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

VT: "Transgender Bill Rife With Problems"?

There's a new bill to add gender identity and expression to the Vermont human rights statute. As many of you may recall, Vermont has tried several times to pass a bill including gender identity and expression, and was most recently shot down by Governor Douglas because he was concerned (somewhat contradictorily) that transgender people were already covered under existing law, and that legislation would raise unresolved issues for law enforcement and businesses. I posted several times on the last attempt, which you can see by clicking here.

It seems that Governor Douglas' concerns have been addressed, and he is ready to sign the bill.

From Autumn Sandeen over at Pam's House Blend:

"The Vermont Senate passed a bill banning gender identity discrimination on March fifteenth. It's a preliminary vote -- 26 to 0 -- that the State Senate approved on Thursday. Governor Jim Douglas has indicated that he was likely to sign the bill if it reached his desk. He vetoed a similar bill last year based on wording that he considered too broad, but his concerns have been addressed in this version of the bill."

Here's another news item about it: Senate passes bill banning gender identity discrimination

Despite all the work to allay fears about transgender people, however, the same bugaboos keep cropping up. The article linked to the title above takes you to an opinion piece in the Burlington Free Press. It makes a number of points which are based on fear, rather than reason.

The first point is that all transgender people suffer from a "treatable mental disorder". This is incorrect, as the Diagnostic and Statistical Manual of the American Psychiatric Association applies "gender identity disorder" only to those who suffer from "clinically significant distress" as a result of their non-traditional gender. No distress, no disorder. In addition, the adjective "treatable" is misleading because the primary treatment for those with the disorder is to transition from one gender to another. The writer's statement make it sound as if there's a pill to make it go away. Furthermore, not all transgender people wish to transition to living in another gender, removing them from the "gender identity disorder" differential diagnosis.

The writer then states that the "Common Benefits Clause" of the Vermont Constitution forbids laws against employment discrimination for transgender people unless the law also includes kleptomania and anorexia. This wrongly assumes that the primary reason for protection of transgender citizens is the fact that it is a disability. "Disability" statutes don't prohibit termination of the disabled if they are unable to meet job performance criteria. Rather, they require employers to give reasonable accommodations to allow disabled employees to meet the job performance criteria. The Vermont legislation is not such a "disability" type bill. It is a "non-discrimination" type bill, the same one that 80 cities and 10 states have successfully implemented.

Moreover, if this reasoning were correct, it would invalidate the Americans With Disabilities Act and all of the state statutes and regulations protecting people with disabilities in all 50 states. In fact, there is no requirement under the Vermont Common Benefits Clause that every disability be considered the same. I've reviewed all the dozen or so cases Vermont has involving that clause, and none of them suggest such a conclusion. In fact, they all say that the meaning of the clause is simply that there be a rational basis for laws passed by the legislature. Non-discrimination and the benefits of diversity are more than enough reason to prohibit discrimination against transgender people. There is a rational basis to treat kleptomania and anorexia differently because they are not "identities."

The author also says that prohibiting employment discrimination against transgender people is "sending a message that such illness is healthy, or even desirable, rather than encouraging treatment and recovery." As I mentioned, the primary medically-sanctioned treatment for transsexuals is transitioning to another gender, so enacting non-discrimination protections will actually facilititate treatment. In any event, the author is arguing in essence that employment discrimination is a form of treatment of mental illness, and such a suggestion is patently absurd.

The author also points to "hardship for businesses, schools, and the common person." The same argument was used in regard to the employment of African-Americans and women. If you really want "Common Benefits," then a little hardship is called for.

The author also states, wrongly, that "gender identity" is undefined in the law. If you read the very first clause of the bill, you'll find it there. Here's the text: http://www.leg.state.vt.us/docs/legdoc.cfm?URL=/docs/2008/bills/intro/H-228.HTM

He wants answers to certain questions, implying that they can't be easily answered and will therefore lead to lawsuits. Let me take a crack at them:

1) Specifically, what types of behavior associated with "transgenderism" or gender dysphoria would not be protected by this legislation?

A: This question assumes that the statute protects the behavior of transgender individuals. This is incorrect. Rather, the statute prohibits certain behaviors of employers, owners of public accommodations, and other, to wit, they may not discriminate against or harass those with a gender identity that is not traditionally associated with their sex at birth. As the statute notes, if a transgender person's behavior violates a reasonable work policy of the employer, the statute does not protect against corrective action or discipline by the employer.

2) Who defines "reasonable workplace policies" -- the employer, the state, or the courts?

A: "Reasonable" is a term used in many thousands of statutes. It is generally interpreted by the courts to indicate actions or beliefs held by a "reasonably prudent person." In other words, "reasonableness" is defined by custom, in this case, the custom of employers. The term is intended to be non-specific because it would be impossible to anticipate all situations, and reasonableness is determined on a case-by-case basis.

3) Please provide examples of "reasonable workplace policies" which would accommodate a "she/male" transsexual who wishes to retain their position as a retail clerk, and also protect the employer against a lawsuit for discrimination?

A: First, note that "she/male" is a term generally used in the pornography industry, and is considered derogatory. Also, many transsexuals are "female-to-male," i.e., they are not "shes."
One example of a reasonable workplace policy is a dress code that specifies acceptable dress for workers. For more examples, see the "Sample Policies" available at hrc.org.

4) Please provide examples of "reasonable workplace policies" which would accommodate a third-grade teacher transitioning to the opposite gender (a two-year process), and would protect the employer against a lawsuit for discrimination?

A: In addition to the dress code example above, one policy specific to the K-12 environment would be a rule that specified the types of questions that a transsexual teacher could answer about medical/surgical procedures related to gender transition. Another would be a rule that mandated training for students and other staff members. The Batavia, NY school system recently did an excellent job on this issue. See http://jweissdiary.blogspot.com/2006/08/school-district-for-diversity_29.html

The author implies that these questions can't be answered easily. As is shown by the experience in 80 U.S. cities, 10 states, the E.U., Canada, New Zealand, Australia and other place, the administrative convenience of simple rules discriminating against transgender persons cannot be allowed to trump the "common benefits" of equal protection for all.

News: Vermont Veto Correction

I stand corrected. Yesterday I reported on the Vermont veto, and noted that the text of the bill I was looking at (from the website of RU12?, the Vermont advocacy group supporting the bill), contained no definition, an unusual omission. A reader sent the following comment:

"The link to the bill text that you gave is incorrect. You linked to the bill text as originally proposed (H.0478); the text of the bill as passed by the House and Senate (renamed H.0865) is found at the following address: http://www.leg.state.vt.us/docs/legdoc.cfm?URL=/docs/2006/bills/passed/H-865.HTM. The definition of the term "gender identity or expression" is found at the beginning of the bill in Section 1. "

And so it is.

Section 1. "The term 'gender identity or expression' means an individual's actual or perceived gender-related identity, appearance, expression, or behavior, regardless of the individual's assigned sex at birth."

This is a fairly standard definition, as I've noted in previous posts. As noted in my post yesterday, the question to address is why the Governor of Vermont felt that "It would be inappropriate and unfair to every employer, landlord, provider of public accommodation, lender and school to put a law on the books that creates new obligations and liabilities while many who would advise them are struggling with the bill's terms and scope."

I had thought that the absence of a definition might explain the struggle, but that is obviously not the issue. Its scope is the same as Vermont's existing anti-discrimination law, as the bill does nothing more than add "gender identity or expression" to the list of "race, color, creed," etc. There is a little more information in this morning's news reports, however. Specifically, that on May 17, the Vermont Human Rights Commission voted 4-1 against the legislation.

The Governor weighed that veto heavily, according to a story from WCAX TV noting the importance of the fact that "lawyers from the Human Rights Commission recommended against approving this bill and that's the agency of state government responsible for enforcing complaints of discrimination." It seems that the Governor's concern about the confusion of "those who would advise" is based on the Commission's vote. It is not surprising that the Governor deferred to the agency which is supposed to provide expertise on the issue.

The Vermont Attorney General is quoted in the story as saying "There wasn't a reason, in our view, why the bill should be vetoed for reasons of uncertainty in the law." It's also interesting to note that one Vermont Human Rights Commissioner has resigned in protest.

According to the story, "The Governor is not inalterably opposed to the bill. He says he merely wants lawmakers to take more time with it and rewrite it to eliminate the problems he's identified." The question is what problems those might be. In a post last week, I noted some of the questions raised by the Governor: how law enforcement would be permitted to do a search for someone in the midst of a gender change; whether new restroom or housing facilities would be needed for transgendered people in state prisons; and whether private employers face new liability.

The first two questions are interesting (though perhaps moot, given that authorities already have strategies to address these issues), but the only question relevant to this HR blog is the last. The answer to the question of whether private employers in Vermont face new liability seems to be in the negative. The Governor said that existing Vermont laws already cover transgender employees, and that, in fact, the attorney general's office has filed two transgender discrimination complaints. From this, it seems that the bill would have affirmed existing protections, so that there would not have been new liability for private employers.

The importance of this story is that it confirms that the addition of gender identity to laws and policies raises many questions, so that employers who add it should be thoughtful about the process and address foreseeable issues in advance. I think it important to note, however, that the nature of these questions is primarily social, rather than legal. Anti-discrimination laws and the EEO policies that track them have been on the books in the US since the Civil Rights Act of 1964. Most of the legal questions about anti-discrimination laws were ironed out decades ago.

News: VT bill vetoed

Governor James Douglas vetoed the gender identity bill on Wednesday. He noted that the definition of "gender identity and expression" in the bill "is ambiguous and potentially more far-reaching . . . and raises many questions with regards to its breadth, its implementation and its enforcement."

Steve Cable of Vermont Renewal, a Rutland-based organization that served as the legislation's primary foe, said "This bill has the potential of creating an environment of 'affirmative action' for cross-dressers and transvestites, which is a concept we vehemently oppose."

The governor suggested the bill needs to be reworked, and pointed to the state's Human Rights Commission's vote Wednesday calling for further study of the legislation. "It would be inappropriate and unfair to every employer, landlord, provider of public accommodation, lender and school to put a law on the books that creates new obligations and liabilities while many who would advise them are struggling with the bill's terms and scope," he said.

I've looked at the text of the Vermont bill as posted on the Vermont Legislature's website, and its scope is the same as Vermont's existing anti-discrimination law, as the bill does nothing more than add "gender identity or expression" to the list of "race, color, creed," etc. However, I searched in vain for the definition of "gender identity or expression" always found in such bills. This definition is important, and I've discussed in a previous post. Perhaps I was looking at the wrong text, because I can't imagine why it wasn't in the bill. If there is, indeed, no definition, the Governor has a point.

News: VT Gov. Raises Questions

The gender identity bill passed by the Vermont legislature still awaits the Governor's signature. It's reported that he is awaiting a bill review from various agencies and departments. Among the questions are how law enforcement would be permitted to do a search for someone in the midst of a gender change; whether new restroom or housing facilities would be needed for transgendered people in state prisons; and whether private employers face new liability.
The governor's spokesperson stressed that his concerns were technical implementation concerns and not necessarily substantive. "The governor is against discrimination of all kinds and against discrimination on any basis."

This report is interesting because it specifically lists concerns that must be addressed by any organization with a gender identity policy. As anyone following this blog knows, the questions posed are not hard to answer, but they must be answered. It will be interesting to see how Vermont answers them.

VT Gov veto threats loom over session end

The governor of Vermont has also expressed concern over a measure that the Legislature passed Friday making it illegal to discriminate based on gender identity or expression. And while he did not expressly say he would veto the bill, he indicated he was "troubled" by some aspects of it and suggested that he needs to study the issue further.

News: HI & VT laws; Wendy's and ExxonMobil

Poinography reports on the new Hawaii law prohibiting discrimination on the basis of gender identity and sexual orientation:

"HB 1233 became Act76 without the Governor's signature yesterday. As expected, her message (PDF) explaining why she would not sign the bill into law cites (bogus)
concerns over privacy in public accomodations (read restrooms and locker
rooms)."

Vermont Senate approves gender identity nondiscrimination bill

"...it now seems likely to pass. When it came up on the Senate calendar late
Wednesday, it was quickly debated and passed and then forwarded immediately to
the House. House leaders said they were likely to concur with changes the Senate
made to the bill and send it to the governor."

Wendy's International Adds Policy Protections: " Fast food chain Wendy's International has agreed to amend its employment nondiscrimination policy by adding new written protections based on sexual orientation and gender identity for all employees."The change came after lobbying by one of the company's biggest shareholders.

ExxonMobil Shareholders Vote on Anti-Discrimination Policy: A shareholder resolution is being voted on that, among other things, reads: "The company will prohibit discrimination based on sexual orientation and gender expression or gender identity as part of its written employment policy statement."