Does the law protect transgender employees from discrimination?

| Mar 11, 2020 | Employee Discrimination

Here’s a fact: if you are a federal employee, then you have protection against discrimination based on sex. Here’s another fact: more and more people question exactly what “sex” means.

This isn’t a new argument. It broadly pits those who believe sex is a biological designation against those who believe sex is a social construct. Now, the Supreme Court must consider these arguments as it weighs three cases about sexual discrimination directed toward members of the LGBTQ community.

What is the meaning of sex?

As NPR reported, the debate hinges on the definition of “sex.” The Civil Rights Act of 1964 made sex a protected class through Title VII. For decades, case law, including Supreme Court cases, and the Equal Employment Opportunity Commission (EEOC) supported a broader interpretation of “sex discrimination” that included:

  • Biases on gender roles
  • Same-sex discrimination (such as men discriminating against other men)
  • Gender identity, including transgender status
  • Sexual orientation

The previous administration reinforced these concepts across multiple agencies, but now policy makers argue that Title VII “does not cover gender identity.” This new perspective claims the previous interpretation was too broad. agencies have removed language about transgender rights from many policies. These affect everything from employment, education and child welfare to criminal justice and the military.

Are transgender employees still protected?

A White House spokesperson suggested that the changes in the wording may not signal real policy changes. The president, claims the spokesperson, “has never considered LGBT Americans second class citizens, and has opposed discrimination of any kind against them.”

The president’s military ban on transgender soldier may call that claim into question. But if the claim is valid, it means the government should still uphold transgender rights to equal employment opportunities. Transgender employees should enjoy the same rights as their peers to employment, advancement and workplaces free from harassment.

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