Marti Abernathey

You Can Still Fire Me

Filed By Marti Abernathey | August 04, 2007 7:00 AM | comments

Filed in: The Movement, Transgender & Intersex
Tags: Chris Crain, gender

Chris Crain has repeatedly suggested 1, 2, 3, 4 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. See, e.g., Ulane v. Eastern Air Lines, Inc., 742 F.2d 1081 (7th Cir. 1984); EEOC Dec. 75-030, ¶ 6499 (CCH) (1974). 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. See Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004); Mitchell v. Axcan Scandipharm Inc., 2006 WL 456173 (W.D. Pa. Feb. 21, 2006); Tronetti v. TLC Healthnet Lakeshore Hosp., 2003 WL 22757935 (W.D.N.Y. Sept. 26, 2003); cf. Schroer v. Billington, 424 F. Supp. 2d 203 (D.D.C. 2006) (disagreeing with Ulane and holding that discrimination based on sexual identity may be discrimination based on sex). Other courts, however, have adhered to the view that discrimination based on transgendered status does not violate Title VII. See Etsitty v. Utah Transit Auth., 2005 WL 1505610 (D. Utah June 24, 2005); Oiler v. Winn-Dixie La., Inc., 2002 WL 31098541 (E.D. La. Sept. 16, 2002). 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: Sex Discrimination/Coverage of Transgendered

Reading Jen Burke's "Breaking the Binary: Sex, Gender Identity, and Gender Presentation (Volume 1: Employment)" was key in my understanding of the rulings of the United States concerning gender and sex. 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.

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It's a neat trick to cite the EEOC and case law that supports my position and then somehow argue that it doesn't. 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.

Your 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, you have 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.

"case law that supports my position and then somehow argue that it doesn't. The EEOC says exactly what I said: "existing federal civil rights laws have already been interpreted by SOME JUDGES to protect trans workers."
Transgender people that have won their cases have done so under Price Waterhouse's "sex stereotyping," not their transgender status. They weren't covered because they were transgender. You can be fired for your gender identity (what is covered in ENDA) Firing someone because they are transgender isn't actionable in court.

"I have yet to see a single court decision applying Title VII to protect a gay worker from discrimination based on sex-stereotyping."

Come on now, Chris. Just because something hasn't been litigated, doesn't mean it's not actionable. Besides that, you're wrong.

Nichols v. Azteca Restaurant Enters., Inc.
Rene v. MGM Grand Hotel

"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."

The have ruled that name calling isn't enough to show "sex stereotyping." Sex-stereotyping would apply if the John appeared effeminate enough to go against gender stereotypes.

Based on this, your entire premise implodes in on itself.

And yet, isn't that rather like when civil rights passed for African-Americans, if they'd all gotten together and said, "Well, now, there's not been the groundwork laid for Hispanics, so we should just work on passing a law that protects only black people and not any racial minority."? I completely disagree with your premise, Chris, that

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.

Well, actually I agree with part of that statement: It's unfair, irresponsible and immoral to withhold protection for gay workers who need it now - and also unfair, irresponsible and immoral to withhold protection for trans workers who also need it now.

Playing the "my discrimination is worse than your discrimination" game is dangerous, fruitless and irresponsible.

Transgendered people absolutely need to be supported in ENDA, it would help reduce the high unemployment rates that people in the trans community have.

Originally posted to the comments section of Chris Crain's blog:

"Y'know Chris, you keep trying to sell this same argument and it's still just as much of a loser as ever.

Let's take a look at the facts here. For one thing, while progress on gay rights has remained relatively stagnant recently, no less than four states will have new transgender anti-discrimination laws by the end of the year, bringing the total to twelve, almost half the country in terms of population. The groundwork most certainly has been laid and we've got the results to show for it.

In addition, we all know that the chances of ENDA becoming law before a Democrat becomes President is about as likely as you or I being voted into the White House. By ensuring that gender identity and expression protections are included in the bill now, by the time it comes up post-election it won't be all that big of a deal for the Dems to pass it with those protections intact.

We all know that chances are neither the hate crimes bill nor ENDA will get enough votes to withstand Bush's veto anyway.

You're still trying to party like it's 1995. That rest of us have moved on. I'd suggest you do the same."

For those interested, I interviewed Chris Crain on my Internet radio talk show, "The Becky Juro Show" November 30th, 2006, and we covered this issue in detail, along with many others. Quite illuminating. The show can be downloaded in two one-hour parts.

Hour One: http://beckyjuro.podomatic.com/enclosure/2006-12-05T16_02_24-08_00.mp3

Hour Two: http://beckyjuro.podomatic.com/enclosure/2006-12-05T17_10_03-08_00.mp3

Responding to folks in turn:

First to Marci, the cases you cite don't support your position anymore than the EEOC report did. Both involve same-sex sexual harassment, first of all. There's no indication in Nichols that the employee was gay or even felt his sexual orientation was at issue. The only gay-related reference I could find in the entire case was a single citation to use of the insult "faggot" in a long string of examples of harassment, including physical harassment. Hardly enough to prove a gay man could use Title VII to protect against anti-gay discrimination.

Same goes for Rene vs. MGM Grand, a case I was already familiar with, where the court ruled in fact that sexual orientation is irrelevant to a same-sex sexual harassment case. So all you can say about that case is being gay doesn't exclude you from Title VII protection. The point I'm making is that gender identity plays right into the "sex-stereotyping" line of cases under Title VII. Sexual orientation does not, and there's no line of cases to support gays using Title VII to protect against anti-gay bias.

Bil: Your analogy doesn't work, either. Protection based on race covers blacks, Latinos and whites, for that matter, just like protection based on sexual orientation prohibits anti-gay and anti-straight discrimination. Adding gender identity involves tacking on a new category, not applying a category universally. Where's the analogy?

Do you think it would be gay people who "withhold trans protection" now? Of course it wouldn't. It would be conservatives holding up ENDA until gender identity is removed. If Becky Juro and other trans activists are right and Congress is ready to pass both categories, then the whole debate is a non-issue. The issue comes up when gay protection is held back for trans people. Just as it would have been immoral etc to tell blacks and women to wait until society was ready to protect gays, it is immoral etc to say the same now, to gay people.

Under your argument, Bil, no one gets protection until everyone does. So why limit ENDA to sexual orientation and gender identity? No protection should pass for anyone until every conceivable category is included. Otherwise you're drawing lines, just like I am.

I will certainly agree with Becky that it's worth taking the time to listen to our conversation on her radio show. She's right -- it was "quite illuminating."

First to Marci? LOL. I'm not sure if that was supposed to be diss or a typo. You got the spelling right on your site.

"The cases you cite don't support your position anymore than the EEOC report did. Both involve same-sex sexual harassment, first of all."

Oh really?

Nichols v. Azteca Restaurant Enterprises, 256 F.3d 864, 874-75 (9th Cir. 2001) (holding that harassment "based upon the perception that [the plaintiff] is effeminate" is harassment because of sex, in violation of Title VII and the Washington Law Against Discrimination, and overruling DeSantis v. Pacific Tel. & Tel. Co., Inc., 608 F.2d 327 (9th Cir. 1979)) NCLR
"Last year, in Nichols v. Azteca Restaurant Enterprises, Inc., another case involving a gay male employee harassed by male co-workers, the Ninth Circuit held that harassment based on gender stereotyping is prohibited by Title VII." - Ninth Circuit Issues Landmark Decision for Lesbian and Gay Employees
"Hardly enough to prove a gay man could use Title VII to protect against anti-gay discrimination."
I think this is where you are confused, Chris. There are no direct protections against anti-transgender discrimination. In fact, if one does argue that they were discriminated against because they are transgender, they lose. (Ulane v. Eastern Airlines, Inc. is one example, but I can provide more if you like).

"The point I'm making is that gender identity plays right into the "sex-stereotyping" line of cases under Title VII."
There is no direct line to claiming Title VII protections for being transgender. Same sex harrassment IS discrimination under Title VII.

"'A claim of "hostile environment' sexual harassment is a form of sex discrimination that is actionable under Title VII. Pp. 63-69." - Findlaw

"The issue comes up when gay protection is held back for trans people. Just as it would have been immoral etc to tell blacks and women to wait until society was ready to protect gays, it is immoral etc to say the same now, to gay people."

This is a preposterous anology, Chris. African American's never said their struggle was WITH gays. They never tried to garner support by saying that they were "gay inclusive." NEVER. The Human Rights Campaign (HRC) fights for the rights of all GLBT people, not just gays and lesbians. It would be "immoral" and unethical for them to say they supported GLBT rights when they only advocate for G and L rights.
"Under your argument, Bil, no one gets protection until everyone does. So why limit ENDA to sexual orientation and gender identity?"
Why? Go check HRC's mission statement. Oh, and this too...
"Passing ENDA without gender identity and expression is like passing a copyright law that covers books and television shows but doesn’t cover digital music or videos.

But ENDA is about people’s lives, not MP3s or DVDs. That’s why it’s so important that we have the strongest and most comprehensive bill possible.

In early August, HRC’s Board of Directors took the historic step of adopting a policy that HRC would not support a version of ENDA that doesn’t include gender identity or expression.

This isn’t only the right thing to do; it’s the pragmatic thing to do. We’re supporting a modernized and comprehensive bill that gives full protection to all of our community. "

"...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."

You know what? I think we need it pretty damned badly. Acceptance of gays in this country is at an all-time high. And, honestly, the same could probably be said of us trans people. But for so many people, being gay is not something that's going to interfere with getting and keeping a job. For many transgender Americans, it's not something they can hide. It's a little obvious. The prospect of looking for and starting a new job is daunting. For transitioning people on the lower end of the income scale, like myself, the process of changing names is expensive, and in CA at least, changing genders on your birth certificate and SSN, passport, etc, requires some type of surgery. As a transman, the only surgery I'm immediately interested in is "top surgery," and I don't have the $8K out-of-pocket to pay for that. So, all I could do at this point is scrape together the cash for a name change before I get a new job. Then hope that our new post-9/11 Social Security Administration doesn't call my boss to ask why my gender doesn't match up with their records. Good freakin' times.

And if you'd like to make an impact on AIDS transmission in cities, how about you make it so that young MTFs are able to have a better chance of getting a legitimate job rather than having to turn to the "sex trade?"

I understand that your interest is in "the many," and the hell with the few, but take a minute to consider that maybe the "few" transgender people that this could help might need it even more than the many. Of course, nobody even knows how many of us there are, no doubt there are still many thousands terrified to come out for fear of getting dead.


"Do you think it would be gay people who "withhold trans protection" now? Of course it wouldn't."

I'm sorry - I thought that's exactly what you're arguing for!


"Under your argument, Bil, no one gets protection until everyone does. So why limit ENDA to sexual orientation and gender identity? No protection should pass for anyone until every conceivable category is included. Otherwise you're drawing lines, just like I am."

So... then it's "moral" to accept freedom and equality for *some* people, while shrugging helplessly at the people you're leaving by the wayside? Just because things have unfolded as they have in this country does not mean that it's necessarily the way it should have gone down. Do I wish that the black civil rights movement or women's rights had been held back until now, just so that gays could hop on board at the same time? No, I don't. Do I think that a truly all-inclusive ENDA-type bill should have been implemented decades ago, yes, absolutely. Do I think that Americans, by now, should have a simple policy of NON-DISCRIMINATION, period? Hell yes.

Let's push for a bill that allows *no* discrimination on factors that don't matter. If the person discriminating can't point at something in the other person's actions, history, lack of skills or experience, i.e. *relevant things* - then they can't discriminate against them because they have red hair or some other idiotic reason.

We shouldn't have to list out every damned thing that someone could discriminate against. And in that regard, I'd love to see some people have to wait. Hell, I'm being expected to. Why not have the gays and trans wait until protections akin to the bloody ERA go through? Until fat people and ugly people have protections? (Hell, there's more of them than gays and trans combined!) Until fairness is expected for ALL people? The "GLBT community" should be pressing for more acceptance and less discrimination for all people, since so many of us know what that's like.

Courageous citizens need to stand up for equality and fairness, period. How can we fault the politicians for acting like politicians while we start to play their same games, you know? You said it: "No protection should pass for anyone until every conceivable category is included." And I think that's exactly right. Unfortunately, I don't think anybody's brave enough to tackle things head on. Personally, I'm willing to wait a little while to get mine if it can *truly* serve the greater good. Not just queers, but everybody.


"The Human Rights Campaign (HRC) fights for the rights of all GLBT people, not just gays and lesbians. It would be "immoral" and unethical for them to say they supported GLBT rights when they only advocate for G and L rights."

Amen. They're doing the right thing. If they weren't, we should get right on removing the "T" in "GLBT". I think we're supposed to be "on the same side," or something. Why don't we start acting like it?

I firmly believe that the gay lobby has more than enough power these days to get this passed with protections for gender identity and such. I think in this case, it would be rather cowardly not to do so.