Jenna Tackalova may not hold the title of Miss Universe Canada, but she made headlines recently as the pageant’s first transgender contestant. Controversy surrounded the 23 year old after she was initially disqualified from the competition on May 19, 2012 because she is not a “natural born female.” In response, the pageant owner stepped in, allowing Ms. Tackalova to compete. Beating out 59 other beauty queen hopefuls, Ms. Tackalova made the top twenty cut and ultimately came in 12th. Though her bid for the Miss Universe Canada crown was ultimately unsuccessful, Ms. Tackalova nonetheless brought considerable international media attention to transgender discrimination issues. Likewise, here in the United States, transgender rights advocates can celebrate significant recent advancement in the employment discrimination realm.
These advancements come after years of adversity and challenges. In February of 2011, the National Center for Transgender Equality (NCTE) and the National Gay and Lesbian Task Force published a report, titled “Injustice at Every Turn,” based on the largest survey to date of transgender discrimination, with 6,450 participants. According to Mara Keisling, executive director of the NCTE, a calamitous 41 percent of the study participants had attempted suicide, which is 26 times the national average. Specific to employment situations, 26 percent of the respondents reported having lost a job because they were transgender. Nearly half of the respondents reported that they experienced discrimination related to a hiring, promotion or compensation decision. Finally, a staggering 90 percent of transgender respondents reported harassment or other mistreatment in the workplace. Considering the substantial likelihood that a transgender employee will experience some form of employment discrimination, or feel that they have, employers should be aware of and safeguard against the legal consequences.
Employer awareness is particularly necessary as the Equal Employment Opportunity Commission (EEOC) recently reversed a traditional position held in some federal courts: that transgender individuals are not protected from discrimination under federal statues. Over the last several decades, courts underwent an evolution on this issue, with several recent decisions expanding protections for transgender employees. Ultimately, the EEOC held that transgender employees are covered under Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, religion, sex and national origin. In Macy v. Holder, the EEOC held that “claims of discrimination based on transgender status…are cognizable under Title VII’s sex discrimination prohibition.” To that end, the EEOC made it clear that such claims are cognizable under Title VII as claims of discrimination “based on … sex.” The case involved a veteran and former police detective who applied to work for the Bureau of Alcohol, Tobacco and Firearms. In her interview, Mia Macy was led to believe that because of her qualifications, she was virtually guaranteed the job following a routine background check.
When Macy later disclosed that she was planning to transition from male to female, which would impact the background check because she would also be changing names, Macy was informed that the position was no longer available. Macy was told that she lost the position due to funding cuts, but it later came to light that her prospective employer was uncomfortable with the gender change and gave the position to someone else. The Macy decision was hailed as a landmark case by transgender rights advocates, finally providing transgender employees the same employment discrimination protections that other groups have benefited from for almost half a century.
Employers should be aware that Title VII and the 14th Amendment’s Equal Protection Clause, which protects individuals from discrimination, may not be the only applicable safeguards against transgender employment discrimination. Currently, sixteen states and the District of Columbia, as well as 143 cities and counties, prohibit discrimination based on gender identity and expression. Importantly, these state-level prohibitions provide separate, additional layers of protection beyond federal transgender employment discrimination protections under Title VII.
The federal government is also considering legislation to protect against discrimination on the basis of being transgender, among other things. Since 1994, every session of Congress, but one, has proposed the Employment Non-Discrimination Act (EDNA). Advocating for passage of EDNA, the American Civil Liberties Union describes the bill as an opportunity for Congress to “ensure workplace equality by protecting [lesbian, gay, bisexual and transgender] workers from employment discrimination.” EDNA would protect employees from “discriminatory hiring, firing, promotion or compensation practices, as well as retaliation for reporting such practices.” By prohibiting states and municipalities from discriminating against their employees on the basis of sexual orientation or gender identity, EDNA would protect employees in the thirty-four states that have not yet passed similar legislation.
Most recently, on September 23, 2011, the House Education and Labor Committee held a hearing on EDNA. In addition to support from 178 members of the House, the Acting Head of the EEOC, Stuart Ishimaru, testified to the Obama Administration’s “strong support” of EDNA. He told the Committee that the “legislation will provide sorely needed and long overdue federal protection for lesbian, gay, bisexual and transgender individuals, who unfortunately face widespread employment discrimination.” While lawmakers have not been able to pass EDNA for the last eighteen years, employers can and should take actions now to implement policies prohibiting transgender discrimination in the workplace and in all employment-related decision-making.
In light of the EEOC ruling in Macy and the likelihood that EDNA will become law in the near future and many states, cities and counties will independently pass legislation to protect transgender workers, the time for proactive employer action to address this issue is now. The EEOC’s affirmative declaration in the Macy decision - that Title VII’s protections against employment discrimination apply to transgender employees - makes it clear: employers cannot lawfully let their attitudes or prejudices towards transgender people be a factor in employment decisions. Prudent employers should take proactive steps to ensure that theirs is a Title VII compliant workplace by training and educating employees and managers. To be sure, the law no longer tolerates transgender employment discrimination, and neither should employers.