What Kind of Girl Are You?

The Equal Employment Opportunity Commission (EEOC) has just issued a groundbreaking ruling, one so profound that it will transform many lives in years to come. Before I tell you what it is, I’m going to ask you to dive into two thought experiments and read just a bit of employment history.  

First, the thought experiments. Imagine that, for years, you’ve been been doing an outstanding job at whatever it is you do: driving a forklift, or teaching biology, or engineering bridges, or putting out fires. Your job is a refuge: Here’s a place you can excel, no matter the tumult you’ve had inside. You enjoy your colleagues; you like the respect and satisfaction you get from doing things well.

Meanwhile, in your private life, you have come to the realization that only one thing would make your life worth living is adjusting your body to the sex you feel yourself to be, inside, rather than the sex you were born with and that everyone else sees. You begin the long process of transitioning from Carl to Catherine, and for the first time in decades, you are excited again to be alive. This is how you were meant to live: inside softer skin and curves, visible now as a Ms.

But at work, they’re flipping out. Two women have begun insisting that you must not use the women’s restrooms; going into the men’s is sheer humiliation, bringing mockery and, occasionally, threats; and as a result, you have to go eight hours a day without peeing. You walk into the lunchroom and overhear your manager referring to you as a freak. The snickering, the recoil—suddenly your secure job is a living hell.

Maybe they’re direct about it, and fire you, telling you that changing your sex is unnatural, or that you’d be happier somewhere where they didn’t know you when you were a man. Or maybe one day, the department is reorganized. Your manager calls you into the office. You knew it was coming; you are no longer needed. You’re escorted out of the building with a box of your things.

You get interviews for other jobs, but they fall apart as soon as they call your references. For the first time in your life, you cannot find work.  

You could always get a job as a man. But you can’t get a job as a woman.

Is this sex discrimination?

Okay, second thought experiment. You’ve been a bartender at the same Nevada casino for twenty years, regularly bringing in praise for your work. One day, new management decrees that all women working in the casino must meet with a professional image consultant, and wear foundation, blush, mascara and lip color at all times. You’re a woman—but a woman who is nearly six feet tall, broad-shouldered, with a very straightforward appearance. You try, but the idea of turning into a Barbie doll every single day—when the guys you work with don’t have to—is so revolting that you want to throw up. You just can’t go out the door looking like that. You cannot be that kind of woman. And so the casino fires you.  

Is this sex discrimination?

Under the law, the sex discrimination test is often phrased as “but for”: If, but for your sex, you would have kept that job, then it is sex discrimination. But for her sex, both employees would have kept their jobs, yes? I’ve always thought so, but the courts have disagreed. The first example, above, is a consolidation of many, many stories I’ve heard over the years; born-male folks who transition to female far too often have a terrifyingly hard time making a living afterward, and they’ve found no recourse in the courts. The second example actually went up to the Ninth Circuit in  Jespersen v. Harrah’s—and lost (in the Ninth, putatively the most liberal appeals court in the country!). The Ninth decided that there were grooming standards for both men and women—men had to have short hair, for instance—and there was no undue burden on the ladies.

I’ve long had trouble understanding that. In 1989, the Supreme Court decided that Ann Hopkins was discriminated against illegally when she was denied partnership at Price Waterhouse because her behavior wasn’t “feminine” enough. There was no question, in the case, that she did great work, actually outperforming her peers. But they told her she was too “macho,” abrasive, overbearing, and that she needed “a course in charm school.” Her supervisor actually advised her that she’d have a better chance making partner if she would “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” She sued. The Supreme Court decreed that it was illegal for employers to discriminate based on sex stereotypes, and sent the case back down to trial on a higher standard: But for her sex, would she have been promoted? Hopkins won, and women have had the right (on paper, at least) to behave in many different ways, deviating from the feminine stereotype to their hearts’ content.

LGBT advocates had high hopes for the Hopkins v. Price Waterhouse standard, at the time. What are my two thought experiments, above, except precisely that: firing based on stereotypical images of what a woman is or should be? But Ann Hopkins, I’ve been told, wasn’t gay; she was just a tough lady, who probably only had the nerve to bring her case because it manifestly was not about being gay. Far too often, when courts have looked at similar discrimination for lesbian, gay, or transgender employees, they’ve said: Wait, this isn’t about sex stereotypes; it’s about being gay, and there’s no law banning discrimination against gay folks. Or wait, this is about changing your sex, and there’s no law banning discrimination for that. Too bad, buh-bye!

Now here’s the great news. The EEOC has just issued a ruling that could change all that, saying that gender identity is protected under Title VII of the 1964 Civil Rights Act, as a subset of discrimination based on sex. At MetroWeekly, Chris Geidner has a great report on and analysis of the ruling, quoting Shannon Minter, legal director at National Center for Lesbian Rights (and someone I respect tremendously), as saying this:

Minter, who has been working for LGBT legal equality since law school in the early 1990s, says, ''This is huge. This is a real sea change.

''To have just a clear, definitive EEOC ruling that Title VII protects transgender people gives us so much more certainty and security and solid, reliable legal protection. For decades now, advocates and scholars both have been saying Title VII should be applied to protect transgender people,'' he says. ''And now, to have the EEOC confirm that, 'Yes ... Title VII should and does protect transgender people when they're discriminated against because they've changed their sex or intend to change their sex or because they're gender nonconforming. That is sex discrimination.' That is really an important capstone.''

Under this ruling, Darlene Jespersen and male-to-female transgender folks might still be fired for being the wrong kind of woman—but now they can make it a federal lawsuit.

For years, the LGBT activist community has worked fiercely to pass a federal law banning discrimination based on either sexual orientation or gender identity, called the Employment Non-Discrimination Act. It has repeatedly failed to pass, even though three-fourths of Americans believe you shouldn’t be able to be fired for being gay (and many agree that you shouldn’t be fired for being transgender). Gender identity has always been the most important part. Why should it matter, for the purposes of your job, whether you are a man or a woman—or switch from being one to the other? Meanwhile, if lesbians and gay men face workplace discrimination these days, it’s more often based on gender presentation – being fey men, or butch ladies – rather than on who they go home to at night.

The EEOC ruling can still be overturned at the Supreme Court level, so ENDA is still important. But as Shannon Minter says, this is huge. Huge.

Comments

I filed a case on this theory for a plaintiff in 2009 because it was on a federal enclave and the California laws therefore didn't apply. I left the firm before it was finished.

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