Too Little, Too Late on Gender Identity Protections?
September 13 2011 7:00 AM ET
Discouraging media reports of firings do tell a portion of the story. Rachel Tudor, an associate professor at Southeastern Oklahoma State University, was denied tenure earlier this year and dismissed, allegedly because her gender identity “offends [the] Baptist beliefs” of the school’s vice president of academic affairs. Vandy Beth Glenn, a former Navy lieutenant and legislative editor for the Georgia General Assembly, was terminated after she announced her plans to transition. Ashley Yang, a Transportation Security Administration employee at Los Angeles International Airport who was forced to don a short wig and screen male passengers, was fired after colleagues observed her using the women’s restroom. These are just the cases that make the news; the Transgender Law Center reports that it handles some 1,500 inquiries regarding job discrimination each year.
Tudor’s contract with Southeastern Oklahoma State ended May 31. She has reportedly filed complaints with the U.S. Equal Employment Opportunity Commission and the Oklahoma Human Rights Commission and awaits response, though the state lacks laws protecting LGBT people from job discrimination. Glenn told members of the House Committee on Education and Labor in a 2009 ENDA hearing, “I’m not seeking any money in my lawsuit…. I’m asking for just one thing: to be given my job back.” Her suit is now before the U.S. Court of Appeals for the 11th Circuit. Last year a lower court ordered that Glenn be reinstated into her position and that she receive full pay in lieu of returning to work pending appeal.
Yang, 29, will not be returning to her TSA job at LAX, however. Like Glenn, she sued her employer on the basis of sex discrimination under Title VII of the Civil Rights Act—a legal strategy that some trans employees have successfully pursued in federal discrimination cases. (the Justice Department broke new ground this year by announcing that courts should treat classifications based on sexual orientation or gender identity with heightened scrutiny, in part because of historic discrimination faced by LGBT people). Like Devoureau, Yang had been hired based on her confirmed gender. Her California driver’s license categorizes her as female. But she had not undergone surgical transition procedures, and therefore managers required her to work as a male and work with male passengers, should she be a security screener.
“Ashley felt like she had to choose between her gender and her job,” says Kristina Wertz, legal director for the Transgender Law Center, which represented Yang. “It’s critical that employers allow transgender people to work within a job assignment that’s appropriate for their gender identity. Unfortunately, though, we have heard from other TSA workers, both during and after [Yang’s case], of discrimination. What I can say is that TSA is going to be a better agency to make sure that this never happens again.”
“Working for the TSA was my way of contributing to society,” Yang said in August. “I valued talking with passengers and was inspired by helping to protect people and making sure they are safe.”
Yang was not protected from repeated harassment in the federal agency job. Instead, according to her legal complaint, she was the butt of jokes. “A little lower there, darling,” one passenger said as Yang conducted a body search. “Pat down lower on my back,” said another. A zinger from an equally boorish subject: “I haven’t gotten this much attention from a girl in a while.”