Employment Law – Transgender Discrimination
EMPLOYMENT DISCRIMINATION and TRANSGENDER ISSUES
Atypical gender identity is a bona fide sexual identity that is no different from traditional identification with one’s biological gender. Nevertheless, in many respects, transgender individuals are subjected to intense social discrimination including discrimination in the workplace. Federal law prohibits vocational discrimination based on gender, but transgender orientation is not specifically included in the definition of gender or sex in federal statutes or those of many states.
A few states have amended their employment discrimination laws, but other only provide relief predicated on violations such as discrimination by virtue of characterizing transgenderism as political activism triggering statutes prohibiting discrimination against political activism. Other states have provided relief based on existing state statutes prohibiting discrimination by virtue of sexual preference, but that avenue is not available to transgender individuals who are not homosexual. Similarly, transgender individuals in certain jurisdictions must resort to laws prohibiting discrimination based on disabilities, by characterizing transgenderism as a psychological disability. Only very recently have courts begun to recognize that transgenderism is neither an illness nor a valid basis for discrimination, but merely a relatively rare manifestation of otherwise normal human sexual development with roots in the same biological mechanism that, much more often, result in the traditional gender orientation that comports with social expectations of gender, gender identity, and human sexuality. In one potentially pivotal case, the United States Supreme Court has rejected the argument that transgenderism cannot, by law, fit within the existing legal definitions of sex and gender, allowing the plaintiffs to establish liability by presenting arguments that transgenderism is indistinguishable from other aspects of human gender. It is widely anticipated that the outcome of that case will bring greater conformity to contemporary U.S. law by protecting transgender individuals from vocational discrimination to the same degree as other aspects of gender and human sexuality.
During the last several decades of the 20th century, medical science evolved sufficiently to offer surgical intervention in the form of gender reassignment procedures to allow individuals with transgender identity issues to alter their external anatomical structures to comport with their psychological gender orientation. Typically, these procedures are preceded by extensive psychological screening as well as long-term hormone treatment prior to any surgical procedures. Whereas previously, transgender identity was considered to represent manifestations of pathological psychological issues, the modern understanding in the medical and psychological community is that its roots are largely biological rather than psychological or psychosocial abnormality (Gerrig & Zimbardo 2005). However, in much the same way that homosexuals have endured ridicule, abuse, and harassment from coworkers, transgender individuals have also been subjected to negative comments by coworkers and to unjustified disparate treatment by supervisors and administrators. Typical examples include workers with superior work records being demoted and fired after disclosing their transgenderism (ACLU 2006), employment offers rescinded after disclosure (ACLU 2006), and patterns of harassment by coworkers tolerated by management (Koch & Bales 2002). Since the American Civil Rights Era of the 1960s, employment discrimination based on suspect classifications like race, color, religion, sex, or national origin (USEEOC 1997) has been prohibited under Title VII of the Civil Rights Act of 1964 (Title VII). However, the original wording of the Civil Rights Act does not further define the term sex and subsequent proposals to amend Title VII in that regard have been unsuccessful. As a result, federal law does not specifically address any rights of transgender individuals except to the extent their circumstances may fit within alternate legal theories of liability, such as discrimination against physically or mentally disabled transgender individuals under the Americans with Disabilities Act (ADA) or the Age Discrimination in Employment Act (ADEA).
Only nine states have passed comprehensive anti-discrimination laws that specifically protect transgender individuals from discrimination in the workplace: Hawaii, Illinois, Maine, Minnesota, New Jersey, New Mexico, Rhode Island, Washington, and the District of Columbia. In other states, discrimination against transgender individuals in the workplace must involve concurrent legal theories recognized either by state or federal law.
Therefore, in addition to the complete lack of national uniformity with respect to employment law and transgender discrimination, the current situation provides potential (indirect) avenues of relief for some transgender employees while utterly ignoring identical acts of discrimination against other equally aggrieved parties. This constitutes a patently unfair climate that, in principle, ignores the fact that according to contemporary psychological authorities (Gerrig & Zimbardo 2005), transgenderism is a bona fide (albeit very rare) form natural human gender psychology. As such, disparate treatment under the law must be recognized as violative of existing concepts of equal protection under the Fourteenth Amendment of the U.S. Constitution with respect to the federal government and, since 1914, under the Fourteenth Amendment as applied to the states through the Due Process Clause of the Fifth Amendment to the Constitution (Friedman 2005).
1. The Biological Basis of Transgenderism.
Mounting evidence suggests that transgenderism is not the result of psychological maladjustment, traumatic experience, or any other form of abuse (O’Neil, et al. 2008).
Rather, anecdotal evidence (Nuttbrock, et al. 2002) illustrates that transgender identification is often apparent in childhood, toddlerhood, and even in infancy, long before any possible understanding or even awareness of sexuality and gender identification. Empirical studies have been limited by the extreme rarity of available transgender subjects (Koch & Bales 2008), but to the extent they have been conducted, their results corroborate anecdotal observations (O’Neil, et al. 2008).
2. Civil Rights and Employment Law.
Prior to the American Civil Rights Era, discrimination, both in general and in employment, was virtually unregulated with many American businesses routinely published discriminatory policies such as “No Irish Need Apply,” “No Jews Need Apply,” and “Whites Only” (Friedman 2005). In fact, even after enactment of the Civil Rights Act of 1964, many southern states persisted with patently discriminatory policies until eventually redressed by civil suits and government action (Friedman 2005).
Furthermore, several empirical studies have concluded that to the extent transgender individuals suffer from psychological trauma and social maladaption, it is as an effect of the response of others in society to their transgender orientation and not a cause of their transgender orientation. The evidence suggest that where families and society accept the choice of individuals to live as transgenders without criticism, rejection, ridicule, or social persecution, that transgender individuals are fully capable of living fulfilled, psychologically healthy lives and of vocational performance that is unaffected by their transgender orientation (Nuttbrock, et al. 2002).
Title VII, as amended in 1991, specifically prohibits employment discrimination in the form of failure or refusal to “hire or to discharge any individual with respect to his compensation, terms, conditions, privileges of employment because of such individual’s race, color, religion, and national origin.” Except for the inclusion of discrimination based on pregnancy (by Congress) and based on “gender nonconforming behavior” (by the Supreme Court), efforts to further expand the concept of “sex” subject to statutory protections under the Civil Rights Act have been completely unsuccessful (Friedman 2005).
Only nine states have specifically recognized transgenderism as an explicit component of the definition of “sex” with respect to statutes addressing sex-based employment discrimination, and all of them employ different terminology and definitions in that regard (Friedman 2005). As a result, allegations of employment discrimination are adjudicated differently in all 50 states (Koch & Bales 2002), ranging from full protection in some states to no protection at all in others, or presently, under federal law absent some concurrent legal basis for recovery (Koch & Bales 2008). Various federal agencies have included anti-discrimination policies for the benefit of transgender individuals (Wells 2003), but other than voluntary recognition of this nature, many aggrieved transgender employees and job applicants have no viable legal resource for employment discrimination predicated upon their transgender orientation.
In 2005, the American Civil Liberties Union (ACLU) filed a brief against the Library of Congress on behalf of an American veteran whose offer of imminent employment was summarily revoked immediately after her disclosure that she was a transgender individual living as a female. The case is still pending before the Supreme Court, but thus far indications are favorable, given the Court’s rejection of the argument for dismissal put forth by the Library of Congress that transgenderism is not validly covered by federal law prohibiting discrimination on the basis of sex. Recognizing the contemporary position of the psychological and medical communities, the Court determined that human sexual identity is no longer necessarily “a cut-and-dried matter of chromosomes” (Koch & Bales 2008). Main Thesis Discussion:
In principle, the theory underlying the justification for anti-discrimination in employment is that only issues that are legitimately, directly, and functionally relevant to the actual requirements of employment are valid criteria for hiring, benefits, and promotional potential (USEEOC 1997). Generally, disparate treatment in the field of employment against transgender employees is exclusively a function of prejudicial beliefs, attitudes, and traditional perceptions about human gender orientation. In that regard, discrimination against transgender individuals is no different from other unjustified forms of discrimination, such as on the basis of race or religion that are appropriately prohibited under Title VII, the ADA, the ADEA, and under the laws of the states (Koch & Bales 2008). In fact, the argument could easily be made that individuals with transgender tendencies who do not pursue gender reassignment procedures are more prone to chronic depression and to other natural consequences of their repressed feelings about their true identities that could potentially affect their ability to fulfill their vocational obligations optimally (O’Neil, et al. 2008). Conversely, the evidence strongly supports the conclusion that transgender individuals who undergo the sex reassignment transition are fully capable of leading happy fulfilled lives and of performing at work without any detrimental effects directly attributable to their transgenderism (Nuttbrock, et al. 2008).
To the extent transgenderism is associated with psychological trauma and negative consequences that affect an employee’s ability to perform at work, it is largely attributable to the negative attitudes, harassment, social exclusion, ridicule they often encounter from coworkers. Naturally, the same is true, perhaps even more so, to the extent transgenders’ families reject them or subject them to feelings of shame and rejection (Nuttbrock, et al. 2002).
As a human resource issue, transgenderism need not be an issue that detracts from the fundamental worth of any employee. With very few exceptions, most vocational positions are equally suitable to males and females (ACLU 2006). Obviously, to the extent that either a male or a female is capable of performing satisfactorily in any particular vocational capacity, gender reassignment is completely irrelevant. On the other hand, because transgenderism so often triggers prejudicial even abusive interactions among coworkers, failure to provide appropriate leadership or to implement policies prohibiting such conduct may indeed result in disruption to the workplace environment.
Recommendations and Conclusion:
On the matter of legislation, the Supreme Court appears poised finally to redress the existing inadequacies of employment law that defines “sex” very narrowly with respect to discrimination issues. By rejecting the traditional view that gender identity is strictly a biological matter dictated by chromosomes, the Court has demonstrated at least a willingness to consider the arguments in favor of incorporating transgenderism within the larger framework of human gender and sexual identity.
Apart from the outcome of legal decisions, human resource managers would benefit their organizations by adopting the morally right approach demonstrated by various federal agencies and the nine states that have established anti-discrimination policies completely voluntarily with regard to transgender employees. This type of humanistic moral approach to employment issues has a long historical precedent in this country, going back as far as the underground railroad and the abolitionists who risked their lives prior to the American Civil War to undermine the unjust institution of slavery.
In more recent times, northern civil rights workers lost their lives in the pursuit of justice in southern states like Mississippi.
Contemporary American business is now faced with a similar dilemma capable of being redressed by just policies established voluntarily by human resource managers and business administrators even before anti-discrimination by virtue of transgenderism is included within the protections recognized by formal laws and acts of Congress.
Ultimately, this is more a matter of human morality and ethical values than a matter of formal legislation and government policy.
American Civil Liberties Union (2006) Federal Court Rules Transgender Discrimination Lawsuit Against Library of Congress Can Proceed. Retrieved July 3, 2008, at http://www.aclu.org/lgbt/transgender/24851prs20060331.html
Friedman, L. (2005) a History of American Law 3rd ed. New York: Simon & Schuster.
Gerrig, R, Zimbardo, P. (2005) Psychology and Life. 17th Edition.
New York: Allyn & Bacon.
Koch, K., Bales, R. (2008) “Transgender Employment Discrimination.”
UCLA Women’s Law Journal, Vol. 17, No. 2, Nuttbrock, L., Rosenblum, a., Blumenstein, R. (2002) Transgender Identity Affirmation and Mental Health National Development and Research Institutes (NDRI). Retrieved July 1, 2008 from:
O’Neil. M., McWhirter, E., Cerezo, a. (2008) Transgender Identities
And Gender Variance in Vocational Psychology: Recommendations for Practice, Social Advocacy, and Research; Journal of Career Development, Vol. 34, No. 3, 286-308. U.S. Equal Employment Opportunity Commission: Title VII of the Civil Rights Act of 1964. Retrieved, July 2, 2008, at http://www.eeoc.gov/policy/vii.html
Wells, R. (2003) Social Security Administration Policy Prohibiting Discrimination Against Employees and Applicants for Employment. Retrieved July 1, 2008, at http://www.eeoc.gov/federal/harass/ssa.html
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