Over the past month I've written about Title VII and the Macy Decision, and the growing acceptance of its reality within the LGBT community and the community's willingness to say so publicly. This week I want to move the story forward and detail a case, which is among the first two brought to court by the EEOC under the Macy decision. I am doing so because it's important for the community to understand the impact of that decision of 30 months ago, and to be aware that there are those who are taking advantage of their new rights under the most important civil rights law in our nation's history. This is in spite of the fact that there are still trans community leaders who think this huge advance is "technical," just because discrimination has not yet ended. By that measure, the entire 1964 Civil Rights Act is still just "technical" as well.
I also want to highlight over the next few weeks into the new year some of the leaders of the trans community who are either poorly known, or insufficiently recognized. We live in a celebrity culture, one in which, apparently, "glamorous women lead the trans revolution." Sorry -- with a few notable exceptions, those glamor girls are neither activists nor leaders. In addition, as Ms. Boatman points out, there is a serious downside to celebrating them, in that it returns us to a state of hypersexualization, one which confuses the general population about the trans reality and experience, and from which we have been working to escape for the past two decades. It's great news and evidence of cultural progress that those women can fulfill their lives as they desire, and are recognized as worthy, but their work and beauty do not constitute leadership.
Leadership is exemplified by the trans attorney who is the nation's leading advocate for transgender employment protections, Jillian Weiss. Jill takes the laws for which many have fought and uses them to help her clients, making the promise of equality and fairness real for trans persons.
This case, one of two in which the EEOC is intervening by filing suit and expending resources, is described by Jillian, who also happens to sit on the board of Lambda Legal.
In the summer of 2011, I was contacted by Brandi Branson, a woman from Florida who had been terminated from her position at Lakeland Eye Clinic, P.A. in Lakeland, Florida after gender transition. She asked for my help as a lawyer. My day job is academia, where I teach, research and write about law, with a specialization in transgender workplace law and policy. After the failure of ENDA, it was my professional opinion that the courts and administrative agencies were our best chance for relief from the rampant mistreatment of trans employees.
However, the law of employment discrimination is extremely convoluted, and requires proof of a dozen elements and guarding against a dozen affirmative defenses. Furthermore, the EEOC gets about 100,000 complaints per year, and only about 5 percent receive a finding of reasonable cause to believe that discrimination has occurred. (At this stage, they do not definitively determine that discrimination has occurred, only that there is reason to believe it happened.) Nonetheless, I agreed to help, and we filed a complaint with the EEOC in Fall 2011.
The investigatory process was surprisingly long. Three years later, we received a finding from the EEOC that there was reason to believe that discrimination had occurred on the basis of her transgender identity. This was wonderful vindication, but the matter was far from over. Attempts to conciliate with the employer over the next few months unfortunately failed. Now what?
When conciliation fails, the EEOC can decide to bring the employer to federal court to prove that discrimination actually occurred and to seek monetary and injunctive relief. Normally, however, after conciliation fails, the EEOC issues a notice of dismissal and advises of your right to bring the case yourself, another years-long exercise, but this time in the federal courts. For that process, employers hire lawyers with mastery of hundreds of abstruse written rules and unwritten procedures and thousands of pages of prior court opinions, as well as experience in trial and appellate processes. Employees win about 15 percent of the time in federal court. Of the 5000 or so successful cases at the agency stage, the EEOC only litigates about 300 cases per year. They had never before brought a case to court involving a transgender employee. Would this be the first?
It turned out to be the first of two. On September 25, 2014, the EEOC brought suit in federal court in two cases. One of these was the case of Detroit-based R.G. & G.R. Harris Funeral Homes, Inc. for discharging a funeral director because she informed her employer of her impending gender transition. The other was Ms. Branson's case, filed in the United States District Court for the Middle District of Florida. While it will likely take years to complete the federal court process, it is a clear signal from the United States government that transgender discrimination is a serious matter, and will not permitted in this country.
There have been others, e.g., the McCreery case, where the eponymous South Dakota trans woman was represented by Lambda Legal, and there will be still more. The more cases are brought, the more attention there will be to the protections, and the less likely it will be that trans persons will be discriminated against in the future. Ultimately we are best protected when Americans internalize their civil rights laws and behave decently in the first place. Court cases take years of one's life, significant resources and force a heavy emotional toll under the best of circumstances. The goal is to be able to sit down with an employer, and, basically, read him your rights, making it clear that an act of discrimination is in no one's best interest. We can all get along.
And it's thanks to leaders such as Jillian Weiss that we are more equal and free today than ever before.