Federal policy improvements for trans people (day 4 of 5)
Day 4 of recent policy changes that improve the lives of trans and LGBQ individuals.
Recently, several courts have indicated even broader protection from sexual orientation discrimination under the gender stereotyping theory. These courts have done so by recognizing that hostility towards LGB people is, by its very nature, hostility towards a failure to conform to the gender stereotype that people form romantic relationships with the opposite sex. [xxiii] As the District Court for the District of Massachusetts explained: “‘[S]tereotypes about homosexuality are directly related to our stereotypes about the proper roles of men and women….The harasser may discriminate against an openly gay co-worker, or a co-worker that he perceives to be gay, whether effeminate or not, because he thinks, ‘real men don’t date men.’ The gender stereotype at work here is that ‘real’ men should date women, and not other men.” [xxiv]
Last year, the Equal Employment Opportunity Commission (EEOC) affirmed protection for transgender employees under Title VII in Macy v. Holder.[xxv] The EEOC found that “claims of discrimination based on transgender status, also referred to as claims of discrimination based on gender identity, are cognizable under Title VII’s sex discrimination prohibition.”[xxvi] The Commission found that the Complainant’s claims of discrimination based on sex, sex stereotyping, gender transition/change of sex, gender identity, and transgender status all equated to discrimination based on sex because “sex” under Title VII includes biological sex and gender.[xxvii] The Commission noted that “the statute’s protections sweep far broader than [just biological sex], in part because the term ‘gender’ encompasses . . . the cultural and social aspects associated with masculinity and femininity.”[xxviii] Though the Commission acknowledged that gender identity was not a basis for discrimination Congress had in mind when passing Title VII, it also “noted that statutory prohibitions can combat ‘reasonably comparable evils’ and that the Supreme Court has repeatedly extended Title VII to new circumstances.”[xxix]
[xxiii] Centola, 183 F. Supp. 2d at 410; Heller v. Columbia Edgewater Country Club, 195 F. Supp. 2d 1212, 1124 (D. Or. 2002) (finding that a claim for discrimination based on gender stereotypes was actionable where an employer did not approve of a lesbian employee because she “is attracted to and dates other women, whereas [the employer] believes that a woman should be attracted to and date only men.”). See also Koren v. Ohio Bell Tel. Co., 894 F. Supp. 2d 1032 (2012) (finding that discrimination against the plaintiff based on taking his husband’s surname—“a ‘traditionally’ feminine practice”—could constitute a failure to conform to gender stereotypes).
[xxiv] Centola, 183 F. Supp. 2d at 410.
[xxv] Macy v. Holder, Appeal No. 0120120821 (EEOC Apr. 20, 2012)
[xxvi] Id. at 4.
[xxvii] Id. at 5.
[xxviii] Id. at 6.
[xxix] Employment Law – Title VII – EEOC Affirms Protections for Transgender Employees – Macy v. Holder, No. 0120120821, 2012 Wl 1435995 (E.E.O.C. Apr. 20, 2012), 126 Harv. L. Rev. 1731, 1734 (2013).