When discussing discrimination against the transgender community in any form, it is of the utmost importance to be respectful and aware. To truly understand how transgender individuals are discriminated against, you must first understand that discrimination begins with language used to undermine how a transgender individual identifies themselves.
It is absolutely imperative to note that most transgender individuals prefer the term transgender, over the term transsexual. In the past, it was believed that the difference between the two terms depended on the difference between gender as “in the mind,” and sex as “bodies and biology.”
However, scientists, transgender rights activists, scholars, attorneys, and the transgender community at large have all made it clear that there is no meaningful difference between sex and gender. Furthermore, definitions that intend to put biology in opposition to psychology are harmful and should be avoided in order to reduce harm to the transgender community.
Moving forward, this article will only refer to individuals as transgender, not transsexual. This is because the term transsexual is sometimes used to imply that a person has, or wants to have, gender affirmative surgery. This is not true of every transgender person. Transgender may be used as an umbrella term for any individual who does not identify with the gender or sex assigned to them at birth.
Many transgender individuals have rejected the term “transsexual” because the term places undue emphasis on “sex,” or that being trans is more about sexuality than gender identity. As such, it is much more respectful to use the term transgender. However, in practice, it is most respectful to ask each individual person which word they themselves use to identify their gender.
What is Transgender Discrimination?
Transgender discrimination refers to a person being discriminated against because they are transgender, or are otherwise gender nonconforming. Gender nonconforming can be described as not following society’s ideas or stereotypes of how a person should look or act based on the sex they were assigned at birth.
As of August 2017, the Equal Employment Opportunity Commission (“EEOC”) considers transgender discrimination to be a form of gender discrimination. As of a Supreme Court ruling in June 2020, discrimination against transgender individuals is a discrimination based on sex and is protected under Title VII of the Civil Rights Act.
Employers who engage in the following acts on the basis of a person’s race, color, religion, sex, or national origin has likely violated Title VII:
- Hiring and firing, meaning they have actively chosen not to hire or to fire a person based on their protected class and not on their qualifications or performance;
- Access to training or apprenticeship programs, meaning the employer does not make such advancement opportunities accessible to all employees;
- Scheduling work or work activities so they intentionally conflict with an employee’s religious holiday;
- Creating dress codes that intentionally discriminate against protected class employees, such as banning head coverings or deeming certain hairstyles as unprofessional; and/or
- Harassment, or failure to resolve a co-worker’s harassing behavior.
The above examples are not at all exhaustive, but are meant to provide a basic understanding of discrimination against protected classes. Transgender employees are considered to belong to a protected class. Some examples of transgender discrimination specifically include but are not limited to:
- Failing to hire an otherwise qualified applicant because they are transgender;
- Firing an employee that is planning to undergo or is currently undergoing gender confirmation procedures, including hormone replacement therapy and surgery;
- Firing an employee who did not initially disclose that they are transgender, as it is not required that they do so;
- Refusing access to a common restroom that corresponds with the employee’s gender identity;
- Denying a promotion or advancement opportunities to an otherwise qualified employee because they are transgender;
- Harassing an employee because of their gender identity; and/or
- Creating or enabling a hostile work environment, or encouraging any hostile work environment behavior, because an employee is transgender.
Are There Any Workplace Protections for Transgender Employees?
As recently as June of 2020, the Supreme Court in the United States ruled that LGBTQ+ workers are protected from workplace discrimination under Title VII. Although this issue was covered in 2017 by the EEOC, it was not until 2020 that LGBTQ+ employees were protected by legislation.
At the federal level, transgender and gender identity discrimination is illegal. Because of court and judicial processes, federal judges now interpret the EEOC’s protection from gender discrimination as extending to protect those who identify as transgender.
Courts have argued that if an employee is discriminated against due to their being transgender, they are being discriminated against because of their gender. Thus, it does not matter if the employee’s gender is different from the one assigned to them at birth, nor does it matter if they are undergoing or ever plan to undergo gender confirming therapies and procedures. The recent Supreme Court decision has made it clear that it is illegal to discriminate against a transgender employee, as they belong to a protected class.
What are “Bathroom Laws”?
A number of states have passed laws, or attempted to pass laws, that not only limit LGBTQ+ rights but disproportionately impact transgender people. “Bathroom laws” are just one such example, and another form of transgender discrimination. These laws essentially discriminate against transgender individuals by requiring them to use the restroom designated for their assigned at birth gender, not the gender they actually are.
These laws are usually written so it is illegal for a transgender person to use a bathroom meant for a different sex or gender. As such, it would be illegal for a man who was assigned female at birth to use the men’s restroom. That man would be forced to use the women’s bathroom even though he is not a woman.
These laws are now known to have been presented as a laudable attempt to keep sexual predators out of public restrooms. However, the bathroom laws incorrectly asserted that transgender people are potential sexual predators. The bathroom laws further encouraged violence and discrimination against the transgender community.
Bathroom laws generally encompass locker rooms, public schools, and public buildings. As of 2018, there is no federal law that specifically requires employers to adhere to or disregard the “bathroom laws” of their state. According to OSHA, “all employees should be permitted to use the facilities that correspond with their gender identity.”
Many of these “bathroom laws” have been or are being challenged by the legal system. Most have failed to pass legislation. The bills that do become law are examined, and should it be found that the bill was written solely to discriminate against LGBTQ+ individuals, the discriminatory parts of the bill are typically removed. Alternatively, the law may be revoked entirely.
Do I Need an Attorney For Transgender Discrimination?
Although the Supreme Court determined that same-sex marriage is a federal right in the United States, the LGBTQ+ community has been left largely unprotected against discrimination from their employers.
If you are facing any sort of workplace discrimination, especially as a transgender individual, it is imperative that you consult with a skilled and knowledgeable employment law attorney. An experienced employment law or discrimination attorney can help you protect your individual rights. Finally, an attorney can help initiate a lawsuit against the offending party, as well as represent you in court as needed.