The Politico-Legal Transgender Tipping Point

The use of terms in the brief such as "straightforward" and "plain meaning" are those we've been pushing for years, and it's gratifying to see them spoken by the government.
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"I am gratified that Saks reversed its decision to advocate against the rights of transgender employees under the Civil Rights Act. We look forward to the opportunity to demonstrate our case at trial." -- attorney Jillian Weiss

This week has seen what I believe will be another tipping point, this time politico-legal, in the campaign for full trans freedom and equality.

I've recently written about trans employment legal powerhouse, Jillian Weiss, and most recently about her representation of Leyth O. Jamal in the federal court case, Jamal v. Saks. The striking action in this bit of legal theatre happened before the New Year when Saks filed a Motion to Dismiss, claiming that "it is well settled" that Title VII of the 1964 Civil Rights Act does not cover trans persons.

Until now, such legal maneuvering would have occurred almost completely behind closed doors, with the plaintiff and her underpaid attorneys, or, if she was lucky, one of the movements' great legal impact organizations, doing the unnoticed grunt work on her behalf. Occasionally the legal team would address a local LGBT group to inform them of the work, but little was discussed and there was minimal press coverage. For the most part the gay community paid little attention to these trans cases. This was the case with the major victories of Salem, Schroer, and Glenn, and even with the huge breakthrough of the Macy case, attention was immediate but extremely short-lived, with very few exceptions.

No longer. Following that filing by Saks of its Motion to Dismiss, the media attention grew and grew. Just google Jamal v. Saks to get a sense of the breadth of coverage. After claiming that its HR handbook listing of employment protections, including gender identity, was not legally binding, the Human Rights Campaign (HRC), which had given Saks a score of 90/100 this past year, withdrew Saks completely from the Corporate Equality Index (CEI). And, most importantly, on the heels of that media wave came the announcement of an investigation by New York Attorney general, Eric Schneiderman, and amicus briefs from the Human Rights Campaign (HRC) and the National Center for Lesbian Rights (NCLR), as well as amici from the Equal Employment Opportunity Commission (EEOC) and the United States Department of Justice (DoJ).

I find this stunning. This is the first time the Department of Justice has clearly stated that Title VII covers transgender persons directly, and not just via discrimination based on sex stereotypes. The use of terms in the brief such as "straightforward" and "plain meaning" are those we've been pushing for years, and it's gratifying to see them spoken by the government. Commissioner Feldblum of the EEOC, the architect of the Macy decision, tweeted:

Chai Feldblum

Saks withdrew its Motion to Dismiss today in a case alleging transgender discrimination by Leyth Jamal. Saks will continue to defend its actions on the merits (assuming there isn't a settlement), but it won't pursue its argument that discrimination on the basis of transgender status is not covered under Title VII as a form of sex discrimination. DOJ filed a brief arguing for such coverage, as did the EEOC. DOJ's brief is fantastic and relies on (among other things) EEOC's 2012 decision in Macy v. DOJ. Ever since EEOC ruled in the Macy decision that discrimination on the basis of transgender status is covered under Title VII, Jillian Weiss has been a tireless advocate for bringing cases on behalf of transgender individuals under that law. Today's news is good for her & her client. Read Chris Geidner's story & be sure to click on the links.

The speed and the power of this response have left me breathless. As a disclaimer, I will admit that nothing is settled until there is a settlement or the judge rules, and one can never take anything for granted in the court system, particularly the one in Texas in the Fifth Circuit, but just the fact that Saks saw fit to withdraw its Motion to Dismiss due to the overwhelming support for Ms. Jamal's claim from the government and the LGBT community, and the positive coverage of the complaint in the media, is testimony to the cultural change in this country.

My friend, Greg Nevins of Lambda Legal, enjoys relating his experience listening to oral arguments in the 11th Circuit Court of Appeals in Atlanta when he was arguing the Glenn v. Brumby case. When opposing counsel asked, incredulously, one of the judges of the panel, William Pryor, thought by many to be the most anti-gay judge in the federal court system, if his words meant that transgender persons were now covered under the 14th Amendment, and the Judge answered, "Yes, I believe I do mean that," Greg fell out of his chair. A week later the decision was published and it turned out the Court had meant exactly that. Five months later came the Macy decision from the EEOC, and the world changed for the trans community.

This turn of events may not turn out for the best. Given the weakness in Saks' case, had they held to their belief that Title VII does not apply to trans persons, and Jillian then went on to win in court and on appeal, the result would have further solidified the ground upon which we stand. If that doesn't happen, who knows what the next case will be that goes all the way to a federal court of appeals? We could be subject to a loss in the same Circuit due to the mishandled case of Eure v. Sage Corporation, which didn't even brief the court on the Macy decision.

But the most important takeaway for me is the rapid cultural change that caused Saks to back off. Their attorneys, like all attorneys, don't like to lose, and given the array of adversaries to their untenuous position, we may very well have begun to work in a new world where businesses are learning that discrimination is wrong, even against a class they thought was immune from protections, and that discretion will now lead them to treating all with fairness in the first place. Such is the dialectic of the legal and the cultural -- win a major legal case, which drives employment attorneys to warn their employers to revise their HR manuals, which cuts down on discrimination in the first place. And when a corporation's HR policy is blatantly ignored, both practically and legally, and that company then gets spanked in court and the court of public opinion, that experience then becomes an object lesson that further limits discrimination as more attorneys take notice and act to save their employers embarrassment and money. We are in an accelerating virtuous circle, and it feels great.

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