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Transsexual and Transgender Discrimination

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What is the Difference Between Transgender and Transsexual?

A person who identifies as transgender is a person who identifies, expresses, or otherwise conforms with their sex at birth. A person who identifies as transsexual is a person who, typically, underwent or is going through the process of transition from their sex at birth to the sex they identify with. Gender is in the mind, whether the person considers themselves to be "male" or "female", whereas sex is a question of biology and physiology.

What is Transgender or Transsexual Discrimination?

Transgender or transsexual discrimination is when a person is discriminated because they identify as transgender/transsexual or are otherwise “gender non-conforming.” As of August 2017, the Equal Employment Opportunity Commission (EEOC) considers transgender/transsexual discrimination to be a form of gender discrimination, which is protected under Title VII of the Civil Rights Act.

Some examples of transgender/transsexual discrimination are:

  • Failing to hire an applicant because they are a transgender woman;
  • Firing an employee that is planning or currently undergoing gender transition;
  • Not allowing an employee to access a common restroom that correspond with their gender identity;
  • Denying an employee promotion due to gender identity;
  • Harassing an employee due to their gender identity; and
  • Any hostile work environment behavior that is due to the employee’s gender identity.

Protection for Transgender or Transsexual Discrimination

Due to changes on the federal level, as of August 2017, transgender/transsexual and gender identity discrimination is illegal. Through the courts and judicial process, federal judges have interpreted the EEOC’s protection from gender discrimination to “extend” to protect individuals who identify as transgender/transsexual.

The courts argued that this is due to the fact that employees discriminated due to identifying as transgender/transsexual are discriminated due to their gender. Whether it is because their gender identity does not match their birth sex or if they’re undergoing gender transition, the fact remains that the discrimination is due to the employee’s gender.

Understanding “Bathroom Laws”

Since same-sex marriage was legalized, a number of states have passed or attempted to pass laws that limit the rights for LGBT individuals. But many of these laws disproportionately impact transgender/transsexual individuals.

Many states created “bathroom laws” under the logic that it is meant to keep sexual predators out of the restroom of the opposite gender. The laws were often written to make it illegal for any person to use a restroom belonging to the sex different from their birth. This means a person who underwent completely gender reassignment surgery must still use the bathroom of their birth at sex. Some states will allow you to change your sex on your birth certificate, but this process is long and difficult to achieve.

These type of laws often encompass locker rooms, public schools, and public buildings. The laws use wording like:

  • Determined by the person’s chromosomes;
  • Determined by sex at birth;
  • Determined by sex on birth certificate; or
  • Determined by person’s sexual anatomy at birth.

Many of these laws are challenged in the legal system or fail to pass legislation. But some bills do become law, and if any bill is found to be written for the sole purpose to discriminate against LGBT individuals, then the parts that discriminate are often removed or the law is revoked altogether.

Do I Need a Lawyer?

Individuals who struggled and grappled with gender identity have faced an uphill battle all their lives. After the Supreme Court determined that same-sex marriage is a federal right, many LGBT individuals faced even more troubles from employers at their community. Do not accept any discrimination on the basis of your gender identity. Find an experienced employment lawyer who can help you put an end to discrimination in your workplace.

Photo of page author Janice Lim

, LegalMatch Content Manager

Last Modified: 08-29-2017 03:48 PM PDT

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