As the ongoing fight about a trans-inclusive Employment Non-Discrimination Act (ENDA) bill rages on in the United States, a recent report in New York has raised questions about the effectiveness of such bills in tackling discrimination against transgender people in the workplace.

Undertaken by Make the Road New York (the “New York LGBTQ Justice Project”), the “Transgender Need Not Apply” report engaged in a rather stunning experiment. They investigated potential employment discrimination in New York by using the “matched pairs” methodology used in some social science experiments. The matched pairs of job applicants used were alike in every way (race, sex, age, qualifications, interview technique) except transgender status, thus attempting to filter out other variables in discrimination. Two pairs of job-seekers were sent out to the same interviews at high-end Manhattan stores like J. Crew, American Eagle and Virgin Megastore. The results were stunning.

Out of the 24 employers, 11 hired the cisgender (that is, not trans) applicant but not the trans one. At one store, both were offered jobs. In only one store (Virgin Megastore) was the trans applicant offered a job and the cis control group not. Most egregiously, at J. Crew and American Eagle, both cis applicants were offered jobs while the trans applicants were not. To summarize, the study found an “astonishing 42% discrimination rate” against transgender job seekers. For transgender people, this news will not come as much of a surprise, ringing true with anecdotal experience for mass unemployment in our community. Although there have been few large-scale studies on trans unemployment, some studies have suggested that trans people are up to 60% unemployed. A further survey undertaken by Make the Road found that 49% of their 82 transgender respondents had never been offered a job while living as a transgender person. So while a matched-pairs study involving only one transgender woman and one transgender man is undoubtedly limited, the results are nevertheless quite telling.

With such a small sample size we may debate the broader occurrence of discrimination, but what is clear from this experiment is that there is some significant measure of discrimination against trans people looking for work. What is even more significant is that New York City has had a law against transgender discrimination since 2002, and has fairly comprehensive protections against discrimination in education, housing, employment and public accommodations. Further, unlike some jurisdictions which define transgender access to anti-discrimination by surgical status, New York defines “gender” in the broadest possible terms:

The term “gender” shall include actual or perceived sex and shall also include a person’s gender identity, self-image, appearance, behavior or expression, whether or not that gender identity, self-image, appearance, behavior or expression is different from that traditionally associated with the legal sex assigned to that person at birth.

The point is, therefore, even with the most inclusive bill possible, in a city that has long been home to a large trans population, discrimination appears to be endemic and widespread eight years after the bill’s passing. The abilities of anti-discrimination bills to truly address employment systemic discrimination against marginalized populations, therefore, seem profoundly limited. As Joi-Elle White, a transgender member of Make the Road, says in the report:

“The law in New York has been out there since 2002 but it’s hard to enforce it. Employers are getting smarter is the only difference; they’re more polite when they don’t hire you. And if they hire you but later find out you’re trans, they’ll get rid of you for no reason. Like you came late once. Or they’ll say that you lied on the application about your gender. The real reason they’re firing you is you’re trans.

So while transgender bloggers have been rightly up-in-arms about Senator Barney Frank’s move to once again remove transgender protections from the ENDA bill, it’s worth noting how incomplete and and ineffective anti-discrimination bills can be. This is not a reason to not pass bills, or to pursue legal reform in transgender activism. Rather, as the New York experiment suggests, anti-discrimination bills can only ever be a first step and not an end point in themselves. Even if a trans-inclusive ENDA bill passed, depressingly, it is likely that as a community transgender people will be in roughly the same position, employment-wise.

Indeed, the Make the Road experiment also illuminates broader labor trends in the United States. Workers in the high-end retail jobs the matched pairs applied for have little to no protections themselves. Joi-Elle White’s comment suggests the vulnerability of workers in the retail and service industries, able to be fired for minor to non-existent infractions without any recourse.

The road to solutions to trans unemployment therefore is profoundly murky; however, there may be some hope in LGBT/Labor partnerships. As a tiny minority, transgender men and women have far from the numbers to cause the kinds of systemic change and education needed to reduce the discrimination in workplaces. Unions, however, have the power to create collective bargaining agreements, to advocate effectively for trans people in particular fields.

Less than 1 in 10 American workers is the member of a union. Perhaps the path to employment protection lies in joining unions, for despite the wishful thinking of free-market dogmatists, employers rarely make progressive changes out of the sheer kindness of their hearts. In practice, the invisible hand of the market rarely produces vicious competition and beneficent social change without prompting from either government or labor.

The election of Mary Kay Henry as president of the Service Employees International Union, the first openly queer person to hold the position, suggests that some activists have seen labor as a more productive route to GLBT rights. It is a path we can only hope that transgender activists will begin to follow in addressing the needs of the community.

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