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Transgender Discrimination

Transgender Discrimination

Recent EEOC Ruling Recognizes
Transgender Discrimination

A landmark ruling by the Equal Employment Opportunity Commission (EEOC) has lesbian, gay, bisexual and transgender (LGBT) activists and equal rights advocates around the country breathing a sigh of relief. The EEOC declared in an April decision that transgender people are protected against workplace discrimination based on their sexual orientation or gender identity.

Why Is This Decision Important?

A series of federal court cases in the 1980s expressly disavowed gender discrimination claims of transgendered people. Since that time, advocacy groups like the Transgender Law Center and the American Civil Liberties Union (ACLU) have lobbied to have Constitutional protections extended to all LGBT persons facing harassment or discrimination while on the job. Their efforts have yielded some measure of success over the years, with 16 states now explicitly banning workplace discrimination based on – to borrow phrasing from the ACLU – “gender identity or expression.”

The federal government has been reluctant to take similar action, though, as seen by the fact that the Employment Non-Discrimination Act (a broad-ranging law that would have encompassed all manner of sexual orientation and gender identity/expression discrimination) has repeatedly failed to be enacted by Congress. Positive strides have been made by other cases and agency decisions, including a case brought by the ACLU against the Library of Congress and a Lambda Legal (a nationally recognized legal group advocating for the rights of gays, lesbians, bisexuals, transgendered persons and people with HIV/AIDS) case involving discrimination suffered by a worker at the federal General Assembly’s Office of Legislative Counsel.

In spite of steps in the right direction, this ruling from the EEOC is the first official acknowledgement from a federal agency that transgendered and transsexual individuals are entitled to protection from gender-based discrimination.

The Background

The EEOC decision arises from a unique situation in which a male applicant was hired by the Federal Bureau of Alcohol, Tobacco, Firearms and Explosives. He then acknowledged that he was in the process of transitioning from a male to a female, shortly after which he was told that the job had been eliminated due to budgetary constraints. The job had not been eliminated, however, and instead was given to a non-transgender applicant.

The matter was brought to the attention of the EEOC by the Transgender Law Center, and the EEOC found that the actions of the ATF against their transgender applicant were indeed the result of the type of gender-based discrimination that employees and prospective employees should be protected from. The precedent-setting rationale given by the EEOC is broad enough that it can easily transition from only being applicable to workplace discrimination against transgendered/transsexual job applicants and employees to also preventing disparate treatment in housing, education and lending.

Next Steps

Since the EEOC decision is still relatively new, it is unlikely that its full precedential value has been recognized. If, in the interim, you or a loved one has been discriminated against by virtue of your being transgender or transsexual, seek the counsel of an experienced employment discrimination attorney in your area to learn more about possible legal actions that could be taken to protect your rights.


Ricotta Marks

Ricotta & Marks, P.C.

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