Transgender Protection in the Workplace – PART ONE

posted by Boyd Neil

by Michelle Tsai, senior account supervisor for the corporate group in the New York office. 

This is the first of a two-part post on equal protection for transgender employees in the workplace.

When I started my communications career in the early 1990s at the Texas Department of Transportation as a public information officer, my boss told me there was an unwritten rule that women were discouraged from wearing pants in the office, by fiat of the district engineer.  But, she said, things were better than when she started her career in the 1970s, when women who flouted this rule were actually sent home to change! 

We’ve come a long way indeed.

Interestingly, this example of our shifting attitudes toward sex stereotypes (i.e. that women wear skirts and men wear pants) has become a factor again with regard to non-gender conformist individuals increasingly present in the workplace.  This group includes transgender men and women, people who are transitioning or have already transitioned to a different sex than they were assigned at birth; and intersex individuals, those born with genetic anomalies that can cause impaired development of secondary sex characteristics.  But this group also includes individuals who simply are more comfortable with challenging traditional sex stereotypes, such as men with long hair, or women who don’t wear makeup.

In order to fully understand the issue, it’s important to make a distinction between three separate concepts: gender identity, gender expression, and sexual orientation.  Gender identity is your own internal feelings of being male, female, both or neither.  Gender expression is how you present yourself externally to the world, whether masculine, feminine or androgynous.  Sexual orientation is your preference for a partner based on your physical, emotional and spiritual connection to the gender qualities of another person, and is usually described as being gay, lesbian or bisexual.

Public attitudes and legal protection of transgender employees varies widely throughout the world, with Canada and Europe generally more liberal and the Middle East generally more conservative.  Currently, there is no federal law in the United States that explicitly prohibits discrimination against lesbian, gay, bisexual, and transgender (LGBT) people. Title VII of the Civil Rights Act of 1964 outlaws hiring or employment discrimination on the basis of the employee’s “race, color, religion, sex, or national origin,” but does not mention sexual orientation, much less gender identity.

Early court decisions held that transgender people were not entitled to protection from employment discrimination under Title VII. More recently, however, a new line of cases, based on intervening U.S. Supreme Court decisions, may provide protection for LGBT people in some situations. 

In my next post, we’ll look at one landmark Supreme Court case almost 20 years ago that continues to impact gender identity law today, and take a look at the progress we’ve made in establishing equal rights for LGBT employees in the workplace.


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1 Comment


Leo Bottary

Great post by the way.  What I find interesting about the fact that there’s no federal law that explicitly prohibits such discrimination, companies would be wise to hold themselves to a higher standard.  Not long ago, companies were knowingly dumping dangerous chemicals into rivers, but later excused their acts by stating that it wasn’t against the law at the time.  These are the same people who rail against excessive government regulation.  Go figure.

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