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Why Gender Identity Protections Matter to All of Us
The recent passage of ENDA in the
U.S. House of Representatives is a victory over thirty years in the
making. For the first time in history, a chamber of Congress approved a
law to protect Americans from losing their jobs simply because of their
sexual orientation. But this victory came at a price; protections for
gender identity/expression were dropped for political expediency, in spite
of all the work that transgender, gay, and allied leaders put into
building support for the bill. And if this bill were to become law (which
is unlikely at the moment), it could leave out many of those whom our
representatives thought they were protecting.
The decision to excise gender
identity/expression was debated hotly in the GLBT press and among
advocates. Many were committed to a fully inclusive bill and nothing less,
while others wondered why gay people should sit and wait for transgender
rights to catch up. The answer to that is that the issues of gender
identity discrimination go beyond transgender people.
The ACLU and Lambda Legal analyzed
the new bill and found that it could effectively leave out anyone who did
not meet an employer’s idea of sex-appropriate behavior. It’s easy to
see how transgender people are left out by this, but the exclusion of
others is more subtle. Just as gender is not always clear-cut, neither is
social perception of gender conformity. There are employers who might
consider pantsuits on women quite tasteful, and others who see them as
inappropriately masculine. The male applicant in the pink dress shirt
could just as easily be well-dressed as subversive.
The author of a recent Letters
article said that “the hardest part about accepting our sexual
orientation can be shedding the misconception that being gay makes us less
of a man or a woman.” He hit the nail on the head in identifying it as a
misconception. But what makes it hard to shed is that it’s a pervasive
idea, which is why terms like “diesel” and “fairy,” reflecting
gender, not sexual, practices, are used to slur gay people. It’s logical
to conclude that some employers might have that idea ingrained in them,
even if subconsciously. The author of that article also pointed to the
protections for gender-nonconforming gays and lesbians that he saw in
ENDA’s inclusion of “actual or perceived” sexual orientation and in
Title VII of the 1964 Civil Rights Act, which bars sex discrimination in
employment. But those are not as secure as they may look.
The inclusion of the term “actual
or perceived” protects those who seem to meet stereotypes of a sexual
orientation and who are subject to discrimination based on those. A court
taking a narrow look at a complaint could reasonably limit their inquiry
to whether the employer’s actions were specifically based on the
plaintiff’s sexual orientation as evidenced by the gender(s) of those
the employee was believed to date, sleep with, or partner with, rather
than being based on assumptions due to those stereotypes. But an employer
who truly doesn’t care who you date may care very much about how you
dress, and is perfectly entitled to impose sex-specific dress codes on
their employees so long as men and women are equally burdened. The impact
of this is clear from the case of Darlene Jespersen, who in 2000 was fired
from Harrah’s, where she had worked for more than 20 years with
excellent reviews, for not wearing the full makeup a new policy required
women to wear. Harrah’s right to terminate her for that reason has been
held up in federal court because the court did not find it to be an
unequal burden compared to the dress code’s requirements for men. Plenty
of women do not wear makeup, and how many people would think they were
“gender transgressors”? Probably not many, but it’s not outside
opinion that’s relevant when the employer is setting the standards.
Again, the effects of this go beyond transgender people.
None of this is to say that the
House passage of ENDA was not a victory for employment rights; it’s just
not a final one. The sponsors of ENDA were right in their belief that
inclusion of gender identity/expression would have caused the bill to
fail, and it’s important to win what we can to show and build our
strength for future battles. We’ve found that here in Delaware too,
where a representative once tried to attach an amendment guaranteeing
employers’ rights to impose sex-specific dress codes to our sexual
orientation-only nondiscrimination bill (the amendment failed, thanks in
no small part to the immediate response by a number of female lawmakers).
In order to reach a final victory, we need to educate our communities and
policymakers about gender identity issues, whether they’re the obvious
ones often faced by our transgender friends and family or the subtler ones
around ideas and perceptions of gender that are still deeply rooted. And
that education should start now.
Kim Siegel is with the ACLU-DE GLBT
Rights Project. She can be reached by e-mail at kim_siegel30@yahoo.com.
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