April has been a month of ups and downs for advocates of extending civil rights to transgender people; while the month started with the Obama administration dodging a request to act on the issue, it ended with another arm of the government affirming the rights of transgender people in the workplace.
The affirmation came from the U.S. Equal Employment Opportunity Commission, which on April 20 issued a ruling in the case of Mia Macy, a transgender woman who filed a complaint against the federal Bureau of Alcohol, Tobacco, Firearms and Explosives. In 2010, Macy—who, at the time, had not yet transitioned from male to female—moved with her family from Arizona, where she was a police detective, to California, where she applied for a job with ATF. According to her complaint, Macy was initially told by an ATF supervisor that the job was hers, pending a background check.
A couple of months later, with the final background check still incomplete, Macy informed the private contractor hired by ATF to fill the position that she was undergoing a gender transition. Within a week, she received a letter from the contractor saying the position would not be filled, due to budget constraints. Shortly after, she learned that someone else had been hired for the position.
In June of 2011, Macy, represented by the Transgender Law Center of San Francisco, filed an EEOC complaint, asserting that she lost the job because she is transgender. EEOC, however, informed Macy that she must pursue her complaint internally through the Department of Justice—under which ATF falls—as EEOC did not have jurisdiction over claims of discrimination on the basis of “gender-identity stereotyping.” Macy then appealed the EEOC decision not to take on her complaint. In last week’s ruling, EEOC reversed its earlier position, saying cases of alleged transgender discrimination did, indeed, fall under its purview, and it would accept Macy’s complaint. A final ruling is likely months away.
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Macy’s case establishes important precedent, clarifying that transgender people are protected against job discrimination under Title VII of the Civil Rights Act, which also prohibits discrimination based on sex, race, religion and national origin. While protections for transgender people have been confirmed numerous times in federal courts, the EEOC ruling will mean consistent enforcement from the very agency charged with overseeing workplace protections.
The ruling was cheered by the National Gay and Lesbian Task Force, which in a 2011 study, “Injustice at Every Turn,” reported that 26 percent of transgender people it surveyed said they’d lost a job because they were transgender, and 90 percent experienced mistreatment or discrimination or felt they needed to hide their transgender status. (The report also looked at discrimination in other areas, including housing and healthcare.)
In a prepared statement, Rea Carey, executive director of the task force, called the EEOC ruling a “historic victory for transgender people and their families,” noting that workplace discrimination “jeopardizes their ability to have or keep a job, have a roof over their head, and feed and take care of their family.” In Macy’s case, according to Carey, her family’s house was foreclosed on when the ATF job she’d been counting on disappeared, causing the family to fall behind in their mortgage payments.
The National Gay and Lesbian Task Force also called for extending legal protections for transgender people in the 34 states that currently don’t offer them (New Hampshire is the only New England state not to offer legal protections based on gender identity, although it does ban discrimination based on sexual orientation), and for the passage of the federal Employment Non-Discrimination Act, which would prohibit discrimination based on sexual orientation or gender identity. The bill, which has been filed in Congress multiple times since the mid 1990s, is supported by the Obama administration.
But the president’s support appears to go only so far—especially as the November election fast approaches. Earlier this month, Obama declined to honor a request by 72 members of Congress that he sign an executive order prohibiting job discrimination against transgender people.
In an April 3 letter to the president, the members of Congress praised his “leadership advancing equality for lesbian, gay, bisexual and transgender (LGBT) Americans” and his administration’s “efforts to build an America that is fully inclusive of all people, regardless of their sexual orientation or gender identity.
“But, as you know,” the letter continued, “more work needs to be done.”
Specifically, the members asked for an executive order “that would prohibit federal contractors from discriminating in the workplace based on an individual’s sexual orientation or gender identity.” Such a move, they wrote, would extend the protections created when Lyndon Johnson signed, in 1965, an executive order prohibiting discrimination on the basis of race, religion, sex or nationality.
“The opportunity to expand protections against workplace discrimination to members of the LGBT community is a critical step that you can take today,” they wrote.
The signers included, from Massachusetts, U.S. Reps. Jim McGovern, Barney Frank, Michael Capuano and Niki Tsongas. Neither of the Congressmen from Western Mass., Richie Neal and John Olver, signed the letter. (Assuming he wins re-election, McGovern will represent certain Valley communities, including Northampton, Greenfield and Amherst, beginning in 2013, due to changes brought by legislative redistricting.)
In response to the Congressional letter, the Obama administration issued a statement reiterating the president’s support of the Employment Non-Discrimination Act. “The president is committed to lasting and comprehensive change and therefore our goal is passage of ENDA, which is a legislative solution to LGBT … employment discrimination,” a White House spokesperson said.
One problem: that bill doesn’t appear to have much of a chance of passing, given the Republican domination of the House. Indeed, some critics believe that Obama won’t touch a proposed executive order because of fears that the move would be exploited by Republicans for gain among conservative voters in this fall election. “This is a political calculation that cannot stand,” Tico Almeida, president of the LGBT-rights group Freedom to Work, recently told the Washington Post.
