Transgender Discrimination And The Law

Abstract

An emerging area of law is developing regarding sex/gender identity discrimination, also referred to as transgender discrimination, as distinguished from discrimination based on sexual orientation.  A transgendered individual is defined as “a person who has a gender-identity disorder which is a persistent discomfort about one’s assigned sex or a sense of belonging to the other sex.’  While Title VII of the Civil Rights Act of 1964 or it amendments do not provide protection from discrimination for individuals based on sexual orientation, transgender, or transvestites, there are a growing number of state, cities, and counties with transgender explicit non-discrimination laws.  In addition to the above private employers, colleges and universities and collective bargaining agreements prohibit discrimination against transgendered people.  While Title VII does not protect transgendered people, some federal courts have broadly interpreted Title VII’s prohibitation against sex discrimination as including transgendered people on the basis  of the concept of “sex stereotyping” as a form of sex discrimination protected by Title VII.  Additionally, the state courts of Massachusetts and New Jersey have held that transsexual people are protected under state disability laws.  Human Resource Managers need to be sensitive to issues that can arise as a result of an employee making a sex change transition with respect to the following: 1) bathroom and dressing room usage; 2) dress codes; 3) identification and records changes; and (4) health benefits.  Additionally, the transgendered employee, supervisory management and coworkers each have responsibilities to see that the transgendered transition is done respecting the rights of all concerned.  As to the future, legal status of transgendered employees, transgender advocates should seek to change the existing laws; and if the existing law has sexual orientation protection, these laws should be written in such a way as to expressly include transgendered individuals.  Additionally, transgender advocates should seek the voluntary cooperation of employers.