Judge: Discrimination Against Transgender Americans Violates Civil Rights Act
Friday September 19, 2008
Earlier today, U.S. District Court Judge James Robertson handed down a ruling (PDF format) that represents a significant, if tentative, step forward for the rights of transgender Americans:
But don't take this ruling to indicate that we don't need an ENDA--the ruling doesn't address sexual orientation, many judges will look for any excuse they can find to not include LGBTs under Title VII's sex discrimination clause, and until the U.S. Supreme Court upholds Robertson's precedent (which they may not be willing to do), it isn't binding nationally.
Still, there's certainly enough here to at least put the fear of lawsuits into employers who cheerfully violate transgender employees' civil rights on the assumption that federal courts will not enforce the Civil Rights Act in such cases. And since fear of lawsuits seems to be a central motive in the crafting of business policy statements, don't be surprised if more corporate nondiscrimination policies are expanded to include gender identity over the coming months.
Related: 5 Questions About Transgender Rights
In refusing to hire Diane Schroer because her appearance and background did not comport with the decisionmaker?s sex stereotypes about how men and women should act and appear, and in response to Schroer?s decision to transition, legally, culturally, and physically, from male to female, the Library of Congress violated Title VII?s prohibition on sex discrimination.Title VII's prohibitions on sex discrimination logically should include both gender identity and sexual orientation. After all, the original purpose of sex discrimination was all about gender roles--prohibiting women from violating gender norms by serving in traditionally male occupations--and laws targeting transgender Americans are no less obviously based on sex or gender.
But don't take this ruling to indicate that we don't need an ENDA--the ruling doesn't address sexual orientation, many judges will look for any excuse they can find to not include LGBTs under Title VII's sex discrimination clause, and until the U.S. Supreme Court upholds Robertson's precedent (which they may not be willing to do), it isn't binding nationally.
Still, there's certainly enough here to at least put the fear of lawsuits into employers who cheerfully violate transgender employees' civil rights on the assumption that federal courts will not enforce the Civil Rights Act in such cases. And since fear of lawsuits seems to be a central motive in the crafting of business policy statements, don't be surprised if more corporate nondiscrimination policies are expanded to include gender identity over the coming months.
Related: 5 Questions About Transgender Rights
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(P.S.: Most news reports seem to incorrectly give the judge’s name as Robinson rather than Robertson.)