been able to produce any evidence to call into question the legitimacy of Cuyahoga County's stated reason for firing her, perhaps by discovering some evidence that the disciplinary complaints against her were exaggerated or solicited by Caraballo, then that evidence in combination with the "he/she" comment might have been sufficient to raise a jury question on the issue of pretext. But Myers has not presented a shred of evidence to undermine the credibility of the County's explanation for her termination."

News: Colorado pharmacist sues Ohio company again

A pharmacist employed by Kroger's King Soopers has brought a lawsuit against her employer a second time. Kim Dowers previously sued when King Soopers wouldn't allow her to dress as a woman and she won. Dowers has commenced a second lawsuit on the grounds that she has been forced to transfer from a Denver location to a store in Aurora (about 20 miles away) where there is a unisex restroom.

The Colorado legislature recently passed a bill that would explicitly prohibit employment discrimination based on gender identity. I understand that it was vetoed by the governor.

News:"He-she" not biased; Trans MP bathroom issue

Does calling someone a 'he-she' signal job bias?: The U.S. Circuit Court of Appeals for the Sixth Circuit recently heard an appeal from the dismissal of a Title VII employment discrimination case involving a transgender employee. The trial judge said there was not enough evidence of discrimination to bring the case before a jury. The plaintiff had worked at the employer for 17 years without complaint, but after change of management, received 12 reprimands in a year and was fired. The plaintiff brought a witness, a priest working at the department, who testified that the supervisors repeatedly referred to her as a "he-she." The trial judge dismissed the case, ruling that the employer's use of the term "he-she" did not show discrimination. A decision is expected in six months to a year.

Where does a transgender MP go to the bathroom?: An Italian lawmaker suggested in parliament that the transgender MP, Vladimir Luxuria, be required to use a restricted bathroom. Some other Italian legislators have not been particularly friendly either. Alessandra Mussolini, granddaughter of Il Duce, attacked her on state television, saying "better a fascist than a faggot." (Click here for the video) Another group of politicians assaulted her, throwing fennel (in Italian finocchio, a word also meaning "faggot").

News: Canton, Ohio transgender protections

I'm going away for the weekend up to the cabin in the mountains where there's no internet access, just rest and relaxation, so I'm posting this tonight for the morning. See you Monday.

A new ordinance passed in Canton is intended to protect transgender employees. Though the city's new ordinance does not refer to the traditional formulation of "gender identity," the word "sex" was changed to "gender," in order to cover transgender employees. A member of the council said that the use of the word “gender” instead of “sex” protects transgender employees, and said the city would argue that position in any legal action.

Canton, Ohio is headquarters to one Fortune 500 company, Timken (TKR).

News: Cincinnati ordinance blocked

While it might seem that the progress of law towards protection of transgender people is inexorable, it is not. A couple of weeks ago, I posted about the passage of a Cincinnati law extending employment protection on the basis of transgender status. An opposition group has blocked the change from taking effect by asking that the matter go before voters.

As noted in my prior post, the Cincinnati law is interesting because the protected class definition is unusual. According to Gary Wright, of Equality Cincinnati, the definition is:

"'Transgendered' shall mean the condition or state wherein a person manifests gender characteristics, behavior, and/or self-identification typical of or commonly associated with persons of another gender, and which may be characterized by assumption of the clothes, hairstyles, cosmetic usage or other appearance qualities commonly associated with another gender and/or by the surgical or medical modification of primary sexual organs in order to assume the gender role of another sex.

This is interesting because most anti-discrimination statutes define the protected class as "gender identity," covering people of all gender identities, whether traditional or transgender. A statute prohibiting discrimination based on "transgender status" is rather unusual. It means that someone who was dismissed because they were not transgender would have no protection under that statute. While this situation is unlikely, it does raise the question of whether the law fails to provide equal protection to the traditionally gendered. [For the legally inclined, see Hyman v. Louisville, 132 F. Supp. 2d 528 (2001).]

The Cincinnati definition is similar to others to the extent that it contains the usual tri-partitite reference to gendered identification, self-expression and appearance.

• "Identification" means referring to oneself as male, female or other
• "Expression" means masculine/feminine body language, gait, and communication style, etc.
• "Appearance" covers gendered items like beards, short hair, makeup, heels, etc.

Thus, the statute covers the same territory as most other statutes on the subject, except that it only applies to transgender identity.

News: Cincinnati extends transgender protection

The Cincinnati City Council voted last week to extend discrimination protection to gay and transgender people. The new ordinance adds "sexual orientation or transgendered status" to protected categories. This language is unusual, because such laws usually use the term "gender identity." It would be interesting, particularly for employers in Cincinnati, to find out whether the ordinance has a definition of "transgendered status."

Cincinnati plays host to the headquarters of the following Fortune 500 companies: Kroger, Procter & Gamble, Federated Dept. Stores, Fifth Third Bancorp, Cinergy, American Financial Grp., Western & Southern Financial, Chiquita Brands Intl., Cintas, Convergys, and E.W. Scripps.