August 04, 2007
A trans activist tees off on ENDA
Posted by: Chris
It's a neat trick to cite the EEOC and case law that supports my position and then somehow argue that it doesn't, but Indy-based trans activist Marti Abernathy pulled it off in a post on the Bilerico Project.
Chris Crain has repeatedly suggested that transgender people don't need to be included in the Employee Non-Discrimination Act because "existing federal civil rights laws have already been interpreted by some judges to protect trans workers. A recent Equal Employment Opportunity Commission (EEOC) informal discussion letter would suggest otherwise:
Historically, courts and the EEOC have held that Title VII does not prohibit discrimination against an individual because of transgendered status. In the past few years, however, some courts have determined that discrimination against a transgendered individual may constitute unlawful gender stereotyping in violation of Title VII’s prohibition against sex discrimination.
Whether discrimination against a transgendered individual may constitute discrimination based on sex in violation of Title VII is a factual question that cannot be determined outside the context of specific charges of discrimination and a complete investigation.
Title VII only covers transgender people if their employer "sex stereotyped" them. Sex stereotyping is a form of harassment directed at a person because that person does not conform to "traditional sex stereotypes." Sex stereotyping is just as illegal against a gay people as it is against transgender or heterosexual persons. Regardless of what you're told, it's still legal to fire someone for being transgender.
The EEOC says exactly what I said: "existing federal civil rights laws have already been interpreted by SOME JUDGES to protect trans workers."
Is it every judge? No. Would adding "gender identity" to ENDA ensure protection? Absolutely. But my point was that, under current case law, at least SOME judges interpret Title VII to protect transgender people.
Abernathy's assertion that "sex stereotyping is just as illegal against a gay people as it is against transgender or heterosexual persons" is misleading. I have yet to see a single court decision applying Title VII to protect a gay worker from discrimination based on sex-stereotyping.
In fact, employers routinely argue that because the worker is gay (or the discrimination was anti-gay), then Title VII does not apply. So even though gay worker John got called a "faggot" more because he is effeminate than because he has a boyfriend, the courts rule he has no rights because Title VII doesn't protect gays.
So rather than make the case for trans-inclusion in ENDA, Abernathy has reinforced why immediate action is needed more by gays than trans people. Comparing that need would be irrelevant, of course, if politics weren't an issue. But with the political groundwork not yet laid for trans protections, it is unfair, irresponsible and immoral to withhold protection for gay workers who need it now, for that happy day when we can also protect those "some" transgender workers who need it as well.
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