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

By Feldblum, Chai | The Journal of Law in Society, Winter 2013 | Go to article overview

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


Feldblum, Chai, The Journal of Law in Society


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). …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Note: primary sources have slightly different requirements for citation. Please see these guidelines for more information.

Cited article

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

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen
Items saved from this article
  • Highlights & Notes
  • Citations
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Search by... Author
    Show... All Results Primary Sources Peer-reviewed

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.