The recent introduction of the Equality Act in both the U.S. House and Senate to protect lesbian, gay, bisexual, and transgender people from discrimination is long overdue. It is so long overdue that it may be more notable for what its absence says about our society than what its presence will do for victims of discrimination. Many federal agencies and courts have already ruled that sex discrimination includes discrimination against LGBT people. What’s missing is our political will as a country to acknowledge that such discrimination is wrong and that our civil rights laws should explicitly say so.
As an attorney whose practice focuses primarily on winning lawsuits for transgender people experiencing job discrimination around the country, I’m heartened by this action by Democratic leaders in both chambers, though the chances of passage in a Republican-controlled Congress are slim. The move nevertheless sends a strong message: Even in a post–marriage equality environment, LGBT Americans are still extremely vulnerable to being fired, kicked out of their homes, barred from accessing public places, and a host of other discriminatory ills simply for living their lives authentically. Legislation that explicitly prohibits this will make it easier to provide legal protection nationwide.
For me, transgender employment discrimination is personal. In the late 1990s I was fired from a New York City law firm after I incautiously spoke about my hope to live openly as my true self, a transgender woman. After being unable to find work as an attorney, I left the field and worked as a secretary. I understand clearly the stark reality transgender people face in finding and keeping work. Transgender people still encounter huge roadblocks to job security. Unemployment impacts us at twice the rate of the overall population and we are nearly four times more likely to make less than $10,000 per year, and it is far worse for transgender people of color.
My journey, backstopped with a high degree of education and privilege, eventually took me down the path of academia, which led to a tenured professorship in law at Ramapo College of New Jersey and the opportunity to work on transgender workplace issues. I have never forgotten what it felt like to be completely ostracized, which my transgender brothers and sisters are facing every day as they try to carve out a life for themselves, earn a living, and provide for their loved ones.
It is important to emphasize that although a federal law is necessary, LGBT people are protected from discrimination right now, no matter where they live in the country. Many believe incorrectly that they have no recourse. In my law practice, we have taken on a major Houston department store on behalf of a transgender woman who claimed harassment and termination (amicably settled) and sued on behalf of a Lakeland, Fla., woman who alleged termination by her eye clinic for being transgender ($150,000 settlement). This is just a sampling of our growing caseload. Most recently, an Oklahoma federal court granted us the right to move forward with a hostile work environment claim on behalf of a transgender professor at Southeastern Oklahoma State University whom we allege was fired over her gender identity. These cases, in some of the most conservative areas of the country, demonstrate that LGBT people have recourse under current law.
The importance of a federal statute, however, is that victims have something clear and explicit to point to in black-and-white. Right now they have to ask their employers to thumb through hundreds of pages of old court opinions and guess at what a court will do. Because of this, it can also be very difficult to find a lawyer to take such cases on contingency.
While the names of the victims vary as well as the companies for which they work, the scenarios often follow a similar pattern: verbal harassment on the job, intimidation by supervisors, and an eventual firing for reasons ostensibly based on job performance but having everything to do with being transgender.
With the U.S. Equal Employment Opportunity Commission recently making it illegal to fire transgender people for who they are (and just recently issuing a similar ruling for lesbian, gay, and bisexual employees), more and more transgender people who have fallen victim to employment bias have realized the recourse available to them and begun seeking us out. Given the continued lack of understanding for the everyday lived experiences of transgender people, I don’t see my practice slowing down anytime soon. In a perfect world, I would go out of business one day, when transgender employees have finally gained the full respect and dignity they deserve in the workplace.
In the meantime, I do hope Congress will do the right thing and enact the comprehensive protections for all LGBT Americans that are contained in the Equality Act. With or without the legislation, however, I have no doubt that my practice will be thriving for some time to come.