Transgender Employment Discrimination and Title VII Protections

Introduction

The word transgender is an umbrella term that includes individuals whose gender identity and expression — in other words, their internal and external sense of being female, male, or neither — is not aligned with their anatomical sex, meaning the anatomical composition of their XX and XY chromosomes that are naturally assigned to them at birth (Singh, Hays & Watson, 2011). Within this broad umbrella term are a number of diverse subgroups of individuals who self-identify using a wide range of terms, including MTF (male-to-female, meaning those transitioning from male to female), FTM (female-to-male, meaning those transitioning from female to male), transsexual (individuals securing surgery and/or hormones), gender-queer (individuals not identifying with the labels of "male" or "female"), and a number of others as well (Singh et al., 2011). The term can also include those who engage in part-time behaviors reflective of the opposite sex.

For instance, Lee (2011) advises that "transgender people live part-time or full-time as members of the other gender [and include] anyone whose identity, appearance, or behavior falls outside of conventional gender norms. . . . However, not everyone whose appearance or behavior is gender-atypical will identify as a transgender person" (p. 27).

Because of this wide range of gender diversity within the transgender community, there remains a fundamental lack of understanding on the part of U.S. society concerning these individuals, often resulting in transphobia and transprejudice (Singh et al., 2011). These types of phobias are caused by a lack of understanding of the basic mechanisms involved. For instance, according to Storrow (2002), "the traditional view holds that the sexed body — one's inside — is immutable, whereas gender identity — one's outside — is mutable. Yet for the transgendered person, the sexed body — one's outside — is regarded as mutable while one's gendered identity — one's inside — is experienced as immutable" (p. 131).

Complicating matters even further for human resource practitioners is the dynamic nature of the law and regulations concerning the administration and adjudication of transgender employment discrimination cases. Furthermore, there is a growing body of evidence indicating that transgender individuals frequently experience discrimination at some point during the employment process. In this environment, identifying opportunities to reduce employment discrimination against transgender individuals and providing human resource practitioners with an overview of the controlling legislation and relevant case law represents a timely and valuable enterprise, as discussed further below.

History of the Law

Immediately following the end of the Civil War, and again in 1957 and 1964, the United States enacted a series of civil rights acts that affected the American workplace in fundamental ways. Of particular interest is Title VII of the Civil Rights Act of 1964, which is perhaps the best known of all federal laws prohibiting employment discrimination. According to Black's Law Dictionary, the Civil Rights Act of 1964 is "the federal statute intended to implement and give further force to basic personal rights guaranteed by the Constitution. The Act prohibits discrimination based on race, color, age, or religion" (p. 246). As amended, the Act also prohibits discrimination on the basis of national origin (Condrey, 2005).

In sum, Title VII applies to all personnel functions including hiring, firing, compensation, promotion, classification, training, apprenticeship, employment referrals, union membership, and the terms, conditions, and privileges of employment. In addition, under Title VII, it is illegal to harass employees because of their sex, race, color, religion, or national origin (Condrey, 2005). Notwithstanding this progress in promoting the civil rights of all Americans, some groups continue to experience discrimination in the workplace, as discussed further below.

Issue Synopsis: Limitations of Title VII

In essence, Title VII is intended to address institutionalized discriminatory practices and provide an equitable human resource environment in which candidates and employees receive equal opportunity. In this regard, Title VII of the Civil Rights Act of 1964 was developed to "remove artificial, arbitrary, and unnecessary barriers when such impediments operate invidiously to discriminate against individuals" (Schneid, 2011, p. 41). Therefore, by definition, the barriers targeted by Title VII frequently defy easy identification and, once identified, defy simple solutions. On its face, the provisions of Title VII are clear: the Act prohibits discrimination against race, sex, color, creed, national origin, pregnancy, age, disability, and equal pay and compensation, and prohibits sexual harassment within the workplace. The United States Equal Employment Opportunity Commission (EEOC) is the federal agency tasked with enforcing these provisions.

While Title VII has been in existence since 1964 and was modified in 1991, it has failed to completely eradicate discrimination from the workplace. In 2009, a total of 93,277 bias discrimination complaints were filed against employers, at a cost of $376 million in victims' relief (EEOC, 2010, para. 1). Title VII has significantly improved opportunities in the workplace for a wide range of American citizens; however, a number of obstacles remain that adversely affect the ability of some individuals — including transgender individuals — to gain access to meaningful employment opportunities.

Certainly, Title VII is not a cure-all, nor does it protect all workers against wrongful employment discrimination, nor does it adequately or consistently protect the workers it was supposed to cover. Title VII is an admirable and somewhat effective step — but it is "but a first step." In order to address the discrimination of today and potentially eradicate the discrimination of the future, change is needed.

Employment is the cornerstone for nearly all other rights and privileges in American society. Without employment, an individual likely cannot afford basic necessities such as shelter and nutritious food, cannot hope to obtain a quality education, cannot afford health care, and cannot even contemplate discretionary purchases that enrich and invigorate life. All individuals need equal opportunities to earn a living and to provide for themselves and their dependents. Title VII does not provide such things to all workers as currently constructed. For many employees, Title VII is more a symbolic recognition of their situation than a source of substantive support.

Currently, Title VII arbitrarily assigns individuals into classes that are repeatedly defined and interpreted narrowly to avoid granting employment non-discrimination protections and equal employment opportunities to qualified workers. No regulatory scheme will likely ever eradicate all discrimination in the workplace, but a different regime is needed — one that would result in less discrimination and would protect fewer individuals and groups from being left unprotected. Currently, only 43 percent of state employees work in a state with a law prohibiting discrimination based on sexual orientation, and only 31 percent work in a state that also prohibits discrimination based on gender identity. The background and significance of these issues is discussed further below.