The Employment Non-Discrimination Act (ENDA) is a federal bill that would prohibit many employers from discriminating on the basis of sexual orientation or gender identity. This would include firing, hiring, and general on-the-job discriminatory practices. Over 70 percent of Americans support the federal protections ENDA could provide. ENDA passed the Senate 64-32 in November 2013, and is currently waiting in the House to be called to a vote.
Many Americans believe ENDA is already the law of the land and that LGBT employees are protected against discrimination. However, only 21 states currently have laws protecting against job discrimination on the basis of sexual orientation, and a mere 17 states have explicit protection against job discrimination on the basis of gender identity.
My colleague received the question posed in the headline of this piece after a webinar on the intersection of LGBT rights and reproductive justice. I both live and work at this intersection, and so I was particularly struck by this webinar attendee’s question—why is LGBT employment discrimination significant when it is “easy” to hide this identity? I’ll be honest, my first reaction was a bit of frustration because it seemed like yet another person trying to push us all back into the closet. But I have to believe this was a genuine question and perhaps one other people were wondering about, including my own friends and family.
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Being out at work—and working at a place where that is not just accepted, but celebrated—means everything to me. Hiding who you are at work can be a difficult and painful thing to do, and being “found out” in a state without an ENDAcan cost you your job or subject you to unwanted harassment, no matter what steps you have taken to remain closeted at work. Additionally, although some LGBT people are able to hide their sexual orientation or gender identity from their coworkers, some either do not “pass” as straight or cisgender, or may be purposefully or accidentally “outed” by a coworker or friend. Even if your workplace doesn’t fire you, keeping your sexual orientation or gender identity a secret has serious implications for LGBT employees. Hiding sexual orientation can result in workers not getting access to workplace benefits for same-sex partners and families. Likewise, hiding gender identity can hinder access to appropriate health-care benefits for transgender workers.
There are also day-to-day consequences of hiding who you are. For example, it is not at all unusual to discuss dating life and romantic relationships at the proverbial water cooler in an office environment. Additionally, at office events people are encouraged to bring a date, and many people want or choose to bring their significant others. This may lead LGBT people to avoid socializing at work altogether in order to avoid uncomfortable personal questions or conversations. These two things are only small examples of how an LGBT person may have to suppress their own identity and personal life at the expense of not being able to be honest or speak openly with their colleagues, and at the expense of not being able to share their work environment and colleagues—arguably very significant parts of a person’s life, given that many people spend eight hours a day at the office—with a partner or significant other.
On the other hand, an article by the Center of American Progress discusses the increased productivity, workplace satisfaction, and job commitment from LGBT people who are out at work. This is corroborated by the recent account of a PepsiCo employee discussing her personal story of what it meant to her to be able to come out at work.
Economic justice is inextricable from reproductive justice, as thesecaseshelpillustrate. The thing to focus on as we consider and debate ENDA with lawmakers, family, and friends is whether or not people should be fired just for being who they are.
“This is not who we are.” “This is not America.” These sentiments have become a common refrain in recent years in the response to everything from mass shootings to police abuse of power and police brutality toward protesters, to blatantly racist acts by members of a fraternity. In response to a CIA report describing the extent of torture and brutality used on prisoners in the “war on terror,” President Barack Obama asserted “this is not who we are,” because torture is “contrary to our values.” And in the wake of the mass shootings last year in San Bernardino, California, U.S. Attorney General Loretta Lynch stated that: “Violence like this has no place in this country. This is not what we stand for, this is not what we do.”
But these statements are at best aspirational for a country in which the leaders of at least one major political party regularly exploit intolerance, fear, and “morality” to win campaigns, and in which the leaders of the other too often hide behind platitudes and half-measures intended to placate specific constituencies, but not fundamentally challenge those realities. They are at best aspirational for a country in which the beliefs of Islamic fundamentalists are condemned, but the same views when espoused by conservative Christian fundamentalists are given legal and social approval by both parties, because … religion. They are at best aspirational for a country in which women’s rights to their own bodies are a subject of ongoing debate, medical professionals are villainized and murdered, and rape and sexual assault are often blamed on the victim. These statements are also aspirational in a country in which we imprison people of color of every age, sex, and gender at rates far higher than whites; actively rip families apart by deporting millions of undocumented persons; and pass laws denying people access to basic human needs, like bathrooms, due to their gender identity.
We are not what we say. We are what we do.
Consider the events of the last 24 hours. A U.S.-born citizen (born in New York, living in Florida) opens fire in a large gay nightclub, killing at least 50 people and injuring at least 53 more. The shooter’s father suggested that the rampage was not due to religion but “may” have been incited by his son’s anger at seeing two men kissing. His former wife described him as being violent and unstable. He allegedly made a call to 9-1-1 to declare himself a supporter of ISIS. He used a military-grade assault rifle to carry out what is being called one of the deadliest mass shootings in U.S. history.
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Before any details were shared by the FBI or Florida law enforcement, Rep. Peter King (R-NY), known for scapegoating Muslim Americans and calling for racial and religious profiling, was on CNN claiming that the U.S.-born shooter was “from Afghanistan.”
“If in fact this terrorist attack is one inspired by radical Islamic ideology, it is quite frankly not surprising that they would target this community in this horrifying way, and I think it’s something we’ll have to talk about some more here, across the country,” he said.
Rubio [also] said it’s not yet clear what the shooter’s motivations were, but that if radical Islamic beliefs were behind the shooting, “common sense tells you he specifically targeted the gay community because of the views that exist in the radical Islamic community with regard to the gay community.”
Rubio would appear to share those views “with regard to the gay community.” He is against same-sex marriage and made that opposition a key issue during his recent run for the GOP presidential nomination. He opposes legislation to make employment discrimination on the basis of gender or sexual orientation illegal, supports “conversion therapy,” and is against the rights of gay persons to adopt children.
What, exactly, is the difference between the hatred spewed by radical Islamists and that by conservative Christian fundamentalists in the United States? How can any less responsibility be laid at the feet of the U.S. politicians and their supporters for violence and terror when they espouse the same forms of hatred and marginalization as those they blame for that terror? Why are we so quick to connect the lone gunman in Orlando with Islam and so unwilling to connect the “lone wolves” like Robert Dear, Angel Dillard, and Scott Roeder with the Christian right, or to hold young white star athletes accountable for the violence they commit against women? Why are we so loath to talk about rational limits on an AK-47 assault rifle, a weapon of war, when mass murders have become routine?
It may not be pretty and it may be hard to acknowledge, but as a country we are more like those we rush to condemn than we are willing to admit. We are a country founded on and fed by a strong historical current of patriarchy, white supremacy, systemic racism, misogyny, discrimination, and scapegoating, all of which in turn feeds hatred, violence, and terror. That is part of who we are as a nation. Pretending that is not the case is like pretending that your severely dysfunctional family is just fine, and that the violence you experience daily within it is just an aberration and not a fact of life.
But it is not an aberration. Christian fundamentalist hatred is not “better” than Islamic fundamentalist hatred. White American misogyny is not “better” than Islamic fundamentalist misogyny. Discrimination and the abrogation of rights of undocumented persons, people of color, LGBTQ people, or any other group by U.S. politicians is not different morally or otherwise than that practiced by “other” fundamentalists against marginalized groups in their own country.
We are what we do.
We like to act the victim, but we are the perpetrators. Until we come to grips with our own realities as a country and take responsibility for the ways in which politicians, the media, and corporate backers of both help bring about, excuse, and otherwise foster discrimination and hatred, we can’t even begin to escape the violence, and we certainly can’t blame anyone else. We must aspire to do better, but that won’t happen unless we take responsibility for our own part in the hatred at the start.
Editor’s note: This piece has been updated to clarify the details around the Texas Lt. Gov. Dan Patrick tweet.
A recent lawsuit filed by two transgender North Carolinians may offer an opportunity for the U.S. Supreme Court to expand the reach of the 14th Amendment’s Equal Protection Clause to include transgender people. In the lawsuit, Carcaño v. McCrory, Joaquín Carcañoand Payton McGarryhavechallenged the constitutionality of the bathroom provisions of HB 2, North Carolina’s newly passed law that, among other things, prohibits transgender people from using public restroom facilities that align with their gender identity.
The law singles out transgender people and denies them a benefit that cisgender people enjoy—the ability to use public restrooms consistent with their gender identity—and so it seems to be a fairly straightforward violation of the Equal Protection Clause, which prohibits singling out a specific group of people for mistreatment under the law. That said, the Court has not yet weighed in as to where gender identity discrimination fits into the Equal Protection Clause. The speed with which state legislatures are passing bathroom discrimination bills, however, suggests that it won’t be long before the Court is asked to do so. Without constitutional protection, more of these policies targeting transgender people will continue to be implemented throughout the country.
Despite a long history of unjust discrimination against transgender people, lower courts have time and again refused to deem them a protected class because, in their estimation, transgender people—or “transsexuals,” as much of the case law describes them—are not a “discrete and insular minority.”
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Since the Court first articulated the concept in the 1930s,it has developed hallmark characteristics to determine which “discrete and insular minorities”—otherwise known as “suspect classes”—require special assistance from courts when it comes to laws that discriminate against them, and how much assistance courts should render. These are groups that have historically been subjected to discrimination, groups that are a small percentage of the population and therefore in danger of tyranny by the majority, and groups with “immutable characteristics,” a term coined by the Court to describe things like race and gender.
Black people, for example, are a suspect class according to Supreme Court jurisprudence. Laws that target them for discrimination will rarely pass constitutional muster because the strict scrutiny standard, which requires that the law be narrowly tailored to promote a “compelling government interest,” is a difficult hurdle to surpass. In other words, if a law singles out Black people for different treatment, the government must have a damn good reason why, and the Court is going to start from the presumption that the government’s reason still isn’t good enough.
Women, on the other hand, are a “quasi-suspect class”: The Court has determined that laws targeting women for unequal treatment may pass constitutional muster, if the laws are substantially related to an “important government interest.”
But when it comes to transgender people, most courts have refused to call them a suspect or quasi-suspect class.
Determining that trans people should be protected by the courts does not require an academic discussion about the immutability of gender identity, however. All it requires is common sense.
The suicide attempt rate for transgender or gender-nonconforming people in the United States is 41 percent, compared to 4.6 percent among the overall population. The unemployment rate in the trans community is double what it is for the country as a whole. Violence against trans people, trans women of color in particular, is staggering, as are poverty levels. Transgender people aren’t adequately represented in government bodies, and due in partto their small numbers, they lack the political power to prevent laws that discriminate against them from being passed.
Just look at the way HB 2 was rushed through the North Carolina legislature: On February 22, the Charlotte City Council approved an ordinance that would amend existing public accommodations policies to include protection from discrimination based on “gender identity,” “gender expression,” and “sexual orientation.” A month later, after a quasi-emergency legislative session, Gov. Pat McCrory (R) was already signing a law stripping away those protections and preventing any other cities from enacting similar ordinances at a cost of approximately $42,000 to North Carolina taxpayers. The law is so apparently unconstitutional that Roy Cooper, North Carolina’s attorney general and Democratic gubernatorial candidate, refuses to defend it, calling it a “national embarrassment.”
This rush to strip LGBTQ people of rights is a case study in the rule of a tyrannical majority over a “discrete and insular minority.” Indeed, it is difficult to think of a group of people more deserving of the “suspect class” label than transgender people.
But for reasons that no court has been able to articulate satisfactorily, laws that discriminate against transgender people—some of the most vulnerable members of our society—have generally not warranted a stricter examination than rational basis review, which rarely results in legislation being struck down.
In 1977, for example, in a case called Holloway v. Arthur Andersen & Co., the Ninth Circuit Court of Appeals reasoned that “transsexuality” did not meet the indicia of a suspect classification because transsexuals are not a “discrete and insular minority” and because the plaintiff in that case did not establish that “transsexuality is an immutable characteristic determined solely by the accident of birth, like race, or national origin.”
Occasionally, lower courts have lumped gender identity in with biological sex, although trans and cis women can face different kinds of oppression.In a 2011 case, Glenn v. Brumby, the 11th Circuit Court of Appeals found that “discriminating against someone on the basis of his or her gender non-conformity constitutes sex-based discrimination under the Equal Protection Clause.” The terms “protected class,” “suspect class,” or “quasi-suspect class” are not found anywhere in the opinion.
Because of all that uncertainty, transgender people have often turned to suing under claims of employment discrimination in violation of Title VII, or education-based discrimination in violation of Title IX. And they’ve found success, even as the courts sidestep the protected class issue.
This is because a 1989 Supreme Court case, Price Waterhouse v. Hopkins, recognized a Title VII cause of action for discrimination based on an employee’s failure to conform to stereotypical gender norms. (Title VII and Title IX cases are often analyzed using the same set of legal principles.)
In 2004, in a case called Smith v. City of Salem, the Sixth Circuit Court of Appeals applied the Price Waterhouse theory to “transsexuals”: “[d]iscrimination against a plaintiff who is a transsexual—and therefore fails to act and/or identify with his or her gender—is no different from the discrimination directed against Ann Hopkins in Price Waterhouse, who in sex-stereotypical terms, did not act like a woman.”
However, this tactic is not always successful. In Johnston v. University of Pittsburgh, a transgender man was repeatedly sanctioned for using the men’s bathroom and locker room after being told that he was no longer permitted to use those facilities. He sued the university claiming discrimination under Title IX. The district court rejected his claim in March of last year, stating that the university’s policy refusing a transgender man access to the men’s locker room was based on the need to ensure the privacy of its students to disrobe and shower outside of the presence of members of the opposite sex. The court went on to note “[t]his justification has been repeatedly upheld by courts.”
As Harper Jean Tobin of the National Center for Transgender Equality and Professor Jennifer L. Levi of Western New England University School of Law pointed out in a 2013 law review article, however, “No court has ever held that there is any legal right to privacy that would be violated simply by permitting a transgender person to access a gender-specific facility that corresponds to his or her gender identity.”
For the past decade, there has been a movement toward recognizing transgender people as a protected class without any court having to actually say the words. This string of successes is partially due to the Obama administration’s federal agencies, which have implemented forward-thinking policies that apply to Title VII and Title IX claims. Without explicitconstitutional protection, trans rights are relegated to the whims of the legislative and executive branches. It’s as if courts recognize that transgender people are getting the short end of the equal protection stick, but have yet to follow that recognition to the next logical step.
In November of last year, a judge in New York became the first federal judge to rule that transgender people are a protected class. In Adkins v. City of New York, plaintiff Justin Adkins alleged that he had been treated differently than other Occupy Wall Street protesters who were arrested during a protest on the Brooklyn Bridge in 2011 because he is transgender. Adkins filed suit alleging equal protection violations.
The City of New York moved to dismiss the lawsuit: The City argued that transgender people are not a protected class under a 2009 case, Lopez v. City of New York, which held exactly that. Adkins’ equal protection claims, therefore, should be subject only to rational basis review, making it more likely that the lawsuit would be dismissed.
Adkins countered that the appropriate standard of review is intermediate scrutiny because discrimination against transgender people is a form of gender discrimination or, alternatively, because transgender people are a quasi-suspect class and his claims are subject to intermediate review on that basis.
The court sided with Adkins, but not on the basis—as with previous court rulings—that transgender discrimination is a form of gender discrimination. Instead, the court ruled that transgender people are a quasi-suspect class in light of the Second Circuit Court of Appeals’ decision in Windsor v. UnitedStates, the precursor to the national case eventually leading to the downfall of the Defense of Marriage Act (DOMA). In Windsor, the Second Circuit ruled that “homosexual people” were a quasi-suspect class on the basis of four factors: (1) gay people have suffered a history of persecution; (2) sexual orientation has no relation to ability to contribute to society; (3) gay people are a discernible group; and (4) gay people remain politically weakened.
In November of last year, the Department of Education issued a landmark decision for transgender rights in education, holding that an Illinois school district violated anti-discrimination laws when it did not allow a transgender girl student who participated on a girls’ sports team to change and shower in the girls’ locker room, as reported by my colleague Jessica Mason Pieklo.
And just last week, the Fourth Circuit Court of Appeals held that the lawsuit of a transgender high school student named Gavin Grimm challenging his school’s bathroom policy should move forward. The court did so after the Department of Education, under the Obama administration, released guidelines warning that school rules forcing transgender students into segregated bathrooms or bathrooms inconsistent with their gender identity would be considered a violation of Title IX. Because the federal appeals court depended on the agency guidance to make that ruling, Gavin Grimm’s lawsuit is an important step in firmly establishing statutory legal protections for transgender people while waiting for the Supreme Court to determine where they stand under the Equal Protection Clause.
Plenty of school districts across the country have followed the administration’s lead and created guidelines to ensure that transgender students can safely and peacefully use their preferred bathrooms. The federal government has adopted a policy that extends the Department of Education guidance and permits federal workers to access workplace facilities that align with their gender identity as a matter of “dignity and respect,” and to “provide a workplace that is free from discrimination whether that discrimination is based on race, color, religion, sex (including gender identity or pregnancy), national origin, disability, political affiliation, marital status, membership in an employee organization, age, sexual orientation, or other non-merit factors.”
Which brings us back to Carcaño and McGarry’s lawsuit challenging the bathroom provisions in North Carolina’s HB 2. When Windsor made its way to the Supreme Court, the Court, in an opinion authored by Anthony Kennedy, invalidated DOMA without saying whether gay people are a suspect class, and ignored the Second Circuit’s ruling that theyare a quasi-suspect class. Kennedy, as he is wont to do, framed the issue as one of “human dignity.”
It is no surprise, then, that the term “dignity” is peppered throughout Joaquin Carcaño and Payton McGarry’s complaint challenging HB 2 on equal protection grounds. Carcaño and McGarry are asking a district court in North Carolina to declare them members of a protected class entitled to heightened scrutiny. If the district court refuses, they will presumably ask the Fourth Circuit Court of Appeals. If that court also refuses, it will be up to the Supreme Court to explain how discrimination against transgender people as transgender people is no big deal and warrants only rational basis review, but discrimination against transgender people as a form of gender discrimination warrants heightened scrutiny.
In this case, there is another option for protecting LGBTQ people’s rights, though not one that may be useful for future assaults. If the Supreme Court continues to punt on whether LGBTQ people are a protected class or finds that permitting transgender people to use the appropriate restroom and locker room facilities somehow implicates a heretofore undiscovered legal right to privacy, then it is in this context that Anthony Kennedy’s dignity jurisprudence, which was also the linchpin of his majority opinion in Obergefell v. Hodges, will do quite nicely: Where is the dignity in forcing transgender people to use a bathroom that doesn’t align with their gender identity?