ENDA 2013: Ending Transgender Workplace Discrimination
Submitted for the Sally Boland Essay Prize
Originally written for:
PO 3350 Women in World Politics
Dr. Sheryl Shirley
Pervasive social stigmas exclude gender minorities from participating in some of the most fundamental systems of society, including the workplace. Compared to their gender conforming counterparts, transgender workers are at heightened risk of discrimination in the areas of hiring, dismissal, reasonable accommodation, and harassment (ACLU 2007; Dispenza, Watson, and Chung 2012). Regardless of these unwelcoming odds, thirty-three US states offer no explicit legal protections for transgender employees, including New Hampshire – the only New England state without such protections. In states which do not protect gender identity and expression, transgender employees must find alternative means by which to file claims of discrimination, most often involving disability or sex discrimination. By examining policies and court cases, this paper aims to determine how insufficient anti-discrimination policies, and the resulting strategies of case law, can perpetuate a gendered hierarchy of power and the stigmatization of gender minorities. It therefore advocates for the passage of the Employment Non-Discrimination Act (ENDA).
ENDA is US Congressional legislation which would prohibit discrimination based on sexual orientation and gender identity in hiring and employment by employers with fifteen employees or more (ENDA₁ 2013). Since its inception in 1994, ENDA has been introduced in every Congress except the 109th, failing to pass both houses each time. In this 113th Congress, ENDA’s text, Senate Bill 815, includes gender identity among its protections, the first time since 2007. Were this bill to pass through both houses of Congress and be signed into law, the victory for gender equality in the workplace would be monumental. Not only would federal legislation provide incontestable protection for transgender employees, but similar protections enacted internationally give hope that policy may help raise awareness and reduce gender-based employment discrimination.
The Nature of Anti-Trans Discrimination through Jane Doe
The origins and outcomes of discrimination against transgender employees can best be exemplified by examining the case of Jane Doe v. Boeing Company. Jane Doe was a Boeing engineer from 1975 to 1985. Though she worked in various departments of the corporation, she spent the most time (until her dismissal in 1985) at Boeing Computer Services, for which she received frequent praise and recognition for her engineering talents. In her last year of employment with Boeing, she notified the company that she would be preparing to transition from male to female. Part of the process prescribed by her counselor to prepare for surgery required her to dress in feminine attire for a year to ensure that she was comfortable living as a woman. Although there was no policy mandating gender-conforming dress code, corporate leaders bid her supervisor, Barry Noel, to “formulate a company position on it” (Jane Doe 1993). Doe was then requested to dress in an appearance that was either male or gender neutral. Specifically, dresses, skirts, and frilly blouses were prohibited. In an effort to adhere to both her company’s newly fabricated dress policy and her counselor’s surgical preparation requirement, Doe’s professional dress included slacks, a sweater, a necklace, earrings, makeup, and nail polish. Claiming that she was in violation of company standards by not avoiding feminine attire, the Boeing Company fired her (Jane Doe 1993).
Doe was not the first transsexual employee working for the Boeing Company to ask for accommodations, but she was the first to file suit against them (Myers 2010). Upon researching company policy, she discovered that none had been written or published by the Boeing Company that were applicable to her case. This did not, however, give her an advantage. Instead, the absence of dress code policy only helped to codify the gender binary norms of corporate culture. Policy leaders stated that there was an “unwritten position that people were to present themselves according to their biological gender at [the] most recent date of hire” (Jane Doe 1993). This strengthens the idea that gender is fixed and is determined by biological sex. This understanding by corporations leaves no room for, and discriminates against, gender fluidity. Even in their suggestion that Doe dress in unisex apparel, their exclusion of exclusively feminine clothes – skirts, dresses, and frilly blouses – implies that “gender neutral” is equivalent to “male.” In this proposal, the Boeing Company participated in even more sex and gender discrimination.
The field of engineering has been a traditionally male-dominated environment, and the Boeing Company was no exception, with 6.5% of its engineers and only a handful of its executives being women in 1989 (Myers, 2010). Because Doe identified as female, and thus outside of the prevailing identity of this corporation, she was labeled by corporate leaders as an “other.” Not only was she subject to the discrimination and discouragement faced by women in a corporate “man’s territory,” but she was even further oppressed because of her renunciation of the male privilege; one co-worker was baffled that she was “rejecting his male birthright” (Myers 2010). When Doe was accused of using the women’s restroom, it was men who filed grievance, not the women (Myers 2010). This testifies to the need for women’s presence in the workplace. As well as the tendency of women to be more accepting of those who fall out of the norm,male-run hierarchal agencies leave little room for gender and sex equality.
When the newly invented company understanding of dress code was enforced upon Doe, she wanted to seek out the heads of policymaking, but she did not know who they were and justifiably felt isolated from her superiors. She also asked to meet with Boeing leaders and two Boeing medical staff, but she never met with anyone above her supervisors or human resources (Jane Doe 1993). Corporate hierarchy alienates its workers and fails to accommodate those outside of the norm. Women in executive positions tend to engage in transformational leadership, which involves a more inclusive relationship between leaders and subordinates (Burns 1978). With more gender diversity among employees and corporate executives, there would be more room to accommodate gender and sex minorities in the workplace.
While anti-discrimination policy is not a solution for the underlying motivators of prejudice, such as male-domination and hierarchal chains of command, it would provide the groundwork for gender and sex minorities to file claims of employment discrimination. In the case of Jane Doe, the absence of gender or sex related policy led her to sue the Boeing Company on the basis of discrimination against disability; Doe cited the invented psychological condition of gender dysphoria, which, in the 1970’s, was defined as a “range of crossgender identifications that might ultimately lead to surgery” (Meyerowitz 2002). In New Hampshire, where transgender workers are not specifically protected by law, similar claims have been made on the basis of disability discrimination; one such case was dismissed by the NH Commission for Human Rights because the Commission did not interpret gender dysphoria to be a valid disability protected under the NH Law Against Discrimination (NH 2002). Equating gender expression with disability perpetuates the stigma that transgender identities are sick and pathological. Furthermore, the absence of anti-discrimination policy reinforces the gender binary system and excludes those outside its borders.
Small (But Questionable) Victories
In 2004, Jimmie Smith, a male-to-female transsexual firefighter, won a suit against the City of Salem, Ohio after city officials devised a plan to fire her upon learning of her plan to pursue a sex reassignment surgery. The premise of her prosecution was that her employers were participating in sex discrimination, covered under Title VII of the 1964 Civil Rights Act. While neither gender identity, gender expression, nor transsexualism is embraced by this legislation, the federal Sixth Circuit Court of Appeals ruled that sex includes “gender non-conforming behavior and appearance” (Smith 2004). This was possible because sex discrimination has come to mean “discrimination on the basis of sex stereotypes” (Kirkland, 2006), which would oblige females to flaunt their femininity and males to parade their masculinity. The decision of the court even resolved a transgender policy issue at the University of Michigan when the school’s provost sent a campus-wide email that asserted the University’s anti-discrimination policy encompassed transgender students on the basis that sex discrimination included discrimination against gender non-conforming behavior (Myerowitz 2002).
The expansion of sex discrimination to include transgender identities is interesting because most trans-friendly policies adopt trans-specific clauses to include gender identity, expression, and transsesxualism. While the decisions of the Sixth Circuit and the University of Michigan seem to be strides towards trans-equality, it is important to consider whether or not they are adequate. When sex discrimination is expanded, it does not expressly recognize transgender identities. The term “sex” is left to interpretation; because there are so many transgender identities that are based on personal identity rather than anything biological, it is unlikely that all will fit in under the category of sex. Without trans-specific anti-discrimination policy, it is doubtful that all transgender individuals will be protected by law.
Also, sex discrimination under Title VII specifically protects gender non-conforming individuals. This means that if, for example, a transgender woman filed for discrimination and won, she would be protected as a gender non-conforming man – her identity as a woman is, in this case, neither confirmed nor respected by law. Winning the case should not be the only goal of the prosecution; it is equally as important to respect and enforce the validity of employees’ gender identities.
The Need for ENDA 2013
It is for this reason that passing the Employment Non-Discrimination Act is critical for the security of transgender employees. Because the current text includes gender identity, this legislation would give transgender persons who have been fired from their jobs or treated unfairly on the basis of gender discrimination undeniable text to refer to in their claims. Also, though it would not resolve the causes of prejudice, trans-inclusive policy may hopefully raise awareness towards transgender issues and prevent further discrimination in the workplace.
In New Hampshire, Republican US Senator Kelly Ayotte, who had neither confirmed nor denied her support of the bill, was considered a critical and potential sixtieth vote for ENDA’s passage through the Senate. Thus, an effort sponsored by the American Civil Liberties Union (ACLU) and Human Rights Campaign (HRC), among others, was launched in the state to encourage Senator Ayotte’s supporting vote. The project was titled Americans for Workplace Opportunity and organized volunteers to educate New Hampshire constituents about ENDA while encouraging them to call Senator Ayotte’s office on behalf of the bill. At the first phone bank I attended, the list of constituents from which the volunteers were calling comprised of supporters of the HRC, therefore their pledge to call Senator Ayotte’s office was easy to achieve. Subsequent phone banks yielded varied results, as our lists were targeted constituents whose support was more questionable: some lists targeted independent voters or Republican women. I did notice that, across the board, women were more likely not only to support the issue, but also to pledge to call. As the bill – and LGBT issues in general – have garnered mostly Democratic support and little from the conservative end, the cooperation of Republican women showed an atypical crossing of party lines. This is testament to theories that women tend to take a more liberal stance on social issues and that women are more likely to encourage bipartisan cooperation (Burns 1978). Gender diversity among constituents who are directly involved with their legislators would facilitate more legislative support for socially progressive movements such as trans-equality in the workplace.
ENDA was passed in the Senate on November 7th, 2013 with 64 supporting votes. Nineteen out of twenty women voted in favor the bill, with three of four Republican women voting yes; one of those Republican women included Senator Ayotte (ENDA₂, 2013). If the numbers of Republican women and men who supported ENDA are compared, it is evident that women in legislative office are also more likely to cross party lines, with 75% of Republican women and 15.5% of Republican men voting yes to ENDA’s passage.
International Examples of Success
Should ENDA pass through the US House of Representatives and be enacted into federal law, it is hopeful that transgender employees will eventually experience less discrimination in the workplace. In 1996, the European Court of Justice (ECJ) passed protections from employment discriminations in cases concerning “gender reassignment” (HRC 2008). Formalizing this decision, the UK passed its 1999 Sex Discrimination (Gender Reassignment) Regulations (HRC 2008). Two UK studies can be compared to examine the frequency of transgender workplace discrimination before the ECJ decision and after the UK’s non-discrimination law, revealing that transgender employees fired from their jobs because of anti-transgender sentiment dropped from 37% to 16% (Whittle 2002). If international anti-discrimination policies are any indication of ENDA’s potential, transgender employees in the US should enjoy more tolerance and acceptance in the workplace if employment non-discrimination is passed into law.
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Myers, P. R. 2010. “Jane Doe v. Boeing Company: Transsexuality and Compulsory Gendering in Corporate Capitalism.”Feminist Studies,36(3):493-517. NH Code Admin. R. Ann. [Hum.] 401.03 (2002) (citing Jane Doe v. Electro-Craft Corp., No. 87-E- 132 (Rockingham Super. Ct. Apr. 8, 1988)).
Smith v. City of Salem. 2004. August 2004. 378 F.3d 566 (6th Cir.).
Whittle, S. 2002. “Employment Discrimination and Transsexual People.” The School of Law, Manchester Metropolitan University, Manchester, UK. (Retrieved from http://www.pfc.org.uk/files/Employment_Discrimination_and_Transsexual_People.pdf on September 30th 2013.)