A Pro‐Trans Argument for a Transexclusive Employment Non‐Discrimination Act

• DOI: http://doi.org/10.1111/ablj.12022
• Published date: 01 December 2013
• Date: 01 December 2013
• Author: Alex Reed

A Pro-Trans Argument for a

Transexclusive Employment

Non-Discrimination Act

Alex Reed*

INTRODUCTION

November 7, 2007, should have been a day of celebration for lesbian, gay,

bisexual, and transgender (LGBT) Americans. For the first time in thirty-

three years, a chamber of the U.S. Congress had advanced legislation

prohibiting employment discrimination on the basis of sexual orientation.1

The manner in which the Employment Non-Discrimination Act

(ENDA) was passed, however, threatened to tear the LGBT community

apart. Transgender persons were outraged that ENDA’s sponsors, in an

attempt to make the bill more palatable to opponents, had stricken lan-

guage prohibiting gender identity discrimination from an earlier version

of the bill.2For their part, lesbian, gay, and bisexual (LGB) individuals

were conflicted. Whereas most LGB persons were elated at the prospect of

finally securing meaningful employment protections against sexual orien-

tation discrimination, many were troubled by the thought of leaving their

transgender allies behind.3

Heeding the lessons learned in 2007, ENDA’s sponsors have

included language prohibiting gender identity discrimination in each

*Assistant Professor of Legal Studies, Terry College of Business, University of Georgia.

1David M. Herszenhorn, House Approves Broad Protections for Gay Workers, N.Y. TIMES, Nov. 8,

2007, at A1.

2Gabrielle Russon, Gay-Rights Milestone Draws Transgender Activists’Outcry,CHI.TRIB., Oct. 18,

2007, at A8.

3Carolyn Lochhead, Rights Bill Snagged: Sexual Orientation, Sexual Identity Blur, S.F. CHRON.,

Oct. 3, 2007, at A1; Shailagh Murray, Quandary Over Gay Rights Bill: Is It Better to Protect Some

or None?,W

ASH.POST, Oct. 18, 2007, at A23.

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American Business Law Journal

Volume 50, Issue 4, 835–874, Winter 2013

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American Business Law Journal © 2013 Academy of Legal Studies in Business

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subsequent version of the bill.4These more recent ENDAs have not fared

as well as their 2007 counterpart, however, having all died in committee.5

While this reversal of fortune is primarily attributable to a change in the

leadership of the U.S. House of Representatives, Congress’s reluctance to

move forward on a bill that once enjoyed broad bipartisan support6

appears to validate the concerns that precipitated gender identity protec-

tions’ removal from ENDA 2007. Lawmakers in both parties ostensibly are

not comfortable with the notion of a transinclusive ENDA even if they

otherwise support extending employment protections to LGB persons.7

Nevertheless, many commentators continue to advocate in favor of a

gender identity inclusive ENDA on the belief that both transgender

persons and LGB individuals will remain vulnerable to discrimination

under a sexual orientation–only version of the bill.8These scholars

contend that if Congress were to pass a gender identity exclusive ENDA,

employers wishing to discriminate against LGB persons could circumvent

the statute by recasting sexual orientation discrimination as discrimination

on the basis of gender identity.9This hypothesis is predicated on an

assumption that most LGB individuals exhibit certain gender-

nonconforming characteristics and that LGB persons will continue to be

4H.R. 3017, 111th Cong. § 4 (2009); S. 1584, 111th Cong. § 4 (2009); H.R. 1397, 112th Cong.

§ 4 (2011); S. 811, 112th Cong. § 4 (2011).

5Library of Congress, Bill Summary & Status: Employment Non-Discrimination Act of 2009,

Thomas, http://thomas.loc.gov/cgi-bin/bdquery/z?d111:h.r.03017:(last visited Nov. 21, 2012);

Library of Congress, Bill Summary & Status: Employment Non-Discrimination Act, Thomas,

http://thomas.loc.gov/cgi-bin/bdquery/z?d112:h.r.01397: (last visited Nov. 21, 2012).

6Herszenhorn, supra note 1.

7See Press Release, Representative Barney Frank, Rep. Frank Issues Statement on Employ-

ment Non-Discrimination Act (Sept. 28, 2007) (noting it has taken “decades of education . . .

about the unfairness of sexual orientation discrimination” to have even a chance of extending

employment protections on the basis of sexual orientation whereas “educational efforts

regarding gender identity are much less far along, and . . . face a steeper climb”).

8E.g., Angela Clements, Sexual Orientation, Gender Nonconformity, and Trait-Based Discrimination:

Cautionary Talesfrom Title VII & an Argument for Inclusion,24B

ERKELEY J. GENDER L.&JUST. 166

(2009); Shannon H. Tan,When Steve Is Fired for Becoming Susan: Why Courts and Legislators Need

to Protect Transgender Employees from Discrimination,37S

TETSON L. REV. 579 (2008); Jennifer

Wilson, Horizontal VersusVertical Compromise in Securing LGBT Civil Rights,18TEX.J.WOMEN&

L. 125 (2008).

9Clements, supra note 8, at 170; Tan, supra note 8, at 606; Wilson, supra note 8, at 130–31.

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unsuccessful in stating cognizable sex-stereotyping claims under

Title VII.10

This article rejects the premise that a sexual orientation–only ENDA

will leave transgender persons without any legal recourse while ensuring

that LGB individuals remain susceptible to continued employment dis-

crimination and instead contends that an exclusive ENDA is in the best

interests of the entire LGBT community. Part I provides a brief history of

Congress’s attempts to pass legislation prohibiting discrimination on the

basis of sexual orientation and, more recently, gender identity. Part II

reveals that federal courts and the Equal Employment Opportunity Com-

mission (EEOC or Commission) are increasingly likely to perceive dis-

crimination on the basis of gender identity as actionable sex discrimination

such that passage of an inclusive ENDA risks foreclosing transgender

persons from obtaining relief under the more robust provisions of Title

VII. Unlike Title VII, ENDA does not permit disparate impact claims or

voluntary affirmative action programs, and while religious organizations

are afforded only a narrow exemption under Title VII, these entities are

wholly exempt under ENDA. Conversely, after establishing that stand-

alone legislation represents LGB persons’ best hope for securing mean-

ingful employment protections under federal law, Part III demonstrates

that an exclusive ENDA will not leave LGB persons vulnerable to gender

identity discrimination. Historically, courts have been reluctant to permit

sex-stereotyping claims by LGB persons for fear these individuals are

attempting to bootstrap sexual orientation protection into Title VII.

Passage of an exclusive ENDA would serve to assuage these concerns and

ensure that courts do not dismiss otherwise viable sex-stereotyping claims

simply because the plaintiff happens to be gay, lesbian, or bise xual.

I. FORTY YEARS OF FAILURE:PRIOR LEGISLATIVE

ATTEMPTS TO PROHIBIT SEXUAL ORIENTATION–

BASED EMPLOYMENT DISCRIMINATION

On May 14, 1974, Representative Bella Abzug introduced the Equality Act

in the U.S. House of Representatives.11 The bill sought to protect gays and

1042 U.S.C. § 2000e-2 (2011).

11H.R. 14752, 93d Cong. (1974).

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