Dr. Jillian T. Weiss

Arguments Against ENDA - Are We Ready? (Part III)

Filed By Dr. Jillian T. Weiss | September 20, 2009 5:30 PM | comments

Filed in: Politics, Politics
Tags: business necessity, employment discrimination, Employment Non-Discrimination Act, gender identity, transphobia

One of the major underlying and often-unstated arguments against ENDA, in addition to concerns about pedophilia, fear of loss of religious freedom a sudden flood of litigation and concerns about gay quotas, is transphobia - an irrational fear of transgender people.

In simple terms, this is the "yuck" factor. This prejudice is not rational, and there is no reasoning with it. It is as simple as "I don't like you and there's nothing you can do to change that."

Transphobia often gets inserted into the debate in ways that puts a mask on it and erases its tracks. The debaters disguise the prejudice, but rely upon prejudice nonetheless. They may themselves be quite well-meaning, and fail to realize that they themselves are prejudiced. 1.jpg

The transphobia in such arguments gets cleverly disguised by avoiding any reference to personal intolerance. It is instead exchanged for an impersonal "cultural non-acceptance" argument, which looks and sounds less ugly. But it is no less ugly. Such arguments assume there is a universal reaction against the inclusion of trans people in the workforce.

By attributing the prejudice to others, by asserting that trans employees will not be accepted by co-workers, vendors, clients, or customers, causing business disruption and inefficiency, ENDA opponents raise the same objection used against people of color and women in the workforce. "It's not me, the customers won't like it." "I can't have this person working for me, I'll go out of business." The same argument can be used against gays and lesbians, but no one quite believes that one anymore.

The formal term for the transphobic argument is the "business necessity" objection. It argues that the inclusion of job protections based on gender identity will reduce sales. Its premise is that clients and customers will stop giving business to a company that uses an openly transgender person, justifying discrimination based on gender identity. The same type of argument can be and has been extended to sexual orientation, race, national origin, sex and religion. However, it seems to have a particular resonance regarding gender identity. It is particularly effective among those who do not like to think themselves prejudiced but know somehow that there is a problem with transgender inclusion, which they can't quite put their finger on.

This "business necessity" objection, however stated, and to whomever attributed, is a pretext for transphobic prejudice. Far from providing a convincing argument against ENDA, it is a significant demonstration of the need for a law: many employers cannot be counted upon to do the right thing by themselves. It also demonstrates a lack of knowledge about how gender operates in the workplace as an axis of discrimination.

What is "Gender Identity" in ENDA?

In terms of the specifics of ENDA, it is important to note that the inclusion of "gender identity" protects more than transgender people. It also covers anyone who is dismissed or harassed because of gender, the social, psychological and behavioral aspects of sex differentiation. The term "gender identity" is defined in Section 3(6) of ENDA: "The term `gender identity' means the gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual's designated sex at birth." This definition is similar to definitions found in 13 state laws and over 100 local ordinances since 1975.

One aspect of this, "gender identity," refers to our internal awareness of our gender. In other words, I identify as a female, and this self-identification may or may not relate to my sex designated at birth. "Gender-related appearance or mannerisms" refers to our outward expressions of gender - clothing, body styling or behavior. A person who is harassed or fired from a job because the boss or co-workers don't like the way they express their gender is protected by ENDA, whether transgender or cisgender.

This would include a man who is harassed or fired because every man on the job -- but him -- acts like a "regular" guy. It would also include a man who is harrased or fired because his masculinity is that of a macho man, but he's working in an environment where the boss doesn't like how he enacts his gender. A woman who is not into makeup and teased hair, and who is harassed or fired as a result, would be protected, as would a woman who is harassed or fired because she likes makeup and teased hair and finds herself harassed or fired because of that.

ENDA is designed to remove judgments about our gender from the job qualifications.

In one sense, this is not new law. The US courts, including the US Supreme Court, have recognized for quite a while now that "sex discrimination," illegal since 1964, includes gender discrimination -- adverse treatment because of stereotypes about sex. This law has been extended to transgender people by many lower federal courts. Many state and local laws act in a similar fashion. ENDA recognizes and consolidates this existing gender-based protection for all, whether transgender or cisgender.

The Prejudice Factor

Thumbnail image for It's not that I don't like you, it's those other cats... "It's not that I don't like you, it's those other cats..."

The formal pretexts that are often asserted against transgender employees include the idea that their acceptance in the workforce will result in a loss of sales or, in organizations not focused on sales, a reduction in efficiency. This loss of sales or efficiency allegedly stems from the fact that they will not be tolerated by co-workers, clients, customers, vendors, and others in the workplace environment. In other words, it's not me that's prejudiced, but my assumption is that many others are. How could they not be? I mean, look at these people, for Pete's sake. Etc., etc.

In my experience, as a consultant to many business organizations with transitioning employees, large and small, I have never seen or heard of a situation where a business actually lost sales due to a transgender employee. These concerns get worked out in collaboration with management. There are ways of addressing all sorts of workplaces with long-term clients, with short-term customers, and in guest-service environments. I've known of situations where millions - hundreds of millions - of dollars rested on retaining the goodwill of clients during a high-ranking employee's transition. Every client in that situation was retained. I've known of small businesses where business viability hung in the balance, because the transgender employee was as key to the business as the goodwill of the customers. It worked and the business continues to succeed.

I also, unfortunately, know of other situations where employers didn't wait to see how things would go, and the trans employee was fired. In many cases, trans people find it impossible to get a job, despite years of experience and making hundreds of job applications. The statistics are appalling.

If you spend some time thinking about it, you can probably come up with some ways to address the issues yourself from the employer's point of view, even if you're not an expert in transgender workplace issues. If you want to keep good will, then you must act with good will, and that is what's missing in the transphobic argument of "business necessity."

The "business necessity" argument also appears to assume that ENDA will void the need for transgender employees to perform up to standard at achieving their work goals. This is not in the least true. If a transgender employee has poor work performance, ENDA will not protect them. ENDA is only designed to ensure that their gender is not a factor in management decisions, and that they are free from harassment. I have known situations in which transgender employees have lost their jobs based on work performance issues, in jurisdictions with ENDA type laws. They were not given a free pass by any means, and none is argued for here.

What Happens When You Assume?


The underlying assumption here is that others will be prejudiced, and that's a good reason to deny transgender people jobs. It is not a good reason.

If there's any area that's particularly sensitive to the siren lure of the transphobic argument, it is the military. Transgender people are not allowed to serve openly in the military. It is easy to see how a business that works with the military, like a defense contractor, could argue that the assumed transphobia of the military means they will lose sales if forced to hire a transgender employee. If the "business necessity" objection is going to be valid anywhere, it's going to be with the military.

And yet, a federal court recently blew this objection out of the water in a case under the current federal anti-discrimination law. A transgender employee argued that the rescission of her job offer, because her employer learned she was in gender transition, was covered as sex discrimination. The Court agreed. She also argued that the "business necessity" objections to her hiring, based on the assumed intolerance of the military, were a pretext for discrimination. The Court agreed.

In Schroer v. Billington, the United States Federal District Court for the District of Columbia addressed a situation where Schroer, a highly decorated veteran with excellent qualifications received a job offer at the Library of Congress as a counter-terrorism expert. When they found out she was transitioning from male to female, they rescinded the offer.

During the trial, the Library's hiring manager thought that Schroer's gender transition might diminish her credibility with Members of Congress, whom she would be called upon to serve, and that she might be unable to maintain contacts in the military, an important qualification for the job. The judge dispatched these business necessity objections with the precision of a razor-sharp legal mind.

"The Library's final two proffered legitimate nondiscriminatory reasons -- that Schroer might lack credibility with Members of Congress, and that she might be unable to maintain contacts in the military -- were explicitly based on her gender non-conformity and her transition from male to female and are facially discriminatory as a matter of law. Deference to the real or presumed biases of others is discrimination, no less than if an employer acts on behalf of his own prejudices. See Williams v. Trans World Airlines, Inc., 660 F.2d 1267, 1270 (8th Cir. 1981) (firing employee in response to racially charged, unverified customer complaint is direct evidence of racial discrimination by employer); cf. Fernandez v. Wynn Oil Co., 653 F.2d 1273, 1276 (9th Cir. 1981) ("stereotypic impressions of male and female roles do not qualify gender as a [bona fide occupational qualification]"); Diaz v. Pan American World Airways, Inc., 442 F.2d 385 (5th Cir. 1971) (same).

According to the United States District Court for the District of Columbia, it is now illegal to discriminate against a transgender employee based on "business necessity" objections, even where there is a very strong argument for the assumed transphobia of the clients. The court said this is the same type of flawed reasoning used by those who argued customer bias as a reason for race and sex discrimination. The Court's reasoning applies with the same force to ENDA. The argument that others are assumed to be prejudiced against transgender people, creating a "business necessity" objection to the gender identity protections of ENDA, is nothing more than a cover for personal prejudice. It is transphobia wearing a mask labelled "Business Necessity." This is true regardless of protestations of innocence of any prejudice, and the more violent the protest, the more apparent the transphobia. Prejudice, like superstition, by its very definition requires ignorance as a backdrop. If you know you're prejudiced, you're not.

In fact, I know a number of transgender people who work for military vendors and defense contractors. They interface directly with military personnel, and they have been treated very cordially. Does this mean the military is transgender-friendly? I wouldn't be so bold, but I also wouldn't be so bold as to say all members of the military are so transphobic that anyone doing business with them needs to get rid of transgender employees. It's an unwarranted assumption.

The transphobic "business necessity" objection to ENDA, however well meaning it may be, is based on assumptions stemming from undiscovered personal prejudices. Such assumptions accomplish the same thing that unwarranted assumptions always accomplish: they make an ASS of U and ME.

For more on these topics, see Part I, which discusses concerns about pedophilia, Part II, which discusses fear of loss of religious freedom, and a post discussing the possibility of a sudden flood of litigation and concerns about gay quotas.

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The talking points in opposition to ENDA are virtually identical to the talking points in opposition to the Matthew Shepard Hate Crimes Act. They are also equally disingenuous.

Cue up "Silencing the Christians." You would think that evangelical Christians are an oppressed minority.

Like hate crimes law, there is nothing new in federal law that prohibits employment discrimination. The following laws are currently in effect:

  • Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits employment discrimination based on race, color, religion, sex, or national origin;
  • the Equal Pay Act of 1963 (EPA), which protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination;
  • the Age Discrimination in Employment Act of 1967 (ADEA), which protects individuals who are 40 years of age or older;
  • Title I and Title V of the Americans with Disabilities Act of 1990 (ADA), which prohibit employment discrimination against qualified individuals with disabilities in the private sector, and in state and local governments;
  • Sections 501 and 505 of the Rehabilitation Act of 1973, which prohibit discrimination against qualified individuals with disabilities who work in the federal government; and
  • the Civil Rights Act of 1991, which, among other things, provides monetary damages in cases of intentional employment discrimination.

What is new is that ENDA covers GBLT citizens. There are exceptions for religious organizations and companies with less than 15 employees. According to Focus on the "Family," ENDA will lead to the planet spinning off into space.

A very thoughtful comment, David, thank you. I would note that not only are all these laws in effect, but that many federal courts have ruled that LGBT people are currently covered by Title VII. The world has not yet spun off into space.

These people talk about morals? The same straight people who commit adultery? The same straight people who commit or advocate violence against anyone that may be different? The same straight people who let greed run their lives? The same straight people that are more likely to be pedophiles or child molesters?

Maybe that is the reason they preach against us, to direct attention from themselves?

The more I see of the extreme right wing, the more I am convinced that you are correct, Tammie. I don't have an issue with religious people having their own moral code. But there is a difference between morality and moralizing. Where does the urge to moralize come from? I suspect it is deep-seated feelings of insecurity about ourselves. When I become a self-righteous moralizer, as I think many of us do on some topic or other from time to time, that's where it comes from. I insist on ideological purity because of the times I have not been pure.

I'm so glad you're doing these posts, Jillian. We need to arm ourselves.

My dear Bil, thank you for providing the forum for us all to come together and demand our rights.


Your comments about makeup make me wonder whether you think ENDA would change the result in cases like Jesperson v. Harrah's Operating Co., Inc., 444 F.3d 1104 (9th Cir. 2006), which held that it doesn't violate Title VII to require women, but not men, to wear makeup. Does ENDA's exception for gender-based grooming standards, provided a transitioned employee is allowed (in fact, required) to conform to the grooming standards of her/his affirmed gender, enshrine this result into law?


That same question occurred to me as well (great minds think alike?)

It would seem that ENDA does in fact acknowledge and align with the case law you cite, although "enshrine" might be too strong a word..."reasonable" might have been interpreted one way in a particular case, but the whole matter of what precedent is binding and what isn't gets complicated...as I understand it, in US law lower courts are for the most part bound by the precedents set by higher courts with the Supreme Court having the final say- but the Supreme Court is free to rule against its own precedent.

The most pertinent Supreme Court ruling on sex stereotyping and Title VII is Price Waterhouse v. Hopkins, but it didn't speak specifically to the same issues of grooming raised in the case you cite, so it would seem that the jury is still out, as it were...from what I can see and recall, the precedent re: grooming you cite has not yet been challenged above the circuit court level.

a great overview here-


"Price Waterhouse should plainly have been a watershed case. Gender non-conformity is the essential trait of transsexuals. Thus, a precedent of refusing to allow employers to penalize employees for failing to live up to the gendered expectations assigned to their sex – as the Court did in Price Waterhouse – should logically protect transsexuals.

But has it? The results in post-Price Waterhouse transsexual discrimination cases have admittedly been mixed. Several courts have simply refused to apply the sex-stereotyping theory to transsexual plaintiffs, suggesting that their transsexual status deprives them of a "sex" altogether and thus dispenses with the usual protections against sex discrimination."

One bit of good news on that last matter of "being deprived of a sex altogether", something that has also been used by lower courts to deny sex-based employment discrimination protections to intersex people...

ENDA as written would seem to address this line of reasoning with its definition of "gender identity"-

(6) GENDER IDENTITY- The term `gender identity' means the gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual's designated sex at birth.

-obviously courts can and do interpret even clear language in the most bizarre ways, but as I read it, the phrase "without regard to the individual's designated sex at birth" would seem to put the kibosh on the kinds of convoluted and Pharisaical interpretations of law like those found in the Wilma Wood v, CG Studios case where a district court in PA ruled that-

"The plain meaning of the term "sex", as it is used in the statute, would encompass discrimination against women because of their status as females and discrimination against males because of their status as males. The history of the legislation and the case law show that the statute was intended to achieve equality between the sexes by preventing this type of discrimination."

and then went on to use Webster's Third New International Dictionary's definition of "sex"- not a real law dictionary, and certainly not scientific data- as a basis for this-

"There is no showing that the Act was intended to remedy discrimination against individuals because they have undergone gender-corrective surgery. In the absence of such a showing, I cannot conclude that the Supreme Court of Pennsylvania would give the term "sex" as used in the Act anything but its plain meaning."


The only thing that is certain in all of this is that the men who make these rulings, as an acquaintance of mine married to a judge loves to tell people, "wear dresses to work".

Using the prejudice of others... heard that one before. It's not that we care that you're gay, but the parents of the children who come here....