Getting and keeping a regular job is out of reach for many transgender and gender-nonconforming (TGNC) people, and sometimes steady employment is no better: Whether accused of using the “wrong” bathroom, harassed for not matching one gender stereotype or another, or being the only one in the office turned down for medically necessarily health care, TGNC employees often endure humiliating treatment and unfair policies every day of the week.
(To read our FAQ about transgender rights in the workplace, click here.)
Employment is one of the most legally challenging and personally difficult areas for transgender people. Work is essential: Many people define themselves by it, spend lots of time doing it, and can’t make a living or find health care coverage without it. In a 2011 transgender survey, 90% reported workplace mistreatment or discrimination, and 26% said they lost work because of their gender identity or expression.
Being fired may be the last straw for someone already struggling with workplace tensions or outright abuse. Transgender survey respondents who had lost a job because of anti-trans bias were four times as likely to be homeless as those who didn’t lose a job; 70% more likely to have drinking or drug problems; and 50% more likely to be incarcerated.
Federal lawmakers and advocates have been working for more than 15 years to pass an Employment Non-Discrimination Act (ENDA) barring anti-LGBT discrimination nationwide. But meanwhile, there’s been some success using federal sex discrimination law and state disability law. Some states and cities are moving ahead with ordinances as well.
Private industry’s record is a mixed bag. Some 45% of Fortune 100 companies have transgender-inclusive nondiscrimination policies. But many are just getting around to ending discrimination in their health insurance policies, thanks in part to a revised Human Rights Campaign Corporate Equality Index. In Esquivel v. Oregon, Lambda Legal successfully argued that a transgender state employee’s denial of medically necessary health care amounts to employment discrimination (for Lambda Legal’s FAQ on coverage for transition-related health care, click here).
What’s especially important at this point is for employers and state and federal governments to be explicit about protecting transgender workers, whether by clarifying existing protections under sex as encompassing “gender identity” or by adding a separate category.
Otherwise, even very extreme and obvious discrimination—such as that faced by Vandy Beth Glenn, a Georgia State Assembly employee fired after years of service when she attempted to transition on the job (see "My Story" below)—will continue to require considerable sweat, tears, time and money to challenge. Even many well-meaning employers will remain confused about how their transgender employees are protected by law.
MY STORY: A MOMENT OF DESPAIR TURNS TO VICTORY
Vandy Beth Glenn
“I lost my job as an editor for the Georgia General Assembly when I told my boss I planned to transition. He told me that that would be seen as ‘immoral’ and couldn’t ‘happen appropriately’ in the workplace. Not a day went by that I didn’t think about that moment. Every day I revisited the anger, humiliation and despair I felt.
“In August 2010 a lower court ordered me reinstated. While the case was appealed to the Eleventh Circuit, I received my full salary and benefits. My appeal was heard in December 2011 and we had a positive decision just five days later. The Eleventh Circuit upheld the lower court ruling that the Georgia General Assembly had discriminated against me. And now I’m back to work!
“I wish I could promise all similar cases will have a similar outcome. Until a federal law like ENDA is in place, the fight isn’t over. However, the more people come out and assert their identities, the better it will be for all of us.”
FOR MORE INFORMATION: Contact Lambda Legal at 212-809-8585, 120 Wall Street, 19th Floor, New York, NY 10005-3919. If you feel you have experienced discrimination, call our Legal Help Desk toll-free at 866-542-8336 or go to www.lambdalegal.org/help.