[EDITOR'S NOTE:] This guest editorial comes to us from Vivian Benge, President of the Indiana Transgender Advocacy Alliance. Vivian is a long-time transgender activist and a personal friend of several of our contributors.
Last week, the National Center for Transgender Equality (NCTE) reported that the Department of Homeland Security (DHS) is abandoning its "No Match" enforcement procedures policy which is outing transgender people in the workplace. This has caused thousands of transgender people to lose their jobs and suffer great emotional turmoil and economic distress on top of the rampant employment discrimination we already face.
DHS policy seems more like religious based bigotry, fear and ignorance wrapped in the legitimacy of government regulation while advancing our nation toward a national ID card. As a transgender woman, it is so very sad to be an American and have to endure this. While our gay/lesbian brothers and sisters face the “don’t ask don’t tell” burden, transgender people have been ‘officially’ targeted in their workplaces by our conservative government’s “kinder and gentler” bigotry.
This DHS policy had been challenged in the courts by labor, immigration, transgender, civil liberties and other groups on the grounds that it would have required employers to either fire employees or face stiff penalties when employee records do not match information in the Social Security Administration (SSA) database, especially name, Social Security number, or gender. Many transgender employees, who are listed as one gender in SSA records, but who live and work in another gender after state court ordered name and gender status changes, would have been one of the groups at greater risk of losing their jobs as a result of the DHS enforcement procedures.
All this is particularly egregious because most transgender people don’t have the money to have surgeries that are required by SSA in order to change gender markers. Meanwhile, the Catholic Church and its fundamentalist Protestant allies assure us we will go to Hell if we have surgeries at all. It’s one of the many “damned if we do and damned if we don’t” catch 22s that trans people face every day.
According to NCTE, on October 10th, the enforcement procedures were dealt a severe blow when the presiding judge issued a preliminary injunction blocking the rules, finding that the rules would cause irreparable harm to both innocent workers and employers. DHS signaled its abandonment of the present incarnation of these rules on November 25th by requesting that a judge put the lawsuit on hold until March 2008. DHS plans to introduce new, replacement enforcement procedures, which DHS believes will have a better chance of standing up to legal scrutiny, in December 2007.
Though the DHS enforcement procedures have been pulled, SSA will continue to compare their database against employer-submitted information, as it has for years before the issuance of the DHS rules. SSA has stricter standards for changing gender markers than departments of motor vehicles, which has led to employers of some transgender workers receiving notification of gender ‘no-matches.’ For many of those transgender workers this notification has effectively revealed them as transgender in their workplace, without their consent, thus leading to firings.
I was actually caught in the Social Security Administration (SSA) enforcement of their policy while I was still working, and even after I semi retired. On three separate occasions my employer demanded that I work out the ‘problem’ with SSA and SSA threatened that I would not be able to receive the social security I worked all my life to earn if my employer didn’t change it back. My employer, the State of Indiana, finally decided to ignore my Indiana court order and change my gender status back to what SSA wanted in their records because SSA was threatening them.
What a waste of my money to legally change my name and gender so I could get on with my life. That was before my surgery, but now that I have done that, I would rather not give SSA the satisfaction.
I was lucky for reasons of my own ‘coming out’ strategy, so didn’t lose my job, my retirement or, later, my inheritance when my spouse died, though I was threatened over each. With support of my Union and colleagues, as well as the Indiana Civil Liberties Union, Lambda Legal and others, I dodged those bullets though it has not been without personal cost.
The Indiana Transgender Advocacy Alliance (INTRAA) has also received many complaints from transgender employees about the consequences of DHS/SSA’s destructive policy. I have personally worked with several employees in Indiana to ameliorate the impact of Indiana’s lack of concern for its transgender citizens while they do their knee jerk enforcement of DHS policy. Interestingly, many states have opposed and even refused to implement many of the DHS requirements that are moving the states toward a quagmire of new regulations and a national ID card.
One recent example I had the privilege to help impact was that of a technology professional at an Indiana company. The company had no idea she was transgender and was very happy with her performance, until Social Security informed them that her SSA gender marker didn’t match the person’s legal name and social security number.
A gender marker SSA refuses to change, by the way, despite the fact that if DHS ever had a reason to look for her in her birth configuration, they would never find her. Despite her legal name and gender marker changes through the court, SSA has refused to change their records because of their outmoded thinking that ‘biology is destiny.’
She was saved, interestingly, by the fact that her employer’s parent company was based in Chicago where Illinois law forbids discrimination based on gender identity and expression. Her local HR people were told, “What is the issue here? She is a good employee so just ignore the SSA issue as an employee retention factor.” She ended up keeping her job, which she was well on her way to losing because her local branch of the company presumed they should do as DHS advised and fire her since it had became an intractable problem with SSA and DHS.
Interestingly, since a local HRO had been defeated by Catholics and fundamentalist Protestants bent on keeping LGBT people vulnerable to job loss, the local supervisors believed they were safe in firing the person (who they had no idea was transgender until DHS/SSA outed her).
Ironically, Illinois law saved the job of this Indiana employee (one less brain drained from Indiana) and helped her Indiana supervisors come to grips with their own fears about gender expression and identity. The local office personnel for the company were actually apologetic after the fact and admitted that the corporate policy of the Illinois parent company helped them to see their fear.
It reminds me of the impact of other civil rights laws in the US that gave impetus to many people coming to their senses about discrimination and its impact on millions of people who were victims of irrational fears and prejudice. This case is a microcosm of how Indiana’s state and federal leaders could help business competitiveness by passing civil rights protections for LGBT people.
My personal favorite irony of the DHS policy, supposedly imposed to meet the needs of national security under the “Patriot Act,” is that it strives to force government and employers to require a gender marker on documents that is opposite to that which law enforcement would need to be looking for in order to apprehend all the transgender desperados out there – you hear about us all the time in the press, robbing banks, killing and raping our way through life, following the lead of heterosexual males. Laughable, if it weren’t so sad.
Fortunately, this travesty may change in the future because it is so unfair to the business needs to find and keep good employees. Isn't it interesting how greed can motivate change when love and acceptance of diversity can’t? It seems that God works in mysterious ways to help people learn.