Employment Discrimination and Transgender Rights in the US

Introduction

During the last several decades of the 20th century, medical science evolved sufficiently to offer surgical intervention in the form of gender reassignment procedures, allowing individuals with transgender identity to alter their external anatomical structures to align with their psychological gender orientation. Typically, these procedures are preceded by extensive psychological screening as well as long-term hormone treatment prior to any surgical intervention. Whereas transgender identity was previously considered to represent a manifestation of pathological psychological issues, the modern understanding in the medical and psychological community is that its roots are largely biological rather than the product of psychological or psychosocial abnormality (Gerrig & Zimbardo, 2005).

However, in much the same way that homosexuals have endured ridicule, abuse, and harassment from coworkers, transgender individuals have also been subjected to negative comments by coworkers and to unjustified disparate treatment by supervisors and administrators. Typical examples include workers with superior performance records being demoted and fired after disclosing their transgender identity (ACLU, 2006), employment offers rescinded after disclosure (ACLU, 2006), and patterns of coworker harassment tolerated by management (Koch & Bales, 2002).

Since the American Civil Rights Era of the 1960s, employment discrimination based on suspect classifications such as race, color, religion, sex, or national origin has been prohibited under Title VII of the Civil Rights Act of 1964. However, the original wording of the Civil Rights Act does not further define the term sex, and subsequent proposals to amend Title VII in that regard have been unsuccessful. As a result, federal law does not specifically address the rights of transgender individuals except to the extent their circumstances may fit within alternate legal theories of liability — such as discrimination against physically or mentally disabled individuals under the Americans with Disabilities Act (ADA) or the Age Discrimination in Employment Act (ADEA).

Only nine states have passed comprehensive anti-discrimination laws that specifically protect transgender individuals from workplace discrimination: Hawaii, Illinois, Maine, Minnesota, New Jersey, New Mexico, Rhode Island, Washington, and the District of Columbia. In other states, discrimination against transgender individuals in the workplace must involve concurrent legal theories recognized under either state or federal law.

Literature Review

Therefore, in addition to the complete lack of national uniformity in employment law regarding transgender discrimination, the current situation provides potential indirect avenues of relief for some transgender employees while utterly ignoring identical acts of discrimination against other equally aggrieved parties. This constitutes a patently unfair climate that, in principle, ignores the fact that, according to contemporary psychological authorities (Gerrig & Zimbardo, 2005), transgenderism is a bona fide — albeit very rare — form of natural human gender psychology. As such, disparate treatment under the law must be recognized as a violation of existing concepts of equal protection under the Fourteenth Amendment of the U.S. Constitution with respect to the federal government, and, since 1914, under the Fourteenth Amendment as applied to the states through the Due Process Clause of the Fifth Amendment (Friedman, 2005).

Mounting evidence suggests that transgenderism is not the result of psychological maladjustment, traumatic experience, or any other form of abuse (O'Neil et al., 2008). Rather, anecdotal evidence illustrates that transgender identification is often apparent in childhood, toddlerhood, and even infancy — long before any possible understanding or awareness of sexuality and gender identification (Nuttbrock et al., 2002). Empirical studies have been limited by the extreme rarity of available transgender subjects (Koch & Bales, 2008), but to the extent they have been conducted, their results corroborate anecdotal observations (O'Neil et al., 2008).

Civil Rights and Employment Law

Furthermore, several empirical studies have concluded that, to the extent transgender individuals suffer from psychological trauma and social maladaptation, it is an effect of the response of others in society to their transgender orientation — not a cause of it. The evidence suggests that where families and society accept the choice of individuals to live as transgender without criticism, rejection, ridicule, or social persecution, transgender individuals are fully capable of living fulfilled, psychologically healthy lives and of performing vocationally without any impairment attributable to their gender orientation (Nuttbrock et al., 2002).

Prior to the American Civil Rights Era, discrimination — both generally and in employment — was virtually unregulated, with many American businesses routinely publishing discriminatory policies such as "No Irish Need Apply," "No Jews Need Apply," and "Whites Only" (Friedman, 2005). In fact, even after enactment of the Civil Rights Act of 1964, many southern states persisted with patently discriminatory policies until eventually redressed by civil suits and government action (Friedman, 2005).

Title VII, as amended in 1991, specifically prohibits employment discrimination in the form of failure or refusal to hire, or the discharge of, any individual with respect to compensation, terms, conditions, or privileges of employment because of that individual's race, color, religion, sex, or national origin. Except for the addition of protections against discrimination based on pregnancy (by Congress) and based on "gender nonconforming behavior" (by the Supreme Court), efforts to further expand the concept of sex subject to statutory protections under the Civil Rights Act have been completely unsuccessful (Friedman, 2005).

Only nine states have specifically recognized transgenderism as an explicit component of the definition of sex with respect to statutes addressing sex-based employment discrimination, and all employ different terminology and definitions in that regard (Friedman, 2005). As a result, allegations of employment discrimination are adjudicated differently across all 50 states (Koch & Bales, 2002), ranging from full protection in some states to no protection at all in others — or, under federal law, only where some concurrent legal basis for recovery exists (Koch & Bales, 2008). Various federal agencies have adopted internal anti-discrimination policies for the benefit of transgender individuals (Wells, 2003), but absent voluntary recognition of this nature, many aggrieved transgender employees and job applicants have no viable legal recourse for discrimination predicated on their transgender orientation.

In 2005, the American Civil Liberties Union (ACLU) filed a brief against the Library of Congress on behalf of an American veteran whose imminent employment offer was summarily revoked immediately after she disclosed that she was a transgender individual living as a female. The case proceeded before the Supreme Court, and early indications were favorable, given the Court's rejection of the Library of Congress's argument for dismissal — namely, that transgenderism is not validly covered by federal law prohibiting discrimination on the basis of sex. Recognizing the contemporary position of the psychological and medical communities, the Court determined that human sexual identity is no longer necessarily "a cut-and-dried matter of chromosomes" (Koch & Bales, 2008).