Guest Blogger

ENDA and gender identity protections

Filed By Guest Blogger | September 04, 2009 12:30 PM | comments

Filed in: Politics, Politics
Tags: Brian Prowel, court cases, effeminate gay man, Employment non-discrimination, ENDA, gender identity, Wise Business Forms

Editors' Note: Guest blogger Tobias Barrington Wolff is Professor of Law at the University of Pennsylvania, the Jesse Climenko Visiting Professor of Law at Harvard, a civil rights lawyer, and the former LGBT policy advisor to presidential candidate Barack Obama.

Wolff_Tobias.JPGThe re-introduction of ENDA promises to bring with it a renewed discussion about the importance of federal statutory protections for gender identity and expression. In the past, much of that discussion has focused on our trans brothers and sisters. And indeed anti-trans discrimination ought to be enough by itself -- more than enough -- to justify including gender identity and expression within ENDA.

But there is a danger of drawing artificial divisions within our community when we assume that protection against discrimination based upon gender identity or expression is exclusively about trans people. That has never been the case. Those protections are designed to safeguard all of us against being punished because we somehow fail to conform to another persons's expectations about gender.

In the hope of arming people with information to help them make that important case, I'd like to point out a decision that was handed down by the U.S. Court of Appeals for the Third Circuit [PDF] the other week, Prowel v. Wise Business Forms, concerning the harassment and discrimination suffered by a man named Brian Prowel. Prowel was fired from the factory where he had worked for 13 years. He is, as he describes himself, an effeminate gay man. Throughout much of his time at the factory, he was subjected to horrible mistreatment.

As so often happens, the mistreatment focused both on the fact that Prowel is gay and on the way in which he presents and expresses his gender.  As Prowel explains in his own words, he took more care with how he dressed than his male co-workers, drank gin and tonics instead of beer, and generally did not conform to the expectations of his co- workers about how a "man" acts.  

The abuse and harassment based on his sexual orientation was bound up closely with the abuse and harassment because of his gender expression -- they called him "princess" and "rosebud" at the same time that they called him "faggot."

Under current federal law, employees have protection against discrimination based upon sex or gender.  There is a Supreme Court precedent making it clear that gender discrimination includes discrimination based on a failure to conform to gender stereotypes. Nonetheless, lower federal courts have been inconsistent in their willingness to recognize that principle.  

In one notorious case, for example, a woman was fired from a casino job because of her refusal to wear make-up and was then denied relief for discrimination based upon gender stereotypes, despite the fact that men in the casino with her same job were not required to apply foundation and rouge every morning.  

Federal courts have been even more inconsistent in their willingness to recognize that anti-trans discrimination constitutes a form of gender discrimination, with some courts rejecting the claim altogether and others creating convoluted rules for when anti-trans discrimination counts as gender discrimination.  Thus, people who are transgender or gender non-conforming have received inadequate protection from current federal law, if any.

In this respect, the Third Circuit's decision in Prowel v. Wise Business Forms is a good ruling.  The court recognizes that if Prowel was harassed and fired because he does not "act like a man" in the eyes of his co-workers, then he is entitled to relief.  But the court also holds -- as it must, under controlling precedent -- that Prowel cannot recover for discrimination based on the fact that he is gay.

Thus, when Prowel goes before the jury, he will need to shoulder the considerable burden of proving that at least some of the abuse he suffered was because of his gender expression and not because he was gay.  (Think about the times that you have experienced or witnessed this kind of harassment and abuse and ask yourself how you would go about making that case.)  

If the company can convince a jury that, no no, we tormented and fired this man because he's gay, not because he's a "princess" and a "rosebud," then they will escape liability. This absurd double-bind that Brian Prowel faces should make crystal clear the importance -- for all of us -- of including protection for gender identity and expression within ENDA.  

Suppose that Congress were to enact a non-inclusive ENDA, one that covers only sexual orientation.  Then the bind that Brian Prowel faces would simply be reversed. Employers and co-workers would say, "No no, we tormented and fired this man because he's a 'princess' and a 'rosebud' -- because of his gender expression -- not because he's gay."  Sometimes that ploy will work, and a victim of antigay discrimination will lose altogether.  

Indeed, this ploy will give hostile juries an additional excuse to deny recovery, if that's what they want to do.  And even where the ploy does not work, it will make it more difficult and expensive for many plaintiffs to recover, because they will often have to go in front of a jury and attempt to prove that their employers were motivated by antigay bias and not by a hatred of their mannerisms or other modes of gender expression.

(As an important side note, this opinion by the Third Circuit also contains an unfortunate ruling on a claim of religious discrimination -- namely, that it doesn't constitute discrimination based on religion if your employer fires you because of his religious beliefs -- in this case, about homosexuality -- but only if your employer fires you because of your religious beliefs.  It is a very bad ruling in an otherwise good opinion.)

As we work toward the enactment of a fully inclusive ENDA -- a goal that I believe we can accomplish with this Congress -- let's all prepare ourselves to educate the media, the politicians and the public about the importance of these protections.  Again, protecting against anti-trans discrimination ought to be reason enough -- more than enough -- to enact a fully inclusive ENDA.  But these protections are not just for our trans brothers and sisters.  

They are for all of us.


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I love the way you bring all of this together Tobias. I don't think we did a good enough job of articulating this to our own community last year.

Brynn Craffey Brynn Craffey | September 4, 2009 11:19 PM

Great post, Tobias! Like Bil said, you really draw the threads together. Thanks!

I am impressed with this article, Tobias, as I have been with the other things you have done. I am glad that someone who is not trans is pointing out what a tedious position many gay, lesbian, bisexual and straight people are in if they don't followed the ridged gender norms. Thank you.

Thanks for a very helpful analysis as the Congressional conference committee starts working out the final details of ENDA. Also enjoyed your recent blog about Rev. Joseph Lowery's contributions to the civil rights struggle. I hope your wise words reached the right ears in the White House.

Well done, Tobias. I think your point about ENDA is especially important. I published my own analysis of Prowel at my blog, and I wouldn't mind hearing your comments on that. You can find it by clicking here.

I have a question: Would ENDA protect trans/gay people from the religious discrimination decision the court made?

That is, would ENDA block people from using religious-driven prejudice against trans/gay people as an acceptable defense in court?

If breaking down artificial divisions is what "we" need (and we do) then it MUST be stated that this legislation and others like it that speak to "perceived gender" do NOT just protect "our" community but every human being who is perceived by others as being gender variant, regardless of whether they are or not.

Those who oppose this legislation *love* to bleat about how it turns trans people into a "special class" when in reality it does nothing of the sort and protects everyone, trans or not...by speaking in terms of "our community" as being separate from the mainstream, LGBT activists help bolster this erroneous idea of "special classes" and "special rights" enjoyed by some and not others.

This opposition can be easily countered by pointing out cases where non LGBT people have been harassed and/or brutalized simply because they "looked/acted gay" or "like a tranny" or were otherwise not in strict adherence to hetero- and binary-normative standards...the current row over Cater Semenya being a good example- while the standards to qualify in sports competition are not exactly the same as those surrounding employment, it is pretty easy to see that someone like her could experience all kinds of job harassment and discrimination based on a naturally ambiguous gender presentation.

When presented with cases like hers and others like Khadijah Farmer and Tanya White, both natal women thrown out of women's bathrooms for not looking feminine enough to be "real" women (even after attempting to show corresponding legal ID which was ignored), most thinking people can see that these situations don't just happen to LGBT individuals and when pressed will admit that it is wrong to allow people to be harassed and discriminated against based on nothing more than someone else's perceptions about their gender, whether it is in a bathroom, on the job or anywhere else.

No real and lasting progress towards full equality will occur on this front until it is made clear that this is NOT an LGBT rights issue, but a *human* rights issue that simply does not affect only LGBT people...treating "our community" as being something separate from the human race only helps support those who would claim that "we" seek "special rights" for something "we chose", and is itself an artificial division.

Tina,
Good comment. If people start throwing "choice" at you, remind them that "religion" is a protected class, AND a choice. They have "special rights" as far as I'm concern.

Also, veterans are a protected class. With the exception of those who were drafted, being a veteran is a choice as well.

Thank you Tobias, you hit the nail on the head. Regardless of whether a person may think the "T" should be in LGBT, you illustrated why it is in everyone's best interest to come together politically with the inclusion of gender identity and expression in ENDA.

I also agree with Tina that this is a human rights issue, but I will leave the bickering and hair-splitting to the people that suffered through law school (which I did not) for the proper way of bringing this to justice. ENDA seems like a step in the right direction.

Hi Monica,

you are absolutely correct that plenty of people enjoy "special rights" for "chosen behaviors" without it being an issue.

What I also like to point out to people re: "chosen behaviors" and civil rights is that practically every single activity protected by the Bill of Rights- free exercise of religion, speaking/publishing, petitioning for redress of grievance, peaceful assembly, keeping and bearing arms, refusing to testify against ones self, confronting one's accusers in court...are ALL behaviors that one can choose to engage in or not.

The idea that only "immutable characteristics" are a valid basis for civil rights protections is patently absurd, and pointing to the Bill of Rights is a great way to show that the religionist moral authoritarians who make this claim- many of whom are lawyers- are either ignorant or are bearing false witness.

One thing I would disagree with- and I freely admit it is hair splitting, but the nature of law is that it is all about splitting hairs- is when you say that "religion" is a protected class"...

the term "class" in a legal context denotes an exclusive group..."veterans" is a perfect example; you either are one, or you aren't as defined. Others would be "immigrants", "minors", "sworn peace officers", etc.

In that sense, "religion" is not a class, but a characteristic, same with "skin color", "national origin", "sex", "sexual orientation" and "gender identity"...everybody has one, and more importantly it doesn't matter what it might be, civil rights law prohibits using any of them (except the last two, of course) as a legitimate basis for discrimination.

It is a critically important distinction because to attempt to define every possible religion, skin color, national origin to be protected as "classes" would be not just be unwieldy, it would leave some people unprotected since the law must be interpreted as written and inferring something that isn't specified is antithetical to the rule of law...you just can't possibly list every single permutation of those characteristics.

Thank God the framers and other legislators were (mostly) smart enough to write the law and judges (mostly) have interpreted it in such a way that *all* religions, skin colors, etc. are protected (subject to judicial interpretation, of course).

Proposed legislation that attempts to protect people from discrimination on the basis of sexual orientation and gender ID follows this format- no special classes are defined; instead the law simply defines what *characteristics* are not a legitimate basis for discrimination.

Again, it may seem like splitting hairs, but it is imperative that we discredit this notion that ENDA and similar legislation creates a "protected class" that is defined by being gay or transsexual, and especially that non-members these classes would not be covered or benefit from the law.

Can either "gay" or "transsexual" be said to be a "class"? Absolutely, although the definitions are pretty vague at times..."Christian" is a similarly vague term that regardless defines a class- you either are one or you aren't as defined.


But just because a particular class is protected by a particular law does not automatically mean that that group is "a protected class"..."Christians" may be covered by the 1st amendment's protections for the free exercise of religion, but to claim that the 1st amendment "makes Christians a protected class" in an attempt to stir up anti-Christian sentiment is disingenuous for the simple reason that the word "Christian" is never used.

You are right, Tina. "Characteristics" is a better and more accurate word. Thank you.

Great article, but I'm confused on one part: are gin and tonics girly drinks now? I thought it was a long drink, and therefore gender neutral. I don't know how many straight hetero bros I served gin and tonics to when I tended bar....

Hi Tobias,
Thanks for the GREAT article.
At a local level here in Kalamazoo, MI one of the most challenging issues confronting me when I became involved with getting a City Non-Discrimination Ordinance passed was the ubiquitous "bathroom" exemption. It wasn't just Trans outrage that was at issue here. For me it was a more compelling argument (and I'm Trans)that the exemption opened the door for discrimination against anyone who didn't conform to someone else's perception of acceptable gender presentation.

Richard Loghry | September 8, 2009 10:41 PM

Hi Tobias,
I have read numerous religious sources express extreme concern that this law would require christians to hire employees participating in activities they do not believe in. Obviously that is an intensely in-deapth subject. However, as best as you can, could you explain where the line is drawn in the sand under the current wording of ENDA? I have heard some sources alude to an exclusion based on religion, but no specifics were stated. Would religious institutions be exempt from this law or any employer claiming a religious purpose statement or simply anyone claiming a personal religious disagreement with the applicant?