Magazine article The Advocate (The national gay & lesbian newsmagazine)

The Title VII Awakening: How Transgender Workplace Protections Are Drawing a New Map in LGB Rights

Magazine article The Advocate (The national gay & lesbian newsmagazine)

The Title VII Awakening: How Transgender Workplace Protections Are Drawing a New Map in LGB Rights

Article excerpt

[ILLUSTRATION OMITTED]

While the advancement of transgender Americans has sometimes been viewed as dependent upon the success of the broader LGBT movement, workplace protections are one place where trans Americans are pioneering a whole new area of the law--and lesbians, gays, and bisexuals appear to be following their lead.

In a series of court decisions over the past couple of decades, the definition of what constitutes "sex discrimination" under Title VII of the Civil Rights Act of 1964 has broadened considerably to include discrimination against transgender employees. But a new development in a case earlier this year could foretell a further evolution of Title VII to cover LGB workers as well.

Since 2004, several federal courts have ruled in favor of trans plaintiffs making discrimination claims, but the first court of appeals case to unequivocally equate anti-trans bias with sex discrimination was Glenn v. Brumby. The case was brought by Lambda Legal on behalf of Vandy Beth Glenn, who was fired from her job as a legislative editor for the Georgia General Assembly based on her intent to transition. The 11th Circuit Court of Appeals, which covers Florida, Georgia, and Alabama, ruled in Glenn's favor in December 2011, restoring her to her original post at the state legislature.

"It was the first federal appeals court decision to really make the explicit connection that discrimination against a transgender employee is always a form of discrimination on the basis of nonconformity with sex stereotypes," explains Ilona Turner, legal director at the Transgender Law Center.

Several months later, the Equal Employment Opportunity Commission--the federal agency charged with enforcing laws that prohibit workplace discrimination-- went a step further by expanding the definition of discrimination under Title VII to include antitrans bias in a case known as Macy v. Holder.

"[W]e conclude that intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination 'based on ... sex,' and such discrimination therefore violates Title VII," read a unanimous ruling from the five EEOC commissioners in April 2012. A footnote at the bottom of the page further clarified: "With this decision, we expressly overturn ... any contrary earlier decisions from the Commission."

The ruling, while only binding for federal agencies, is considered very influential because it is instructive to federal courts that are addressing the issue for the first time. It also codified a trend in case law that had been building over time. Any judge who runs afoul of the EEOC decision will have to at least address the issue or risk being overturned.

"No judge likes having their rulings overturned, so Macy is definitely an important decision," says Dr. Jillian Weiss, a law professor at Ramapo College of New Jersey and a trans advocate who litigates trans discrimination cases.

But the latest twist that shows promise for the broader LGBT movement comes from Washington, D.C., where federal district court judge Colleen Kollar-Kotelly ruled that a gay man, Peter TerVeer, could move forward with a sexual orientation discrimination claim under Title VII.

"TerVeer is a homosexual male whose sexual orientation is not consistent with the Defendant's perception of acceptable gender roles," read the original complaint.

The lawyer who is handling TerVeer v. Billington, which will likely take another couple years to litigate, calls the development a "giant step forward" for workplace protections based on sexual orientation.

"In the past, the trend had been that an LGBT individual--under sex stereotyping theory--had to act outside of his or her gender norm at work," says attorney Christopher Brown, of the law firm Ackerman Brown, lead counsel on the TerVeer case. "If a man were to wear effeminate clothing or were to walk or speak effeminately, he may have had a claim. …

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