Workforce.com

Protections for Transgender Workers on Rise

March 16, 2007
City commissioners in Largo, Florida, were not explicitly prohibited under federal law from voting to fire City Manager Steve Stanton after he disclosed his plan to have a sex-change operation. But discrimination law experts warn that any employer who takes similar action against a transgender employee may face a host of legal troubles.

    "I don't think there's any jurisdiction where it's quote-unquote ‘safe’ to discriminate," says Christopher Daley, director of the Transgender Law Center.

    The federal appeals courts are currently split over whether Title VII of the Civil Rights Act protects transgender or transsexual employees from discrimination. The 6th U.S. Circuit Court of Appeals took the biggest pro-plaintiff leap by ruling in 2004 that a transgender firefighter—who had notified his boss he would be presenting himself as a woman at work—could sue the city of Salem, Ohio, for "sex stereotyping based on a person's gender nonconforming behavior." But that decision is binding only on courts in Ohio, Michigan, Kentucky and Tennessee. In the U.S. court district that covers Largo, a judge in 1999 dismissed a transsexual's Title VII claim.

    Outside the 6th Circuit, Title VII liability is "questionable, very questionable," says Jillian T. Weiss, a professor of law and society at Ramapo College in New Jersey who consults with companies on transgender issues. "Ultimately, [the issue] will be going to the Supreme Court."

    But as Michael Silverman, executive director of the Transgender Legal Defense & Education Fund, points out, "Title VII is definitely not the end of the story here." Nine states and almost 100 local jurisdictions, from Key West, Florida, to Tacoma, Washington, have passed laws protecting transgender employees in the workplace. A recent amendment to the New Jersey Law Against Discrimination extends its coverage to persons defined as "having or perceived as having a different gender-related identity or expression than the one typically associated with a person's sex or birth."

    Plaintiffs who sue employers under such laws are entitled to seek compensation for lost wages, reinstatement and even punitive damages.

    "Twenty-five to 30 percent of the population is now covered by transgender-inclusive nondiscrimination ordinances," Silverman says.

    Another possible legal avenue for transgender plaintiffs is a disability bias claim. "You can argue that somebody who is undergoing sex-reassignment surgery has been diagnosed with gender identity disorder," Silverman explains. "That puts them within the protection of disability rights law." An administrative tribunal in Florida upheld such a claim in the case of a transsexual corrections officer, rejecting the employer's argument that inmates would not respect a transsexual.

    In Largo, Stanton has expressed reluctance about taking the city to court, saying it would be "like suing my mother." But Weiss believes a suit "could make a very good test case. There's nothing to suggest the city had any reason to fire him other than the disclosure of his gender identity."

    Of course, it may be easier for private employers to hide bias—after all, they don't hold public hearings on personnel matters. But according to Weiss, the Largo controversy is a clear wakeup call for both the public and private sectors.

    "It shows that not only is this a legal issue, but a PR issue," she says. "This isn't publicity you want at all."