ENDA, Title VII, and Transgender Rights

With a new push to get a floor vote in the Senate on the Employment Non-Discrimination Act (ENDA)  which was approved in committee over the summer, it is timely to consider the potential interaction of ENDA with Title VII of the Civil Rights Act of 1964, the main federal employment discrimination statute signed into law by President Lyndon B. Johnson that went into effect in July 1965.   Title VII prohibits employment discrimination by companies with 15 or more employees because of an individual’s race or color, religion, national origin or sex.

From the earliest days after Title VII was passed, the Equal Employment Opportunity Commission (EEOC), the federal agency set up to enforce the law, and the federal courts, both ruled that the statute’s ban on discrimination because of sex did not forbid discrimination because of a person’s sexual orientation or gender identity.  Although the statute did not contain an explicit definition of sex, which would seem to leave open the possibility of a broad interpretation to encompass all discrimination based on sexuality, before the 1990s the courts uniformly gave the term a narrow definition, relying on the idea that statutes should be interpreted in light of what the legislators who enacted them intended to achieve.

In 1964, the issues of anti-gay and anti-transgender discrimination were not on the radar of members of Congress.  In fact, the version of Title VII that was approved in the House committee and sent to the floor for consideration did not even include “sex” as a prohibited ground of discrimination.  The House had investigated the issue of sex discrimination, but the bill’s sponsors feared that including sex would make the bill too controversial, so they decided to present a narrower, less inclusive bill.

Opponents of the bill concurred with this conclusion, and decided to propose an amendment on the floor of the House to add sex as a strategy to defeat the bill.  They thought that if the amendment passed, the more expansive bill would be voted down, if not in the House, then in subsequent consideration in the Senate where a Southern filibuster was widely anticipated.  As soon as Representative Howard Smith of Virginia, a conservative Democrat who opposed the bill, proposed the floor amendment, the word went out to progressives and liberals who streamed onto the House floor to support the amendment.  They were also capable of counting votes and they thought that the bill could pass both houses with sex included. There was no discussion during the debate about whether a ban on sex discrimination would protect “homosexuals” or other “sexual deviants,” as the discourse at that time would have identified us.  The amendment passed, the bill passed the House, and after one of the longest filibusters in the history of Congress, it also passed the Senate.

In light of this history the EEOC and the courts refused to entertain gay and transgender discrimination claims under Title VII, finding that the term “sex” should be construed narrowly as the drafters of Title VII presumably would have intended, since nobody at the time thought that Congress had agreed to ban discrimination against gay and transgender people.

Then in 1989 the Supreme Court ruled for the first time that the ban on sex discrimination could be more broadly interpreted.  The case, Hopkins v. Price Waterhouse, involved a straight woman who was denied a promotion to the partnership at a national accounting firm.  The evidence showed that some partners objected to her candidacy because she was not “feminine” enough to suit their image of a “lady partner,” of which the firm had few.  Her boss told her that she needed to wear makeup and jewelry, dress more femininely, and tone down her act.  She was infamous in the firm for swearing like a top sergeant and riding her subordinates really hard to get projects done, which was why clients loved her.  Justice William J. Brennan wrote that when an employer relied on gender stereotypes in evaluating an employee for promotion, that was evidence of discrimination because of sex.

After this decision, federal courts began to change their tune, interpreting Title VII and other federal statutes banning sex discrimination as providing protection for people who encounter difficulties because they fail to meet society’s stereotypes about how men and women are supposed to present themselves.  These “gender nonconformity” cases tended to arise amidst claims of sexual harassment, which was emerging as a major new area of coverage under Title VII during the 1990s, and gay and transgender employees who encountered difficulties in the workplace began to raise these claims.  After some initial hesitation, the courts and the EEOC began to rule in their favor.

Although a gay or transgender employee subjected to harassment did not necessarily have a valid discrimination claim under Title VII, according to these rulings, they might have a valid claim if they could show that the harassment was because of gender stereotyping.  By the turn of the century, this proposition was well established and some courts began to take the next step, presuming that a transgender employee’s discrimination complaint by necessity incorporates a gender stereotyping claim and is covered by Title VII.   The courts found that a desire to “change sex” was, by definition, a failure to comport with gender stereotypes.

The major breakthrough decision on this was Smith v. City of Salem, Ohio, decided by the 6th Circuit Court of Appeals in Cincinnati in 2004.  When Jimmie Smith, a city firefighter, let it be known that she was transitioning, city officials convened an emergency meeting to plot some way to get her to resign.  When she sued them, the district court dismissed her case on the ground that gender identity discrimination was not covered by Title VII.  On appeal, the 6th Circuit disagreed, finding that gender identity claims come within the theory of gender stereotyping as it had developed since the Hopkins case.   In another case from the 6th Circuit involving a transgender firefighter, the Supreme Court denied review of a similar court of appeals decision.

Since then there have been several other important breakthroughs establishing protection for transgender employees.  The federal court of appeals for the 11th Circuit in Atlanta ruled in the Brumby case, involving a public employee in Georgia, that discrimination based on gender identity by a government employer violates the 14th Amendment’s Equal Protection Clause.  Last year, the EECO ruled in the Macy case, involving an applicant for federal employment that such discrimination, if proven, violates Title VII, citing both the 6th Circuit and other federal court cases and the 11th Circuit’s constitutional case.  A few weeks ago, ruling on the merits in the Macy case, the Justice Department’s internal appellate body approved the EEOC’s reasoning and found that denial of the position to the transgender applicant violated federal law.

Which takes us back to ENDA, now pending in the Senate.  ENDA was first introduced in 1993, amidst the controversial enactment of the Don’t Ask, Don’t Tell military policy.  Prior federal gay rights bills, dating back to the mid-1970s, would have amended Title VII and other federal civil rights laws to add “sexual preference” to the list of prohibited grounds of discrimination.  Gay rights leaders in 1993 decided to narrow the focus and introduce a bill that would only deal with employment discrimination based on sexual orientation, ENDA.  They came within one vote of getting it passed in the Senate in 1996, when it was considered in tandem with the Defense of Marriage Act.  But Republicans controlled both houses of Congress for most of the following decade and the bill never got beyond a committee hearing.

In 2007, after the Democrats won control of the House, Rep. Barney Frank introduced for the first time an inclusive version of ENDA that would cover gender identity and expression as well as sexual orientation.  However, Frank concluded after canvassing his colleagues that a bill that included gender identity could not pass the House.  He decided to withdraw the inclusive version and to introduce the narrower version that had almost passed the Senate a decade earlier.  This set off a furious debate among advocates in the LGBT community, with some organizations opposing passage of this version of ENDA, committed to the view that the gay rights and transgender rights movements must be a united front to vindicate the rights of all sexual minorities to be free of employment discrimination.  But Rep. Frank stuck to his position, arguing that passage of the narrower bill would be an important symbolic step, as no bill banning sexual orientation discrimination had ever been passed by either house at that point, and the politics of the Senate made it virtually impossible to pass ENDA through that chamber anyway so the vote would only be symbolic.  The narrow bill passed.

The election of Barack Obama on a platform that included support for an inclusive version of ENDA in 2008 also brought in Democratic majorities in both houses of Congress.  Rep. Frank reintroduced the inclusive version of ENDA and committed to supporting it.  By then, of course, the 6th Circuit had ruled that gender identity discrimination was covered under Title VII, but the Supreme Court had not ruled on the merits of such a claim, and most other federal circuit courts had not issued rulings.  Also, at that time neither the EEOC nor the Justice Department had ruled in favor of coverage of such discrimination under Title VII.  It was clear that inclusion of gender identity in ENDA was important, as it would put this into statutory law rather than leaving it to interpretations that could be repudiated by later courts or administrations.

This is where things stand at present.  The Obama Administration ranked passage of ENDA below the Hate Crimes Law, repeal of Don’t Ask Don’t Tell, and elimination of the Defense of Marriage Act, on its priority list.  With those accomplished, ENDA rises to the top.  The EEOC, the Justice Department, and an increasing number of federal courts now take the view that gender identity discrimination is forbidden by Title VII under the ban on sex discrimination.  Employers need to know that they have an obligation under federal law to treat transgender job applicants and employees fairly.  But court and administrative interpretations can change over time, and inclusion of gender identity in ENDA remains important because it would place that protection into statutory law in a more permanent way that would be binding on courts and employers without question.

Furthermore, the inclusion of gender identity is much less controversial now than it was in 2007, in light of the subsequent developments. An increasing number of states and municipalities have banned gender identity discrimination in their statutes and ordinances. In some jurisdictions such bans have been in effect for more than a decade, providing information about the effect of such laws that can counter the arguments that opponents have made against passing them.  The sky doesn’t fall in, and there is no indication that public or workplace restrooms and locker rooms have become more dangerous for women in jurisdictions that have banned gender identity discrimination. This data can be helpful in persuading members of Congress (and state and local legislators) that gender identity and sexual orientation should be included together in any anti-discrimination measures under consideration.

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