Academic journal article The Journal of Law in Society

Law, Policies in Practice and Social Norms: Coverage of Transgender Discrimination under Sex Discrimination Law

Academic journal article The Journal of Law in Society

Law, Policies in Practice and Social Norms: Coverage of Transgender Discrimination under Sex Discrimination Law

Article excerpt

Table of Contents  I.   INTRODUCTION II.  THE BEGINNING: THE STATUTE CAN'T POSSIBLY MEAN      WHAT IT SAYS III. THE MIDDLE: MAYBE THE STATUTE MEANS A BIT      OF WHAT IT SAYS IV.  THE PRESENT: THE STATUTE MEANS WHAT IT SAYS V.   CONCLUSION 

I. INTRODUCTION

To achieve any lasting change in social justice, three variables must operate in a synergistic fashion: law, policies in practice, and social norms.

In this context, "law" means the words of the law developed by Congress, the President, and the courts, and their equivalents at the state and local levels. Law thus includes the text of the statute as written and enacted by a legislature, the text of regulations and guidance that are issued by an agency implementing the law, and finally the text of judicial decisions interpreting either the statute or administrative regulations and guidance. In other words--a lot of words.

"Policies in practice" refers to whether and how the text of a statute, a regulation or guidance, or a court decision has been absorbed into the workings of an entity that is regulated by the law. Simply having a law in place, written and implemented by a legislature, agency and court, will not guarantee effective policies in practice. For that, one needs entities governed by the law to truly absorb the law into the very sinews of their organizations. For example, if employers do not fully understand a law, then they will not comply with it very well. Similarly, if employers are antagonistic about a law, for whatever reason, they will be less likely to follow it.

Finally, "social norms" are the normative assumptions or beliefs behind a social justice goal. This is about how important the general population feels and thinks about the social goal that the law seeks to achieve. Social norms are about changing hearts and minds--not something we usually associate with law. Yet, social norms affect and are affected by the law and policies in practice.

Law schools have historically focused mainly on one segment of the first variable--law as described in judicial opinions. However, to develop effective social justice advocates, law schools must educate students about all three variables--and about how they interact with each other.

This Article explores the intersection of these variables by considering the development of coverage for transgender persons under Title VII, including the role played by the Equal Employment Opportunity Commission ("EEOC" or "the Commission") in its 2012 decision in Macy v. Department of Justice. (1) Several factors have operated together to achieve the social justice goal of prohibiting the use of gender in employment decisions--the use of the term "sex" in Title VII, as created by Congress and as interpreted by the agencies and the courts; the policies put into practice to advance women's workforce participation; and changes in social norms, both with regard to women and to transgender people.

The Commission issued thousands of decisions in 2012, the vast majority of which were issued by the Office of Federal Operations, pursuant to power delegated to it by the Commission. The Office of Federal Operations decides what cases should receive extra review and be voted on by the Commission, based on the issues in question. In 2012, the Commission reviewed and voted on only 13 cases, including the Macy case. (2)

The Commission's ruling in Macy was straightforward: complaints of discrimination on the basis of transgender status should be processed under Title VII of the Civil Rights Act of 1964 and through the federal sector equal employment opportunity complaint process as claims of sex discrimination. (3)

The legal reasoning in Macy was also straightforward. Title VII of the Civil Rights Act of 1964 (as amended in 1972 to apply to the federal government) prohibits employment discrimination on the basis of "sex." (4) This means that an employer cannot take sex into account when hiring, unless hiring a person of a particular sex is a "bona fide occupational qualification" (BFOQ). …

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