The Next Step: The Department of Labor Embeds Trans in the Sex Discrimination Regulations

The LGBT community has been debating the significance of the advances in Title VII protections for trans persons since the Macy decision three years ago. I choose to be positive, and have been working to educate the community about the federal protections that exist, and the help actively being offered by the Obama administration. Others, because of pessimism or lack of faith or a lifetime of bad experiences, choose to ignore the current situation and focus on what may go wrong. They can't seem to get to "Yes."

Part of the process of cultural change requires legislative progress, and legal or executive rulings and orders, and those changes are then embedded in the rules and regulations to be followed by government bodies. Implementation takes time and is not the sexiest aspect of politics. But it reifies the broad pronouncements of the various branches of government, and lays out the precise path for all to follow in the future.

The language used in the regulations matters as well, because it informs people - beyond the dry, clinical meaning of the words - of the broader concerns the rules are meant to engage. A branch of the Department of Labor, the Office of Federal Contract Compliance (OFCCP), writes the language that then binds the federal government; in this case, the first updating of the sex discrimination rules since 1970. This is very important and significant.

The OFCCP is now proposing these new rules. The memo states:

This proposal would substantially revise the existing Sex Discrimination Guidelines, which have not been substantively updated since 1970, and replace them with regulations that align with current law and legal principles and address their application to current workplace practices and issues.
This is a long time coming, and the timing is ideal for the Department of Labor to bring the changes wrought by the Macy decision into the new common sense standards. Every step taken by the government to embed the plain language of sex discrimination can only help the trans, and, I hope, the gay community as well in the near future.

This change is particularly necessary because of the President's recent Executive Order, 13672, which amends President Johnson's 1965 Order 11246, which first included sex discrimination as a category.

The Notice explains the process at hand:

OFCCP interprets the nondiscrimination provisions of the Executive Order consistent with the principles of title VII of the Civil Rights Act of 1964 (''title VII''), which is enforced, in large part, by the Equal Employment Opportunity Commission (''EEOC''), the agency responsible for coordinating the Federal government's enforcement of all Federal statutes, Executive Orders, regulations, and policies requiring equal employment opportunity.

Here is the new language regarding types of discrimination against trans persons under the new guidelines (p.33):

(10) Denying transgender employees access to the bathrooms used by the gender with which they identify; and (11) Treating an employee or applicant for employment adversely because he or she has undergone, is undergoing, or is planning to undergo sex-reassignment surgery or other processes or procedures designed to facilitate the adoption of a sex or gender other than the individual's designated sex at birth.

This is the implementation stage of the Order sought by the LGBT community for the past six years. Why is this update necessary?

Because the existing guidelines are so outdated, they may cause some Federal contractors to incur unnecessary legal and/or management expenses to resolve confusion about possibly conflicting obligations; updating the regulations will reduce the costs that such contractors may now incur. . .

Since the Guidelines were promulgated in 1970, there have been dramatic changes in women's participation in the workforce. . . Moreover, since 1970 the Supreme Court has determined that numerous practices which were not then widely recognized as discriminatory constitute unlawful sex discrimination under title VII. . . Price Waterhouse v. Hopkins, 490 U.S. 228, 250 (1989) (finding sex discrimination on basis of sex stereotyping); Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 78 (1998) (recognizing cause of action for ''same sex'' harassment); . . .

One of the most significant barriers is the role of sex-based stereotyping. Decades of social science research have documented the extent to which sex based stereotypes about the roles of women and men and their respective capabilities in the workplace can influence decisions about hiring, training, promotions, pay raises, and other conditions of employment. As the Supreme Court recognized in 1989, an employer engages in sex discrimination if its female employees' chances of promotion depend on whether they fit their managers' preconceived notions of how women should dress and act. Research clearly demonstrates that widely held social attitudes and biases can lead to discriminatory decisions, even where there is no formal sex-based (or race based) policy or practice in place. Sex based stereotyping may have even more severe consequences for transgender, lesbian, gay, and bisexual applicants and employees, many of whom report that they have experienced discrimination in the workplace. . .

Proposed paragraph 60-20.2(b)(10) describes another example of sex-based discriminatory practices: Denying transgender employees access to the bathrooms used by the gender with which they identify. Proposed paragraph 60-20.2(b)(11) addresses discrimination against transgender individuals who have undergone, are undergoing, or plan to undergo sex-reassignment surgery or other processes or procedures designed to facilitate the adoption of a sex or gender other than the individual's designated sex at birth. Disparate treatment for this reason has been classified as both discrimination on the basis of sex-based stereotypes and as discrimination on the basis of sex. Schroer v. Billington, supra, at 304-08 (D.D.C. 2008) (concluding that an employer's decision to withdraw a job offer from a transgender applicant constituted both sex-stereotyping discrimination and sex discrimination in violation of title VII). The EEOC has recognized this principle as well. Macy v. Holder, supra. . .

In addition, paragraph (a) clarifies that discrimination based on gender identity or transgender status is also a form of sex discrimination. See OFCCP Directive 2014-02, ''Gender Identity and Sex Discrimination'' (August 19, 2014). As Directive 2014-02 explains, ''Under current Title VII case law principles, discrimination based on gender identity or transgender status . . . is discrimination based on sex.'' The Directive relied on the EEOC's decision in Macy v. Holder, 2012 WL 1435995 (EEOC April 20, 2012), in which the EEOC commissioners unanimously concluded that discrimination because a person is transgender is sex discrimination in violation of title VII, by definition, because the discriminatory act is ''related to the sex of the victim.'' 57 The EEOC cited both the text of title VII and the reasoning in Schroer v. Billington, 577 F. Supp. 2d 293 (D.D.C. 2008), for its conclusion.58 See also Memorandum from Attorney General Eric Holder to United States Attorneys and Heads of Department Components (Dec. 15, 2014) (citing EEOC's decision in Macy v. Holder as support for DOJ's position that ''[t]he most straightforward reading of Title VII is that discrimination 'because of . . . sex' includes discrimination because an employee's gender identification is as a member of a particular sex, or because the employee is transitioning, or has transitioned, to another sex''). Note that discrimination on the basis of gender identity or transgender status can arise regardless of whether a transgender individual has undergone, is undergoing, or plans to undergo sex reassignment surgery or other processes or procedures designed to facilitate the adoption of a sex or gender other than the individual's designated sex at birth.

This is the latest step towards legal equality. It is necessary, but far from sufficient. As the Notice points out, sex discrimination cases still make up 30% of the EEOC's caseload. Laws prohibiting sex discrimination do not end such discrimination; they help reduce it through education and fair warning to employers not to discriminate in the first place, and give employees the tools to fight when they become targets. The work must go on, but it's a huge step for the trans community to know that the feds increasingly have our backs.