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The quest for workplace diversity, inclusion and equity undoubtedly remains an ongoing process for transgender workers. However, the last decade has seen increasing strides to protect trans people and make the workplace more inclusive.
"Legal protections for transgender people in the workplace are much stronger than 10 years ago," says Rodrigo Heng-Lehtinen, executive director for the National Center for Transgender Equality. "Many states have gradually updated their nondiscrimination protections to explicitly include their transgender residents. [In the summer of 2020], the Supreme Court issued a landmark ruling in Bostock v. Clayton County that confirmed once and for all that it is illegal to refuse to hire or to fire someone simply because they happen to be transgender. Employees should be evaluated based on how well they do the job, no more, no less."
Protection under Title VII
The ruling Heng-Lehtinen mentions provides clarity to Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex, and national origin. Through the years, members of the LGBTQ community have sought protection from workplace discrimination under this act. However, the act as written does not explicitly include sexual orientation or gender identity. Thus, state courts have been torn as to whether the sex discrimination provision must apply.
Bostock v. Clayton County came about from bringing together three separate cases from the federal appellate courts. Two involve individuals who were terminated after revealing that they were gay. The other case stems from a funeral home that fired employee Aimee Stephens who presented as a male when hired but later informed her employer that she planned to "live and work full-time as a woman." The Supreme Court's decision on June 15, 2020, made clear that employment discrimination based on sexual orientation or gender identity violates Title VII.
Title VII applies to private and public employers with 15 or more employees. In addition to unlawful termination, the act covers other unjust employment-related actions, such as denying transgender workers a promotion because of their identity or treating trans applicants differently from other job candidates.
Note that Title VII also prohibits harassment based on membership in a protected class. When a transgender worker alerts an employer to a co-worker or client making threatening or derogatory remarks, "jokes," or actions, the employer has a legal responsibility to take action. If the employer fails to do so or puts forth an unsatisfactory effort, the victim can file a complaint with the federal Equal Employment Opportunity Commission or a state civil rights or fair employment agency.
Protection for transgender federal workers
As the nation's largest employer, the government has specific laws and policies supporting transgender federal workers. For instance, the Civil Service Reform Act of 1978 prohibits discrimination by the federal government based on "conduct which does not adversely affect the performance" of an applicant or employee. Executive orders exist that prohibit discrimination in federal employment based on sexual orientation or gender identity, including by companies that contract with the federal government.
The National Center for Transgender Equality points out that federal workers should be aware that they possess the following rights:
- The right to transition at work, including how and when you wish co-workers to be informed
- The right to dress according to your gender identity once you've informed management that you are transitioning
- The right to be called by your chosen name and preferred pronouns
- The right to use restrooms and locker rooms in line with your gender identity
- The right to privacy concerning your transgender status and medical information
"Despite growing legal protections, discrimination still persists," Heng-Lehtinen notes. "According to our U.S. Transgender Survey, 30% of respondents who had a job reported being fired, denied a promotion, or experiencing some other form of mistreatment in the workplace, such as being verbally harassed or physically or sexually assaulted at work. This was before the Bostock v. Clayton County Supreme Court decision, but it nevertheless shows that discrimination against transgender people at work is a serious issue."
While Bostock v. Clayton County is a significant step, The National Law Review points out that the decision likely will receive a "myriad of potential challenges" such as "whether an employer's sincerely held religious beliefs or another religious exemption could shield an employer from having to comply with the mandates." The Supreme Court also did not address issues of sex-segregated bathrooms, locker rooms, and dress codes.
And while many states have enacted legislation designed to further the rights of transgender individuals, others are moving in the opposite direction. According to the Human Rights Campaign, more than 250 anti-LGBTQ bills were introduced in state legislatures across the country in 2021. Arkansas, Montana, Tennessee, and Texas especially have seen an increased introduction of measures against transgender rights.
Then, there's the future of the Equality Act, which would add sexual orientation and gender identity to existing federal nondiscrimination law that already protects people based on sex, religion, and race. It passed the U.S. House of Representatives earlier this year, but the act has yet to get on the Senate floor.
If passed, the Equality Act would extend explicit legal protections to transgender people regardless of state of residence. It also would send a powerful message that the 2020s truly are a turning point in the nation's commitment to dignity and respect for all.