As I enter my third year of blogging on The Huffington Post, I would like to return to the post that generated the most debate and heat in the first two years. That post, from last September, "Burying the Lede: The LGBT Community's Deafening Silence on Federal Transgender Employment Protections," provided in-depth background about the Macy v. Holder case, the most momentous federal trans-rights advance in our history, and the community silence that followed. It struck a chord.
Today, thanks to the sterling reportage of BuzzFeed journalist Chris Geidner, we have reached a notable moment in movement history. Commissioner Chai Feldblum of the EEOC, the motive force behind the Macy decision, has spoken out publicly, and both the Human Rights Campaign (HRC) and the National Center for Transgender Equality (NCTE) have now publicly stated their recognition of the significance of federal coverage of trans persons under Title VII of the 1964 Civil Rights Act.
Fred Sainz, Vice President for Communications for HRC, said, "Both the Macy v. Holder EEOC decision and the Office of Federal Contract Compliance Programs (OFCCP) Directive 2014-2 have provided real, immediate remedies for transgender workers."
Mara Keisling, Executive Director of NCTE, added, "We strongly believe job discrimination against trans people is illegal everywhere in this country under Title VII."
No lede being buried this time.
What prompted this coming out from HRC and NCTE? Several weeks ago the National LGBTQ Task Force, coincident with the organization's renaming and "Be You" campaign, published several graphics that denied the reality of the Title VII protections brought about by the Macy decision and the subsequent actions taken by the EEOC and legal advocates on behalf of clients. There was no vagueness, dancing on the head of a pin or splitting hairs on the legalese as many organizations have done since the Macy decision. No, the statement was stark:
"There are NO FEDERAL PROTECTIONS for employment non-discrimination."
Asked by me to clarify, Kylar Broadus, who had replaced Lisa Mottet at the Transgender Civil Rights Project of the Task Force, said:
The Task Force follows the Macy decision rendered by the Equal Employment Opportunity Commission (EEOC) which is an administrative agency and not a court of law. EEOC rulings are used as guidance by courts of law in most instances. Courts aren't bound by EEOC rulings but usually give great deference to them. Court decisions rendered by appeals courts become law. A case has to be brought to win or set precedent in a particular circuit which is why there is still need for a federal statute protecting workers.
An uninformed trans person, upon visiting the website or Facebook page of the Task Force, driven there by the organization's four-decades-long history of cutting-edge LGBT activism, including being the first national advocacy organization to embrace the trans community by setting up the Transgender Civil Rights Project in 2001, would leave feeling deflated and alone in the face of employment discrimination. If she didn't live in a state, city or county with explicit protections -- many of them thanks to the decade of work by Lisa Mottet, a former student of Professor Feldblum's, and her staff at the Task Force -- she would simply resign herself to the reality of discrimination.
To prevent that, I have been hammering away at the new reality post-Macy. With the help of colleagues at Freedom to Work and the Transgender Law Center (TLC), as well as trans activist and icon Riki Wilchins of True Child, trans attorney and Lambda Legal board member Jillian Weiss and Gender Rights Maryland board chair Sharon Brackett, we published a brochure available on the TLC website explaining those protections. We've talked about them around the country, doing our best, with no resources, to educate the community. But without the clout of the HRC, NCTE and Task Force, our reach was limited.
I ran into resistance speaking with the national media, as Task Force attorneys undercut my message to the community about Macy. One example occurred shortly after the decision, when Julie Turkewitz of The Atlantic, to whom I had spoken for 90 minutes about Macy at a trans conference, rewrote her work because she'd gone to the Task Force for a second opinion. What should have been "Title VII now covers transgender workers in all 50 states" was reduced to "While the decision applies only to federal employees...."
Members of the administration, including some at the EEOC, were perplexed by the silence on the issue, the vacuum at the top of the national advocacy community. This bewilderment began over two years ago but has increased since President Obama's long-awaited signing of Executive Order 13672 covering the federal-contractor workspace this past July, and the subsequent actions of the Labor Department to finally work proactively to protect trans workers under the Macy decision. Why, particularly with the end of any action on the Employment Non-discrimination Act (ENDA) for the foreseeable future, would the community surrender its one and only yet golden weapon for workplace protections? Why couldn't the community take "yes" for an answer?
I still don't know, though I've heard many explanations, the most common being that pushing cases under Title VII will likely lead to adverse federal court decisions, or that nothing is settled until the Supreme Court rules. Some think court losses from more than a decade ago are still determinative. None of these fears makes any sense, because if you don't use your rights, they will never be tested, and who would be better off not even trying? Yet, as Geidner points out, there have been multiple cases since 2012, and the community has won almost all of them. The EEOC has exhorted the trans community to file suit; could we have a more important cheerleader? And as the 11th Circuit Court of Appeals (covering Alabama, Georgia and Florida) pointed out in the Glenn v. Brumby et al. case of 2011, which Vandy Beth Glenn won on 14th Amendment considerations pre-Macy (emphasis mine):
[S]ince the decision in Price Waterhouse, federal courts have recognized with near-total uniformity that "the approach in Holloway, Sommers, and Ulane ... has been eviscerated" by Price Waterhouse's holding that "Title VII's reference to 'sex' encompasses both the biological differences between men and women, and gender discrimination, that is, discrimination based on a failure to conform to stereotypical gender norms.
This week Commissioner Feldblum spoke out against the Task Force's messaging:
But [the Task Force statement] is incomplete -- both as a legal and practical matter. It fails to capture the reality that the EEOC currently helps thousands of individuals each year get recourse (& remedies) for their discrimination claims, without ever going to court. And they get that through the legal system set up for administrative relief via the EEOC. And that is what our 53 EEOC offices across the country are now doing right now for LGBT people under our Title VII jurisdiction. Thus, there are practical remedies being achieved through the administrative system right now in every state in the country.
To begin where I started, that doesn't mean an explicit federal law is unnecessary. To the contrary, it would be hugely helpful. It's just important not to downplay the real practical protection that exists now.
The commissioner's public statements prodded the HRC and NCTE statements, so now I can truly hope that the words of Tico Almeida, Executive Director of Freedom to Work and a long-time proponent of the value of the Macy decision, will be heeded:
I would like to see the big national LGBT organizations use their ample budgets on a public education campaign to promote the historic nature of the Macy decision so that more LGBT Americans will know that the EEOC is open for business and willing to help.
Until we get an ENDA with explicit protections or, better yet, an omnibus civil-rights bill that comprehensively protects the entire LGBT community, we need to make the most of what we have, and with a little luck Title VII may soon cover sexual orientation to the same degree that it now covers gender identity and expression.
As many of us have long said, it's good to be out of the closet, once and for all. The Task Force should join us and enjoy the sunshine.