Transitioning to the Transgender Workplace: What Lawyers and Their Clients Need to Know, 1116 ALBJ, 77 The Alabama Lawyer 428 (2016)

AuthorSandra B. Reiss, J.
PositionVol. 77 6 Pg. 428

Transitioning to the Transgender Workplace: What Lawyers and Their Clients Need to Know

Vol. 77 No. 6 Pg. 428

Alabama Bar Lawyer

November, 2016

Sandra B. Reiss, J.

Recent headlines have focused greater attention on the transgender community. Though we live and practice law in the “Deep South,” this issue and the individuals who are considering transitioning or who have already done so will soon become more visible and a part of your workplace, client list, circle of friends or a member of your family. This article should provide you with an introduction to terms and a short history of transgender people, as well as recent employment laws changes protecting these individuals, state and local legislation as it relates to the transgender population and some practical pointers for assisting transgender employees.

History, Facts and Figures

The term “transgender” refers to people whose gender identity, not sexual attraction, differs from the sex they were identified with at birth. A transgender person may identify as male-to-female (transitioning from male to female) or as female-to-male, and most transgender persons describe their condition as one of feeling, with unbearable intensity, they were born in the wrong body.[1] Well-known figures such as Caitlyn Jenner and Laverne Cox, of the Netflix show “Orange Is the New Black,” are identified as transgender women because they were born as biological males or identified as such at birth, and have transitioned to become the female they long believed and felt they were since childhood.2 Children as young as three years of age have experienced and voiced this sense of gender dysphoria.3

The gender transition process is usually long and involved and frequently includes intensive counseling, legal changes and medical procedures in order to complete the transition and live in society as the gender one believes he or she was born to be. One of the first recorded transgender men was Lawrence Michael Dillion, born May 1, 1915 in London as Laura Maud Dillon. In 1942, she began the process of taking male hormones and had necessary surgeries. In 1944, she amended her birth certificate, changing “daughter” to “son” and “Laura Mead” to “Laurence Michael.” Laurence Michael later enrolled in medical school and during his holidays underwent additional surgeries to complete the transition to becoming a male.4 He served as a ship’s doctor on voyages to Asia, Australia and America; however, after his “secret” was disclosed without his consent, he fled to Calcutta and lived in a Buddhist monastery later becoming ordained as a monk in the Tibetan Order.

The first well-known transgender woman in the United States was Christine Jorgensen. She was born George William Jorgensen, Jr. in May 1926, and grew up in the Bronx as a male. She was drafted into the U.S. Army in 1945, and attended college and worked as a dental assistant. Ms. Jorgenson began taking hormones and had two major surgeries abroad in 1951 and 1952 as such medical procedures were not readily available in the United States. She later located to California and died in 1989.5

It is estimated that 0.3 percent or 700,000 Americans identify as transgender.6 The average transgender American earn less than $10,000 a year and the rate of poverty among this group is four times higher than the national average, an irony given that these individuals as a whole, have a higher education level than the general population.[7]

Federal Law Now Protects Transgender Employees and the Eleventh Circuit Court Of Appeals Opened the Door to This Protected Class

If you are an employer with 15 or more employees in this or the previous year, you may not discriminate against a transgender employee or applicant as to any recognized term or condition of employment, including, but not limited to, hiring, promotion, termination, discipline and pay. In 2012, the Equal Employment Opportunity Commission (“EEOC”) held that discrimination against a person because he or she is transgender is discrimination “because of sex and therefore is prohibited under Title VII of the Civil Rights Act of 1964.”8 In sum, making employment decisions because an employee or applicant does not fit a gender stereotype is a form of sex or gender discrimination. The EEOC has made coverage of “lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions. . .” an enforcement priority for FY 2013-2016.9 In the final three quarters of 2013, the EEOC received 147 charges of discrimination and/or harassment based on gender identity/transgender status. In 2014, that number grew to 202 charges, and as of the first two quarters of 2015, 112 charges had already been filed based on transgender status.10 In 2014, of the 9.2 percent transgender cases settled by the EEOC, the claimants were awarded $530,995, which did not include the other 90.8 percent of cases that went to court or were settled privately between the parties.11 Discrimination based on transgender status applies to both public and private sector employees.12

Even before the EEOC recognized transgender status as a protected category, the Eleventh Circuit Court of Appeals played an important role in recognizing the rights of transgender employees before they were officially protected by the EEOC and Title VII of the Civil Rights Act of 1964. In Glenn v. Brumby, a claim including direct evidence arising under Section 1983, the defendant appealed from an adverse summary judgment in favor of the plaintiff finding that Brumby had violated the Equal Protection clause based on sex discrimination 663 F.3d 1312 (11[th] Cir. 2011). At the time, plaintiff Glenn was working as an editor for the Georgia General Assembly Office of Legislative Counsel (“OLC”). Defendant Brumby was the head of the OLC and was responsible for personnel decisions. Glenn, a male-to-female transgender individual was diagnosed with Gender Identity Disorder (“GID”) in 2005, and began transitioning from male to female under the supervision of health care providers. Part of the treatment required Glenn to live as a woman outside of the workplace as a prerequisite to surgery. 663 F.3d at 1313. “In . . . 2007, Glenn informed . . . [her immediate supervisor] that she was ready to proceed with gender transition and would begin coming to work as a woman and was also changing her legal name." Id. Glenn's supervisor "Yinger informed Brumby, who ... [in turn] terminated Glenn because 'Glenn's intended gender transition was inappropriate,... would be disruptive,... some people would view it as a moral issue and that it would make Glenn's coworkers uncomfortable.'"

Id. (emphasis added.)

In affirming summary judgment for the plaintiff, the appellate court composed of Judges Barkett, Pry or and Kravitch, stated, "[T]he questions here is whether discriminating against someone on the basis of his or her gender non-conformity constitutes sex-based discrimination under the Equal Protection Clause. For the reasons discussed below, we hold that it does." Id. at 1316.

A person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes. "The very acts that define transgender people as transgender are those that contradict stereotypes of gender appropriate appearance and behavior." Ilona M. Turner, Sex Stereotyping Per Se: Transgender Employer and Title II, 95 Cal. L. Rev. 51, 563 (2007) ... There is thus a congruence between discriminating against transgender and transsexual individuals and discrimination on the basis of gender-based behavioral norms. Id. (emphasis added).

In examining Glenn's termination, the Court further stated, in this case, Brumby testified at his deposition that he fired Glenn because he considered it "inappropriate" for her to appear at work dressed as a woman and that he found it "unsettling" and "unnatural" that Glenn would appear wearing women's clothing. Brumby testified that his decision to dismiss Glenn was based on his perception of Glenn as a "man I dressed as a woman and made up as a woman" and Brumby I admitted that his decision to fire I Glenn was based on "the sheer I fact of the transition." 663 F.3d at 1320-1321.

The Court held that "Brumby's testimony provides I ample direct evidence to support I the district court's conclusion I that Brumby acted on the basis I of Glenn's gender non-conformity. If this were a Title VII I case, the analysis would end I here." 663 at 1321. (emphasis I added)

In Macy v. Eric Holder, Department of Justice, (Bureau of I Alcohol, Tobacco, Firearms and I Explosives), Agency...

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