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Too Little, Too Late on Gender Identity Protections? 

Too Little, Too Late on Gender Identity Protections? 


El'Jai Devoureau's job at a New Jersey drug treatment center was taken away as quickly as it was offered. It wasn't glamorous: In June of 2010 he was hired to ensure that male patients giving their urine samples for testing weren't cheating. The economy is tough, and a job is a job.

On his second day of work at Urban Treatment Associates in Camden, his supervisor found out that Devoureau, now 39, was born female. The supervisor asked a question he refused to answer: whether as a transgender man he had undergone gender-confirming surgical procedures. And despite a lack of evidence that he was not performing his job well, Devoureau was fired on the spot. But as far as state and federal government agencies are concerned, there is no confusion about his gender. Devoureau's birth certificate now categorizes him as male, what he has known his whole life to be true. The Social Security Administration concurs. So does New Jersey's Motor Vehicle Commission. Devoureau's voice is unmistakably masculine, partly the result of hormone therapy he began in 2006. As his legal complaint avers, he is "legally, medically, and socially male."

"It's wrong the way that I was treated, and I want them to know that they can't do what they did," Devoureau says. "You should be judged not on who you are, but on how you do the job. They can fight it, but I believe the law is on my side."

The law indeed may be on the side of Devoureau, who filed suit against Urban Treatment in April, one of several current lawsuits in the nation on gender identity discrimination in the workplace. In 2006 the New Jersey legislature passed a law prohibiting discrimination in employment on the basis of sexual orientation and gender identity; it is one of 15 states that covers the entire LGBT population on the matter (so does the District of Columbia).

Thirty-five states have no such protections, however, and with the Employment Non-Discrimination Act languishing in Congress, 17 years after it was introduced, a federal law to protect workers from egregious harassment and abuse is far from a reality. "This is the first case, to our knowledge, of a case where someone has been fired for being insufficiently male," says Michael Silverman, executive director of the Transgender Legal Defense and Education Fund, which co-represents Devoureau in the suit. "We agree that this is a sex-specific job, but every government agency that would look at this would come to the same conclusion: El'Jai is male."

Recent research on transgender employment discrimination confirms what experts have long suspected regarding its pervasiveness. Nearly half of transgender respondents in a 2011 study by the Williams Institute at the University of California, Los Angeles, reported that they had been fired or denied a job promotion because of their gender identity--discrimination rates far higher than reported by other segments of the LGBT population. The long-term unemployment rate among transgender individuals is both staggering and given insufficient attention by the community, National Center for Transgender Equality Mara Kiesling noted last week. Perhaps the White House's push for a $447 billion jobs creation plan is a good place to pick up the conversation. "Getting fired isn't our biggest problem; getting fired and staying unemployed or underemployed is deadly," Kiesling wrote.

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."

In its legal settlement with Yang, the TSA agreed to require approximately 100 managers at LAX to attend sensitivity training on transgender issues as well as to pay Yang five months' back wages and a five-figure settlement for pain and suffering. "We need to be aware of transgender issues not only for our coworkers but for passengers," a TSA spokesman at LAX says of Yang's settlement. Whether such diversity training will affect how TSA officials treat future transgender employees remains to be seen.

A federal law against workplace discrimination based on sexual orientation and gender identity would be a welcome step forward, although it has little or no chance of passage under the Republican-majority House of Representatives. A Democratic-controlled Congress even punted in the last session, with leaders continuing to assert that LGBT Americans wanted "don't ask, don't tell" repeal passed first. For many transgender people, who can't serve in the military regardless of DADT's repeal, that argument is particularly offensive.

"The more that 'don't ask, don't tell' was talked about and acted upon, the less they wanted to be concerned about us," Monica Helms, cofounder of the Transgender American Veterans Association, said in January. "Now I see all this celebration. Everyone is patting each other on the back, and we're saying, 'Hello? Hello? What about us?' "

Particularly striking is the fact that though employment rights for LGBT people now draw support among a majority of Americans, most Americans think such protections are already in place. A full 73% of likely voters in the 2012 election support laws protecting gay, lesbian, bisexual, and transgender workers against on-the-job discrimination. Nine out of 10 respondents in a Center for American Progress poll last spring believed that Congress has already passed such legislation.

"A confusing patchwork of state and local laws currently offer some protections to gay and transgender workers," reports Jeff Krehely, director of the center's LGBT Research and Communications Project. "Many of these policies only apply to gay people, while some are inclusive of transgender employees. Even with these policies, however, a federal law such as ENDA is needed to provide full and adequate protections to gay and transgender Americans."

If there's any bright spot for transgender workers, it's that leading corporations are ahead of Washington on the issue. In its 2012 Corporate Equality Index, the Human Rights Campaign updated its criteria to require that companies offer a transgender-inclusive health plan to its workers in order to qualify for a 100% rating. Fortune 500 companies including Wells Fargo, Coca-Cola, Walt Disney Co., and American Airlines are among the more progressive on the issue. "This will be our first year including health benefits for gender reassignment procedures," says Lauri Curtis, American Airlines' vice president for diversity, leadership, and engagement. "Despite rising medical costs, we work hard to ensure we offer competitive medical plans for all employees. ... We took the time to review the various medical necessity guidelines and implemented those guidelines that were most comprehensive to ensure consistency for our employees and retirees using this benefit."
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