By Leela Ginelle, PQ Monthly
Over the past ten years, quietly, trans people have been securing Federal rights in employment, education, health care and housing. Some of these have come in the form of guidance from the Obama administration, and some from favorable court rulings; taken together they’ve created a landscape where discrimination on the basis of gender identity has gone, in a short period, from unquestioned to illegal.
Because of Congress’s conservative tenor and partisan gridlock, LGBTQ Civil Rights legislation has long seemed unattainable. For that reason, gains in transgender rights have arrived bit by bit through the interpretations of existing Civil Rights laws.
In employment, this has come through Title VII of the Civil Rights Act of 1964, which makes it illegal to discriminate “because of sex.” A series of favorable rulings, beginning with Smith v. City of Salem (2004) and culminating with Glenn v. Brumby (2011) have resulted in what the justices in the Glenn ruling described as a “near total uniformity” of judicial belief that Title VII forbids discrimination based on transgender identity.
The landmark case in this area is the 2012’s Macy v. Holder, in which the Equal Employment Opportunity Commission (EEOC) ruled unequivocally that discrimination against trans people in the area of employment violates Federal law, meaning anyone facing such treatment can bring their case to the EEOC for redress. This is vital as, currently, only 19 states have employment non-discrimination laws protecting trans people.
In August 2014, the Obama administration reinforced this policy with an Executive Order barring discrimination on the basis of gender identity on the part of businesses contracting with the Federal government, stating, “Our workforce and our entire economy are strongest when we embrace diversity to its fullest, and that means opening doors of opportunity to everyone and recognizing that the American Dream excludes no one.” To aid businesses the Department of Labor created an extensive resource page concerning trans identities and Civil Rights protections.
In schools, it’s Title IX of the U.S. Education Amendments of 1972 that’s been interpreted as protecting trans students’ rights. The Department of Education first presented this non-discrimination protection in a “Dear Colleague” letter to schools in 2010, and has clarified it several times since, issuing its strongest language in 2014, writing that schools “must treat transgender students consistent with their gender identity in all aspects of the planning, implementation, enrollment, operation, and evaluation of single-sex classes.”
The Departments of Education and Justice have interceded in multiple cases in which trans students have filed discrimination suits against school districts. In these cases, the federal agencies have convinced districts to work with consultants to acquire competency in affirming their trans students’ identities and adopt thorough anti-discrimination policies ensuring such behavior would not repeat.
Though the laws interpreted in these cases do not explicitly bar discrimination against trans people, Transgender Law Center Staff Attorney Matt Wood says he expects the protections they now offer to remain in place, even under an administration less favorable to trans rights. “It would be surprising if agency decisions were rolled back without a reason,” Wood says. “It would be unpopular to take away rights that are existing simply out of malice.”
There is no current housing or accommodation law at the Federal level protecting trans people from discrimination. The Department of Housing and Urban Development (HUD), however, has issued guidance around trans people protecting them is spaces associated with the agency. In March of 2012, for instance, they published rules guaranteeing equal access to HUD housing regardless of sexual orientation or gender identity.
In February of this year the department issued guidance about homeless shelters, barring that facilities that receive HUD funding and lenders working with the FHA’s mortgage insurance program from “inquiring about (an individual’s) sexual orientation or gender identity to determine eligibility for HUD-assisted or HUD-insured housing.” This is vital, as trans people, due to societal discrimination, experience homelessness at greater rates than cis people, and have a well-documented history of encountering discrimination at shelters.
Trans people recently won a huge victory when a judge in Minnesota ruled that the Affordable Care Act (ACA), also known as Obamacare, bars health care providers from discriminating against patients on the basis of gender identity. In a case brought by a trans man who was misgendered and ridiculed during an emergency room visit, the defendants attempted to have the suit thrown out, arguing the law did not protect trans identities. Reviewing the ACA, however, the court ruled it does, ensuring trans rights in health care settings.
Thanks to the hard work of advocates and professionals, and the bravery of trans people challenging discrimination, gender identity rights are protected now in many areas of public life, a state Wood predicts will persist. “Barring some extraordinary Supreme Court case,” he says, “I expect these protections to continue.”