The past week was a historic week for the civil rights of the trans community, on three counts. First, by a bipartisan vote, the Senate committee overseeing the Employment Non-Discrimination Act (ENDA) passed the bill to the floor of the Senate without amendment. Then, nearly 15 months after winning a ruling from the Equal Employment Opportunity Commission (EEOC) that expanded the definition of "sex discrimination" in Title VII of the 1964 Civil Rights Act to include transgender and gender-nonconforming persons, Mia Macy won a judgment from the Department of Justice in the case Macy v. Holder. The DOJ determined that the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), a law enforcement organization within the DOJ, had discriminated against Ms. Macy on the basis of her transgender status, and hence on the basis of her sex, and ordered that she be offered the job for which she had applied and been denied based on her trans status, that she be awarded back pay with interest and other benefits, that she be awarded reasonable attorneys' fees, that she be eligible for compensatory damages, and that the ATF take corrective action at the laboratory to prevent further acts of discrimination. This is a significant win for Mia, but just as much for the trans community, as the DOJ took action on behalf of Ms. Macy based on the April 20, 2012, EEOC decision.
And that wasn't all that happened last week: A settlement was reached in another trans discrimination case, this time at a private employer in Maryland, with the charging party represented by Freedom to Work and Lambda Legal. This case is the first such case to follow the historic Macy decision, and the result justifies the faith that some members of the trans community had in the American justice system. Tico Almeida, the president of Freedom to Work, the organization where I serve as national board chair, told BuzzFeed:
Coming just a few months after the EEOC issued its historic decision that transgender people are protected by Title VII of the Civil Rights Act, the EEOC's reasonable cause determination in this case is, to our knowledge, the first time in history that the EEOC has investigated allegations of anti-transgender harassment and ruled for the transgender employee. This case shows that the EEOC takes very seriously its role in protecting LGBT Americans' freedom to work.
This case's importance cannot be ignored. There have been those in positions of leadership in the LGBT community who have ignored or minimized the impact of the Macy decision, justifying their actions based on fear of subsequent court decisions rejecting the EEOC's interpretation of Title VII. Some have gone so far as to say that they would discourage trans persons from bringing complaints to the EEOC for fear that, ultimately, the Supreme Court would overturn Macy. As a result, there are trans persons, including some leaders in the community, who are unaware today that they have full employment rights in all 50 states, D.C. and the territories.
No one can predict what a court will do in the future, be it a district or appeals court, or even the Supreme Court. But that people would ignore the historic and sweeping nature of the EEOC's expansion of the definition of "sex discrimination," leaving many in the trans community mired in unemployment and underemployment without hope of available redress, is baffling. At a minimum, until the SCOTUS rules against the trans community, assuming that they would ever take such a case, the empowerment of the community to push themselves forward to better lives would make a real difference to those people. And their empowerment and their exercising of their rights would in and of themselves change the culture and lessen the possibility of a contrary decision in the future. The more it becomes accepted that trans persons are protected -- accepted by employers, lawyers, HR departments, lower courts and government officials -- the more unlikely it will be that a reactionary decision would ever occur.
And another, just-as-dodgy justification has been heard, which is that Title VII protections threaten passage of ENDA. That reasoning goes that if Congress knew that these protections existed, the legislation would die. After all, we have heard in legislatures such as Maryland's that there is no need for a gender identity bill because we have federal protections. That argument was just a disingenuous smokescreen, because it was made years before the Macy decision in 2012. One small problem with that is that gender-conforming gay persons are not yet protected under Title VII, so ENDA is critically needed to protect them. That's why I coined the slogan "no gays left behind."
Finally, another argument expresses the fear that trans protections would be stripped from the bill because trans persons are already covered, and doing so would make passage of a sexual-orientation-only ENDA so much easier. Maybe, but it could happen anyway simply because some legislators are prejudiced against the trans community. And the more rational response is that given the present existence of the Title VII protections, Congress would be doing nothing novel in passing a trans-inclusive ENDA. This is the argument we make while lobbying on the state and local level, in response to those who are still concerned about trans women in women's spaces. Some may have this irrational fear about trans women in such spaces, but the fact is that we're already there, today and every day, and have been for decades. Congresspersons are not enabling any new behavior by passing this legislation. And the sky hasn't fallen these past five decades of the modern era of gender reassignment, so it is unlikely to fall when they vote for gender identity protections.
As my friend Lynn Conway, without whose efforts back in the '70s you would not now be reading this on your computer or phone, recently wrote, "If you want to change the future, start living as if you're already there." For the trans and gender-nonconforming community the future is already here, making living it that much easier.
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