Gender Identity Discrimination
While transgender employees have been increasingly successful in relying on Title VII’s prohibition of sex discrimination to combat anti-transgender discrimination (for more about that, see “How are transgender employees protected by federal sex discrimination laws?”), currently there is no federal antidiscrimination statute that contains an explicit “gender identity” provision.
However, President Obama’s Executive Order 1148 in July 2014 explicitly forbids both federal agencies and private firms receiving federal contracts from discrimination based on “gender identity.”
In Congress, the Employment Non-Discrimination Act (ENDA) would explicitly forbid gender identity discrimination in both private-sector (nongovernment) jobs and public employment. Lambda Legal and other LGBT advocacy groups have withdrawn support from the current version of ENDA because it permits too much discrimination by religiously affiliated organizations. We are working with congressional leadership and our allies on better bill language to provide LGBT workers the protections they need.
At the state level, 18 states and the District of Columbia expressly ban discrimination based on gender identity in public and private workplaces, as do nearly 200 cities and counties across the United States. This is in addition to numerous protections specifically for municipal employees.
Also, a growing number of private companies have put into place antidiscrimination policies that cover bias against transgender people.
Finally, while the federal Americans with Disabilities Act (ADA) has language that explicitly excludes transgender people from its protections, some advocates have been successful in bringing disability claims on behalf of transgender people based on state law, especially where state disability law mirrors the ADA but does not have the ADA’s exclusion of protection for transgender employees.
Over the past fifteen years, federal appellate courts have increasingly recognized that discrimination against a transgender individual because that person is transgender is a form of sex discrimination prohibited by federal law. Lambda Legal has successfully handled some of that important litigation. These court decisions paved the way for a historic 2012 decision from the federal Equal Employment Opportunity Commission (EEOC) in the case Macy v. Holder, which held that such discrimination violates Title VII of the 1964 Civil Rights Act.
The EEOC concluded in Macy that Mia Macy’s discrimination claim on the basis of “gender transition/change of sex” was a valid claim of sex discrimination under Title VII because an employer is plainly acting on the basis of sex when the mistreatment is motivated by a person’s gender transition. The EEOC also ruled that because Title VII protects an employee who fails to conform to stereotypes in the workplace about how a man or woman should look or act, it must protect against discrimination on the basis of a person’s trans status because the status is defined by actions contradicting prevailing societal norms regarding gender.
The Macy decision relied especially heavily upon Lambda Legal’s groundbreaking victory less than six months earlier in the Eleventh Circuit on behalf of Vandy Beth Glenn, a legislative editor who was fired from her job with the Georgia General Assembly officer after announcing her intent to transition at work from male to female.
The EEOC’s Macy ruling is binding on the federal government and establishes definitively that federal transgender workers have protections under Title VII. It also supports transgender employees, public and private, anywhere in the country who feel they have experienced employment discrimination, because they can now file complaints with the EEOC, which will investigate complaints and, if they are found valid, pursue settlements and sometimes file lawsuits.
All employees should be able to use the restroom that corresponds to their gender identity. However, employers and coworkers don’t always understand and welcome that idea. Transgender people are sometimes forced to endure extreme discomfort or inconvenience just to keep a job—traveling some distance to use a gas station restroom, for instance, or simply “holding it.” While some employers have required transgender employees to use “single occupancy” restrooms, the better course is to provide that option to any employee who objects to a transgender employee’s bathroom use, since it addresses the objecting employee’s concern without imposing burdens on other employees.
The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA), however, prohibits employers from placing “unreasonable restrictions” on employees’ access to restrooms. For more information about restroom access rights, click here.
Most courts have held that employers are legally permitted to set reasonable gender-based dress codes as long as they don’t make the requirements more difficult for women than men, or vice versa. However, employers should treat transgender men as men and transgender women as women for all purposes, including the application of dress codes. The medical community recognizes that it is essential to the health and wellbeing of transgender people to live in accordance with their gender identity in all aspects of life, including gender expression via clothing.
Many employers continue to select health insurance plans that have explicit exclusions for transition-related health care. However, a fast-growing number of gatekeepers to health care are lifting their outmoded and discriminatory exclusions of transition-related care, most notably Medicare, but also many insurance companies— often because employers have requested the coverage or because state law requires that it be offered. The U.S. Office of Personnel Management, which is in charge of benefits for almost all federal employees, recently clarified that, beginning in 2015, it will remove its requirement that insurance companies exclude transition-related healthcare coverage.” In addition, a growing number of private-sector employers—including major firms such as Nike, Microsoft and Google—are leading the way in this area by offering trans-inclusive health care coverage as part of diversity initiatives. For more about access to transition-related health care, click here.
First, get a copy of your health insurance policy to see if there is any discriminatory exclusion language. If so, find out what the process is to appeal a denial of coverage. You will likely need to provide written documentation from your doctor that this treatment is medically necessary for you.
Consider using official statements from any of the following professional medical organizations as backup for your explanation that transition-related care is not cosmetic or elective and should be covered:
- American Academy of Family Physicians
- American College of Obstetricians and Gynecologists
- American Medical Association
- American Psychological Association
- American Psychiatric Association
- American Public Health Association
- National Association of Social Workers
- National Commission on Correctional Health Care
- World Professional Association for Transgender Health