Academic journal article Duke Journal of Gender Law & Policy

Effects of EEOC Recognition of Title VII as Prohibiting Discrimination Based on Transgender Identity

Academic journal article Duke Journal of Gender Law & Policy

Effects of EEOC Recognition of Title VII as Prohibiting Discrimination Based on Transgender Identity

Article excerpt

INTRODUCTION

In the last few years in the United States, the transgender community has become more visible in the public arena. In 2015 alone, seven transgender characters premiered on television shows, (1) a transgender man was named a semi-finalist in the Ultimate Men's Health Guy Competition, (2) and President Obama hired the first transgender White House official. (3) In the continuously evolving public discussion of transgender people, attention is frequently focused on the lives of transgender celebrities, such as the Orange is the New Black actress, Laverne Cox, (4) and former Olympic athlete and reality television star, Caitlyn Jenner. (5) The star-studded, glamorous experiences of these celebrities, however, do not accurately reflect the socioeconomic realities of most transgender individuals. In 2011, the National Center for Transgender Equality and the National Gay and Lesbian Task Force surveyed 6,456 people who identified as transgender and gender non-conforming. (6) The study revealed that transgender individuals are likely to live in extreme poverty. (7) Study participants were nearly four times more likely to have a household income of less than $10,000 per year than the general population. (8) They also experienced unemployment at twice the rate of the general population. (9) The study further revealed that in the workplace, discrimination based on transgender and non-conforming gender identities was a "near universal experience" for the study's participants. (10) Further, forty-seven percent of the survey respondents reported that they had experienced an adverse employment action--defined as losing a job, being discriminated against in hiring, and/or being denied a promotion--because of their transgender or nonconforming gender identities. (11)

Discrimination against transgender employees may implicate Title VII of the Civil Rights Act of 1964 ("Title VII"). Title VII prohibits employers in the United States from "fail[ing] or refus[ing] to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment" based on the employee's "race, color, religion, sex, or national origin." (12) If current trends in employment discrimination law continue, Title VII's prohibition on sex discrimination also will prohibit employers from discriminating based on an employee's transgender identity.

The United States Article III courts have not yet interpreted Title VII to prohibit discrimination based on transgender identity alone. But the Equal Employment opportunity Commission (EEoC), the agency charged with implementing the statute, has interpreted Title VII's prohibition on sex discrimination as prohibiting discrimination based on a person's transgender identity. (13) The agency has taken action to ensure employers' compliance with this interpretation of Title VII. (14) Although lacking the force of law (15) and Chevron deference in court, (16) the EEOC's interpretation of Title VII likely has helped to develop a new, and thriving, area of employment discrimination law. Additionally, the EEOC's interpretation of Title VII may create an impetus for recognition of transgender employment rights by the federal courts.

I. TRANSGENDER PEOPLE: BACKGROUND INFORMATION

In October 2009, President Obama became the first United States president to mention the word "transgender" in a public statement. (17) In January of 2015, President Obama made transgender history once again, becoming the first president to reference transgender people in the State of the Union Address. (18) Although the office of the President has officially recognized transgender people only in recent years, transgender people are not a new phenomena: transgender people have been documented in Eastern, Western, and indigenous cultures since antiquity. (19) For example, India's hijras, transgender male-to-female individuals, (20) are mentioned in Hindu mythology. …

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