Discrimination and the Transgender Population

• Author: Mitchell Dylan Sellers
• Date: 01 January 2014
• DOI: 10.1177/0095399712451894
• Published date: 01 January 2014
• Subject Matter: Articles

451894AAS46110.1177/00953997124518
94Administration & Society XX(X)Sellers
© 2012 SAGE Publications
Article
Administration & Society
2014, Vol. 46(1) 70 –86
Discrimination and
© The Author(s) 2012
DOI: 10.1177/0095399712451894
the Transgender
aas.sagepub.com
Population: Analysis of
the Functionality of Local
Government Policies That
Protect Gender Identity
Mitchell Dylan Sellers1
Abstract
Transgender-inclusive nondiscrimination policies create a quagmire for
human resources to successfully implement. There is a dearth of knowledge
about the extent, features, and aptitude of policies to prevent discrimination
against transgender employees. This study analyzes all 154 localities that
prohibit discrimination against gender identity or expression in employ-
ment, as of July 2011, to explore their scope, the capability of implementa-
tion agencies, and safeguards provided to employees. The results indicate
that the extent of the nondiscrimination policies is broad and potentially
benefit most citizens; however, insufficient power is delegated to imple-
menting agencies and safeguards are not the norm.
Keywords
human resources, discrimination, transgender, employment, LGBT
1University of Florida, Gainesville, USA
Corresponding Author:
Mitchell Dylan Sellers, University of Florida, 234 Anderson Hall, P.O. Box 117325, Gainesville,
FL 32611, USA.
Email: msellers@ufl.edu

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Sellers
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Introduction
Johnny Cash sums up the trans experience best: “Life ain’t easy for a boy
named Sue.” Transgender individuals confront a multitude of physical and
legal barriers daily. Bathroom access is a commonly cited physical barrier,
but in society transgender people are judged on fundamental characteristics,
such as voice, height, muscle definition, or surgery status. The most obvious
legal problems stem from name and gender markers outing individuals on a
daily basis. Driver’s licenses, credit cards, and identification are frequently
needed, especially with technological innovations and stores trying to “get
to know” customers. “Passing” is now a blessing and curse. Name and gen-
der changes, at a minimum, require filing fees, background checks, and a
moderate understanding of the legal system, assuming the judge is willing
to grant the order. A joint study by the National Center for Transgender
Equality and the National Gay and Lesbian Task Force (2009) found that
97% of the 6,456 transgender respondents “experienced mistreatment,
harassment, or discrimination on the job” (p. 2). They also faced housing
instability, health care access barriers, and poverty because of their gender
identity. Poverty rates for Black (35%), Latino (28%), and multiracial
(23%) individuals were well above the national average (7%) and their
White counterparts.
The 1990s brought increased attention to gay rights and growing accep-
tance of all lesbian, gay, bisexual, and transgender (LGBT) culture.
Nevertheless, few federal legal protections are available to transgender indi-
viduals. Hardly any federal statutes mention transgender people, much less
try to protect them. As of 2012, 16 states and Washington, D.C., protect all
LGBT individuals against discrimination in employment, an additional 5
states protect solely sexual orientation, and 3 state courts interpreted sex or
disability statutes to protect gender identity (Human Rights Campaign,
2011). Similar patterns are found among housing and education nondiscrim-
ination statutes.
LGBT advocates often fault policy design or implementation for the low
utilization rates of nondiscrimination laws, but one major reason is pure
numbers. No precise census of the population exists, but Gates (2011) esti-
mates 700,000 transgender adults in the United States, roughly 0.3% of
Americans, and an additional eight million, approximately 3.5%, who iden-
tify as lesbian, gay, or bisexual. So why study these local laws? Most studies
focus on state efforts, but it is not realistic to expect pro-LGBT statutes to
pass in the near future in many red states, so conservative states are continu-
ously omitted in our discourse of LGBT rights. Still, the most populous

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Administration & Society 46(1)
cities and counties in the nation are protecting transgender people, and hubs
of LGBT-inclusive governments are developing. The number of policies is
growing exponentially and even conservative states have patches of LGBT
networks. These policies are partly symbolic of a commitment to equality
and diversity, but also indicate the changing attitude in American society and
the future direction of public administration. The numbers may be low, yet
the signal is clear: Public Administration needs to adjust to and incorporate
the LGBT population.
This study seeks to understand how clear of a signal local governments are
sending. As of July 2011, 154 local governments—117 cities and 37 counties—
established formal transgender-inclusive nondiscrimination policies. This
study analyzes policies on three dimensions: scope, ability to be imple-
mented, and safeguards provided. From this, we can draw conclusions on
whether these policies are isolated to employment and their potential utility.
Literature Review
Gender nondiscrimination policies present an interesting dilemma for pub-
lic administration with conceptual, legal, and personnel concerns. Three
intrinsic difficulties exist for public organizations banning gender-identity-
based discrimination. First, the concept of gender is elusive. Gender identity
must be defined independent from sex and sexual orientation. Second,
nondiscrimination policies open government to legal ramifications if found
in violation. This compels administration to dedicate time and resources to
implement policy or risk liability. Third, implementation is further compli-
cated by the organization’s interpersonal dynamics. Diversity management
is a concern for employers with new nondiscrimination policies.
Gender Argot
The transgender community has a myriad of terms to describe its members’
identities. Many terms can vary in meaning, and connotation, depending on
the region and the subset of the community that the speaker is part of, but
sex, gender, sexual orientation, and gender identity are key concepts with
standard definitions. Gender denotes “behavioral, cultural, psychological
or social traits typically associated with one sex,” but gender describes
one’s biological makeup (Human Rights Campaign Foundation [HRCF],
2008, p. 2). Gender can be devoid of physical evidence, but sex can be
observed or determined. A popular adage in the transgender community
puts it as follows: “Gender is between the ears, sex is between the legs.”

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Neither gender nor sex must fit the standard binary of male or female. A
person’s gender identity may be male, female, neither, or a combination of
both. Sex describes the sex characteristics you are born with, which classi-
fies individuals as male, female, or intersex. Most people’s gender and sex
align, but transsexuals are people who feel that their sex and gender differ.
There are female-to-male (FTM) transsexuals and male to female trans-
sexuals, but they both fall under the transgender umbrella. Transgender is
a catch-all term that encompasses all gender-nonconforming individuals
(Lieber, 2007). This includes transsexuals, drag performers, butch women,
and effeminate men, among others; however, it is critical to note that not
all of these people will identify as transgender.
Sexual orientation and gender identity are often mistaken. Heterosexual,
bisexual, and homosexual are sexual orientations that American society col-
lectively knows, but it is an oversimplified catalog. Sexual orientation
describes people to whom an individual is sexually attracted, whereas gender
identity “refers to a person’s innate, deeply felt psychological sense of gen-
der” (HRCF, 2008, p. 2). Gender is rooted in behavior and culture, but gender
identity describes where individuals view themselves on the male/female
spectrum. The most important issue for public administrators to understand is
that nondiscrimination policies protecting gender identity and expression
seek to end discrimination based on all components of gender, from sex to
gender stereotypes.
Protections: Sexual Orientation Versus Gender Identity
All LGBT individuals face discrimination in part because of their gender
nonconformity. Bias against them can stem from the individual being per-
ceived as violating the norms of sexual orientation, gender...