Why We're Asking Courts and Legislatures for Transgender Equality

by Kenneth Y. Choe

(From “Where We Are 2003”: The Annual Report of the ACLU Lesbian & Gay Rights Project)

Winn-Dixie, a Fortune 500 grocery store chain, fired Peter Oiler, one of its truck drivers, when it discovered that he cross-dresses off-the-job.

Winn-Dixie admits that it fired Oiler solely because it considers the way in which he dresses off the job to be insufficiently masculine. Indeed, when asked to explain why Winn-Dixie had fired Oiler, one manager responded: “”[Oiler] was doing something that was abnormal in most people’s opinion about what was accepted for a person who is a man.””

On Oiler’s behalf, the ACLU sued Winn-Dixie in federal court in Louisiana, claiming violations of both federal and state laws that prohibit sex discrimination in the workplace.

The ACLU invoked the principle that laws against sex discrimination cover discrimination based on sex stereotypes. In a case in which an employer penalized a female employee because it considered her to be “”macho,”” the Supreme Court, confirmed that “”we are beyond the day when an employer could evaluate employees by assuming or insisting that they match the stereotype associated with their group.””

The goal is to establish that this principle applies equally where an employer penalizes a transgendered employee because the employer thinks he or she is insufficiently masculine or feminine. The ACLU has little doubt that this is correct, the inevitable outcome of fair application of the general principle. But we also recognize that it may take us more than one case to convince the courts. New ideas often do.

We seek clarification from legislatures, even as we do so from courts.

Already, two states – Minnesota and Rhode Island – and 46 municipalities – most recently New York City – explicitly prohibit employment and other types of discrimination based on gender identity and expression. Bills addressing discrimination based on gender identity and expression have been introduced in the legislatures of 13 states, and we hope to see such a bill introduced in the Congress in the near future.

Bills addressing discrimination based on sexual orientation but not gender identity and expression have been introduced in the legislatures of 21 states. As a general rule, we support the expansion of the scope of such bills to include discrimination based on gender identity and expression.

Our experiences in Atlanta, New Orleans, and other municipalities have shown that, contrary to conventional wisdom, the inclusion of gender identity and expression in proposed sexual orientation laws does not diminish their chance of success. Indeed, in Louisville, each time activists agreed to a proposed law addressing discrimination based on sexual orientation but not gender identity and expression, their efforts failed. When they insisted on transgender-inclusiveness, however, the law passed.

Moreover, the inclusion of gender identity and expression in bills addressing sexual orientation discrimination provides us with a way to educate lawmakers about the similarities and differences between the discrimination faced by the transgender community and that faced by the lesbian, gay, and bisexual community.

Some have suggested that, by pressing for new laws prohibiting discrimination based on gender identity and expression, we implicitly suggest that existing sex discrimination laws do not already prohibit gender identity discrimination. Our judicial and legislative efforts, however, are not in conflict with one another.

First, even though sex discrimination laws implicitly prohibit gender identity and expression discrimination, it is important to make that explicit. Civil rights laws are valuable not only because they provide remedies when discrimination occurs but also because they discourage such discrimination from occurring at all. Discrimination based on gender identity and expression is less likely to occur where civil rights laws, by their own language, put the entire community on notice that such discrimination is unlawful.

Second, conservative courts continue to cling to analytically flawed interpretations of sex discrimination laws that do not recognize discrimination based on gender identity and expression – especially discrimination based on transsexuality – as a form of discrimination based on sex. These courts could not continue to do so, however, if legislatures were to clarify that the scope of such laws includes discrimination based on gender identity and expression.

Unfortunately, the rise in the visibility of the transgendered community has been accompanied by a rise in discrimination based on gender identity and expression. That rise in discrimination makes it imperative that we make it clear now that the law protects transgendered Americans, and that discrimination against them is illegal and unacceptable.