Title VII Awakening

While the advancement of transgender Americans has sometimes been viewed as dependent upon the success of the broader LGBT movement, workplace protections are one place where trans Americans are pioneering a whole new area of the law—and lesbians, gays, and bisexuals appear to be following their lead.

In a series of court decisions over the past couple of decades, the definition of what constitutes “sex discrimination” under Title VII of the Civil Rights Act of 1964 has broadened considerably to include discrimination against transgender employees. But a new development in a case earlier this year could foretell a further evolution of Title VII to cover LGB workers as well.

Since 2004, several federal courts have ruled in favor of trans plaintiffs making discrimination claims, but the first court of appeals case to unequivocally equate anti-trans bias with sex discrimination was Glenn v. Brumby. The case was brought by Lambda Legal on behalf of Vandy Beth Glenn, who was fired from her job as a legislative editor for the Georgia General Assembly based on her intent to transition. The 11th Circuit Court of Appeals, which covers Florida, Georgia, and Alabama, ruled in Glenn’s favor in December 2011, restoring her to her original post at the state legislature.

“It was the first federal appeals court decision to really make the explicit connection that discrimination against a transgender employee is always a form of discrimination on the basis of nonconformity with sex stereotypes,” explains Ilona Turner, legal director at the Transgender Law Center.

Several months later, the Equal Employment Opportunity Commission—the federal agency charged with enforcing laws that prohibit workplace discrimination—went a step further by expanding the definition of discrimination under Title VII to include antitrans bias in a case known as Macy v. Holder, brought by the Transgender Law Center.

“[W]e conclude that intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination ‘based on…sex,’ and such discrimination therefore violates Title VII,” read a unanimous ruling from the five EEOC commissioners in April 2012. A footnote at the bottom of the page further clarified: “With this decision, we expressly overturn…any contrary earlier decisions from the Commission.”

The ruling, while only binding for federal agencies, is considered very influential because it is instructive to federal courts that are addressing the issue for the first time. It also codified a trend in case law that had been building over time. Any judge who runs afoul of the EEOC decision will have to at least address the issue or risk being overturned.

“No judge likes having their rulings overturned, so Macy is definitely an important decision,” says Dr. Jillian Weiss, a law professor at Ramapo College of New Jersey and a trans advocate who litigates trans discrimination cases.

But the latest twist that shows promise for the broader LGBT movement comes from Washington, D.C., where federal district court judge Colleen Kollar-Kotelly ruled that a gay man, Peter TerVeer, could move forward with a sexual orientation discrimination claim under Title VII.

“TerVeer is a homosexual male whose sexual orientation is not consistent with the Defendant’s perception of acceptable gender roles,” read the original complaint.

The lawyer who is handling TerVeer v. Billington, which will likely take another couple years to litigate, calls the development a “giant step forward” for workplace protections based on sexual orientation.

“In the past, the trend had been that an LGBT individual—under sex stereotyping theory—had to act outside of his or her gender norm at work,” says attorney Christopher Brown, of the law firm Ackerman Brown, lead counsel on the TerVeer case. “If a man were to wear effeminate clothing or were to walk or speak effeminately, he may have had a claim. And vice versa, if a female expressed typically male dress or mannerisms, she may have had a claim. Now, for the first time, we’re seeing that’s no longer necessary.”

Chai Feldblum, a former law professor who was appointed to the EEOC by President Barack Obama in 2010 and specializes in LGBT and disability rights, has been pushing the exact line of reasoning that Brown advanced in TerVeer.

“[A]ssume a male employee is fired because he marries another man,” Feldblum wrote in a New York Times op-ed earlier this year. “The reason for that employee’s firing makes reference to the sex of the people involved, and the antipathy to marriage by a same-sex couple is deeply embedded in a history of gender roles and sex stereotypes. From my perspective,” she concluded, “that is a simple case of sex discrimination.”

The headline of Feldblum’s article was “Existing Law Applies,” suggesting that antigay bias is already covered as “sex discrimination” by the Civil Rights Act of 1964.

To average gay Americans, it may seem a simple concept: Of course discrimination on the basis of one’s sexual orientation is discrimination based on sex stereotyping. But in the eyes of the law, Feldblum’s contention, if it prevails, could be the back-door revolution for a movement that has been struggling to pass employment protections for 40 years.

In fact, that’s the way trans activist Dr. Dana Beyer saw it when the EEOC issued its 2012 Macy ruling that Title VII covers transgender workers. While the issue is not considered entirely settled until the Supreme Court hears a relevant case and weighs in, Beyer views the EEOC’s stamp of approval as the next best thing.

“To me and to some of my friends, this was the most historic trans decision in American history,” says Beyer, who is currently a candidate for Maryland State Senate. Though Beyer still supports efforts to pass explicit workplace protections for LGBT employees, after talking to a number of lawyers, she concluded that Title VII protections were at least as good as being covered under the Employment Nondiscrimination Act.

Of course, many LGBT activists are understandably leery of dropping the legislative push for protections specific to lesbian, gay, bisexual, and transgender workers. And for trans rights activists in particular right now, it comes down to a question of strategy.

“Should advocates emphasize Macy in hopes of increasing its authoritativeness? Or should advocates emphasize the continuing lack of explicit protections in order to push for legislation from Congress and an executive order on federal contractors from the president?” asks Tobias Barrington Wolff, an LGBT advocate and law professor at the University of Pennsylvania. “Personally, I think that Macy should be getting more attention, but I recognize that the strategic question is a difficult one.”

In fact, one advantage of passing legislation is that it would elevate the issue in national headlines and help educate citizens across the country. The Macy decision, as groundbreaking as it is, still hasn’t received that kind of attention.

“One of the biggest challenges we have is educating people about these legal protections,” explains Turner.

She feels confident that a transgender employee could go to court or a regional EEOC office and have a strong chance of winning on the point that Title VII does, in fact, protect trans employees who are discriminated against because of their gender identity.

“But almost nobody knows that that is the case,” Turner adds. “Transgender people don’t know it; gender nonconforming people don’t know that; lesbian, gay, and bisexual people don’t know that; and employers, most importantly, don’t know that.”

Despite the need for greater education, legal advances made by transgender plaintiffs like Glenn and Diane Schroer (who won a key trans discrimination case against the Library of Congress in 2008) are clearly leading the way on an issue that has foiled the greater gay rights movement for half a century.

Following the Macy ruling, the EEOC began tracking “sexual orientation” and “gender identity/transgender” charges that have been made under the greater umbrella of sex discrimination claims. From January to September of 2013, 802 total charges were filed; 161 of those fell under gender identity and 667 were sexual orientation charges. It’s worth noting that many people file charges claiming multiple types of discrimination, so not every one of the those charges represents an individual filing.

Certainly, the fact that the EEOC is now tracking these categories marks progress. But as one might expect, transgender and sexual orientation charges still only account for a tiny fraction of the total sex discrimination charges filed in fiscal year 2013 (Oct. 2012—Sept. 2013): 27,687.

But the field is growing rapidly. Lambda Legal, which officially launched its Transgender Rights Project in July 2013, has seen its trans caseload triple over the last several years, according to the program’s director, attorney Dru Levasseur. Even with the expansion, he says, “We are still not meeting the massive needs of the trans communities we serve.”

Weiss, who has served on Lambda’s Board of Directors since 2012, says LGBT organizations have really begun to see the value and importance of trans issues over the last couple years. “Not as an appendix to lesbian and gay issues or marriage equality,” she says, “but as a really integral part of their litigation programs.”

For her part, Weiss began representing trans clients in Title VII discrimination cases in 2011 after ENDA failed to pass in what she calls the “Democratic triple-play majority” of 2009-2010.

Weiss has taken on 10 cases, all of them against private employers, and so far the EEOC has ruled in her client’s favor several times and two cases have settled.

“I am pleased with all of these,” she notes. “This is a way for me to help an individual human being and to know that I made a difference for them.”