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Transgender workplace discrimination in the age of gender dysphoria and ENDA.

ABSTRACT

Transgender Americans are one of the groups most vulnerable to workplace discrimination. Until recently, the stigma surrounding their medical issues in the American social and legal environments and the field of psychology did not help protect transgender individuals from that discrimination. However, that stigma has started to change. This note analyzes the changes in psychological analysis and clinical guidelines regarding transgender individuals and how those changes will affect the outcomes of discrimination lawsuits in favor of transgender employees. This note also analyzes the impact that recent advances in the transgender rights movement may have on achieving equality in the future.

INTRODUCTION

Transgender (1) Americans are subject to much social, political, and workplace discrimination. (2) To combat this discrimination, multiple proposals have been set forth to prevent discrimination on the basis of gender identity, mostly to no effect. (3) Despite those early failures, the United States Senate, on November 7, 2013, passed the Employment Non-Discrimination Act with a vote of 64 to 32. (4) In part, the Act was passed "to address the history and persistent, widespread pattern of discrimination ... on the bases of sexual orientation and gender identity by private sector employers and local, State, and Federal Government employers." (5) Opposition from House of Representatives Majority Leader John Boehner likely lessens the possibility that the bill will pass in the House, (6) despite Minority Leader Nancy Pelosi's statement that the House has enough votes to pass the bill as well as the support of President Obama. (7) However, the very fact that the bill passed in the Senate shows that much support has developed over the years for workplace anti-discrimination law and for the transgender rights movement. (8)

May 18, 2013, marked the release of the Fifth Edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), the newest version of the clinical guidelines for the classification of mental disorders published by the American Psychiatric Association (APA). (9) These guidelines altered the way transgender-related disorders were labeled by changing the diagnosis from "gender identity disorder" to the current "gender dysphoria." (10) This new change in the DSM-5's gender dysphoria guidelines "aims to avoid stigma and ensure clinical care for individuals who see and feel themselves to be a different gender than their assigned gender." (11) Despite this change, there continues to be much criticism towards the APA's methodology and decision to keep a diagnosis related to being transgender. (12) This note discusses how discrimination impacts transgender and gender variant individuals who fall within the category of transgender, how the changes in psychological classification within the new DSM may affect legislation that is already in place, and how potential anti-discrimination laws may impact transgender individuals in the workplace.

I. SCOPE OF TRANSGENDER DISCRIMINATION

Transgender individuals, especially those of color, remain one of the most vulnerable groups of Americans, (13) The APA points out that being transgender "is associated with high levels of stigmatization, discrimination, and victimization, leading to negative self-concept, increased rates of mental disorder comorbidity, school dropout, and economic marginalization, including unemployment...." (14) This discrimination leads to negative outcomes for transgender Americans. (15) One survey of transgender Americans found that 41% answered "yes" to the question "have you ever attempted suicide?" compared to only 1.6% of the general population. (16) Transgender individuals are also four times more likely than the general population to have a household income of less than $10,000.17 The low income earned by transgender individuals is made worse due to findings that 19% have reported being refused a home or apartment due to their gender expression and that almost one-fifth have reported experiencing homelessness at one point. (18)

Discrimination against transgender Americans plays a part in why they "experience[] unemployment at twice the rate of the general population," with rates up to four times higher for transgender people of color. (19) Social pressure against transgender individuals is also present in the workplace for those that are employed. (20) A survey conducted by the National Gay and Lesbian Task Force found that 90% of transgender workers have encountered some form of "harassment or mistreatment on the job or took actions to avoid it." (21) Further, 47% of transgender workers "had experienced an adverse job action" because they were transgender. (22) These discriminations include: 44% who were passed over for a job, 23% who were denied a promotion, and 26% who were fired because they were transgender. (23) These statistics represent a small part of the discrimination and bigotry that transgender individuals face compared to the general population.

II. GENDER DYSPHORIA AND THE DSM-5

After World War II, the American Psychological Association created the DSM to be the diagnostic classification and guidance system that described mental disorders. (24) The current version of the DSM has been in preparation or drafting for almost a decade. (25) The preparation of the DSM-5 brought together almost 400 scientists in thirteen scientific conferences and a series of white papers. (26) The "Task Force, Work Groups and Study Groups" included over 160 world-renowned researchers and clinicians. (27) After the criteria and changes were determined, the APA Board of Trustees "approved the final diagnostic criteria" for publication. (28) Several of the changes from the DSM-IV to the DSM-5 were "made to better characterize symptoms and behaviors of groups of people who are currently seeking clinical help but whose symptoms are not well defined by DSM-IV." (29)

The DSM-5 changes the DSM-IV diagnosis and criteria under "gender identity disorder" to the current label "gender dysphoria," and it makes a few other modifications. (30) The APA recognizes that, although the terms used in the DSM-5 are used to help facilitate proper clinical care, they "can also have a stigmatizing effect" upon the people that have been diagnosed with them. (31) The Gender Identities Work Group worried that removing the condition entirely would result in transgender individuals lacking access to medical care for the issues that come with gender dysphoria. (32) With this in mind, they sought to use a "diagnostic term that protects their access to care and won't be used against them in social, occupational, or legal areas." (33) In the new DSM-5, gender dysphoria is "separated from Sexual Dysfunctions and Paraphilic Disorders," as well. (34)

Not all individuals who fall within the broad category of transgender experience gender dysphoria or were diagnosed as having gender identity disorder. Under the previous "Gender Identity Disorder" diagnosis, the individual must have had "a strong and persistent cross-gender identification, which is the desire to be, or the insistence that one is, of the other sex." (35) This did not include identification for "perceived cultural advantages of being the other sex." (36) The individual must also show "evidence of persistent discomfort about one's assigned sex or a sense of inappropriateness in the gender role of that sex." (37) The diagnosis could not be made "if the individual ha[d] a concurrent physical intersex condition," and the final requirement was that "there must be evidence of clinically significant distress or impairment in social, occupational, or other important areas of functioning." (38)

In the DSM-5, gender dysphoria "refers to the distress that may accompany the incongruence between one's experienced or expressed gender and one's assigned gender." (39) In children, the distress "is associated with clinically significant distress or impairment in social, school, or other important areas of functioning," and among adults the distress "is associated with clinically significant distress or impairment in social, occupational or other important areas of functioning." (40) The distress those with gender dysphoria experience "is more descriptive" than gender identity disorder was in the DSM-IV and "focuses on dysphoria as the clinical problem, not identity per se." (41)

III. TRANSGENDER EMPLOYMENT LAW

For heterosexual cisgender individuals, which are "individuals who have a match between the gender they were assigned at birth, their bodies, and their personal identity," (42) there is a great deal of protection from which they benefit in the work environment. Federal and state laws clearly prohibit discrimination on the basis of race, gender, religious beliefs, national origin, and age. (43) By comparison, twenty-nine states do not protect individuals who are discriminated against because of their sexual orientation, and thirty-three states do not protect individuals who are discriminated against because of their gender identity. (44)

A. Equal Protection and Title VII

There are several ways that transgender activists and organizations have attempted to achieve equality in the workplace under current laws, including state and local disability legislation as well as federal civil rights legislation. The attempts to achieve equality without disability law have not been as effective. Activists were hopeful that they would be able to bring a suit challenging discrimination against transgender employees under Title VII of the Civil Rights Act of 1964 and the Equal Protection Clause, but in early lawsuits against employers under Title VII, courts were not receptive to that reasoning. (45) Under Title VII, it is unlawful for employers "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual" because of an individual's sex and also prohibits employers from depriving any person "employment opportunities or otherwise adversely affect [the person's] status as an employee" due to sex. (46)

The Supreme Court's decision in Price Waterhouse v. Hopkins seemed to provide transgender activists and lawyers with the foundation to ensure that transgender employees would be protected under Title VII. (47) The decision was used to challenge discrimination based on gender stereotypes. (48) In Price Waterhouse, the plaintiff was not promoted due to gendered stereotypes. (49) The court found that partners negatively described the plaintiff as "macho," saying the plaintiff "overcompensated for being a woman" and that she needed to take "a course at charm school." (50) This gender-based stereotyping was enough to show that the company had based their decision partially on the sex of the candidate. (51)

Price Waterhouse's prohibition against sex stereotyping also applies to men who fail to conform to gendered stereotypes. In Nichols v. Azteca Restaurant Enterprises, Inc., other employees of the defendant "repeatedly referred to [the male plaintiff] in Spanish and English as 'she' and 'her,'"; the employees "mocked [the plaintiff] for walking and carrying his serving tray Tike a woman,' and taunted him in Spanish and English as, among other things, a 'faggot' and a 'fucking female whore.'" (52) The Ninth Circuit found that the employer had harassed the employee because of sex, as he did not fit within the male stereotype, and that the harassment was actionable as a result. (53) In Bibby v. Philadelphia Coca Cola Bottling Co., the Third Circuit also found that men who were harassed because they did not match the gendered stereotypes could bring an action under Title VII, but the court held that it did not apply in that case because the men claimed discrimination due to sexual orientation. (54)

An expansive view is further reinforced by another Supreme Court Title VII case. In Oncale v. Sundowner Offshore Services, Inc., the Court found in favor of an employee who had been harassed by employees of the same sex. (55) The court held that "statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils," despite not being the legislative goal of Title VII. (56) However, many courts have been unwilling to take the next step. (57) Discrimination against an individual based upon gender stereotypes and individuals of the same sex is not allowed, but the consensus, until recently, has been that "nearly all federal courts have said [being transgender] is unprotected by Title VII." (58) The early Title VII cases in the Seventh Circuit, (59) Eight Circuit, (60) and Ninth Circuit (61) held that Title VII protections do not extend to transgender individuals because discrimination against them is due to gender, not sex. This is expressed in the Seventh Circuit's opinion in Ulane v. Eastern Airlines, which held:
   The phrase in Title VII prohibiting discrimination based on sex, in
   its plain meaning, implies that it is unlawful to discriminate
   against women because they are women and against men because they
   are men. The words of Title VII do not outlaw discrimination
   against a person who has a sexual identity disorder ..., (62)


After Oncale and Price Waterhouse, courts have not been as willing to hold that transgender individuals are not protected under Title VII. (63) The Sixth Circuit, Eleventh Circuit, and D.C. District Court have shown a willingness to consider protection for transgender individuals under Title VII. (64) In Smith v. City of Salem, Ohio, a lieutenant worked in the city's fire department for seven years with no incident until he was diagnosed with Gender Identity Disorder. (65) After the diagnosis, he informed his supervisors about the likelihood of making a full transition to being female, and he also began "expressing a more feminine appearance on a full-time basis." (66) The supervisor then met with the city's executive department and determined that they would attempt to force the plaintiff out by forcing him to undergo psychological evaluations with "physicians of the City's choosing" or for insubordination if the plaintiff failed to comply. (67) The plaintiff was informed of the "witch hunt" by an official and obtained legal representation. (68) After obtaining that representation, the plaintiff was suspended. (69)

The plaintiffs suit failed at the district court level, which dismissed the claims. (70) However, the district court's decision was reversed on appeal. (71) The appeals court held that the diagnosis of transsexualism did not matter in the determination of discrimination because "[s]ex stereotyping based on a person's gender non-conforming behavior is impermissible discrimination, irrespective of the cause of that behavior...." (72)

Discrimination against a transgender person on the basis of gender stereotypes was also found in Schroer v. Billington. (73) In that case, a job candidate who was considered "significantly better than the other candidates" was denied a position at the Library of Congress after revealing that the candidate was transgender before being hired. (74) The D.C. District Court held that "it is not necessary to draw sweeping conclusions about the reach of Title VII." (75) This was because "refusal to hire ... after being advised that she planned to change her anatomical sex ... was literally discrimination 'because of ... sex.'" (76)

While not a Title VII action, the Eleventh Circuit Court of Appeals has also recognized the right of transgender employees to bring an action against the government under the Equal Protection Clause. (77) The plaintiff in Glenn v. Brumbly appealed a summary judgment order after the district court held that the plaintiff could not obtain relief under 42 U.S.C. [section] 1983 for a violation of her equal protection rights under the Fourteenth Amendment. (78) The plaintiffs supervisor fired the plaintiff after she informed her supervisor that she intended to proceed with her gender transition. (79) The supervisor who terminated the plaintiffs employment stated that it was because the plaintiffs "intended gender transition was inappropriate, that it would be disruptive, that some people would view it as a moral issue, and that it would make [plaintiffs] coworkers uncomfortable." (80) The court held that "a government agent violates the Equal Protection Clause's prohibition of sex-based discrimination when he or she fires a transgender or transsexual employee because of his or her gender non-conformity." (81) The court also stated that if the case were a Title VII action, the analysis would have ended after it found the discriminatory purpose. (82)

In addition to preventing the government from discriminating against transgender employees, Macy v. Holder recently held that discrimination against transgender federal employees did qualify as discrimination based on sex. (83) However, the Equal Employment Opportunity Commission has not issued any guidance or binding adjudicatory decisions solidifying the rights of transgender employees to sue for discrimination under Title VII after the ruling, despite arguments to the contrary. (84)

B. Disability Claims

Some transgender individuals are skeptical of attempting to achieve equality in the workforce through disability employment law. (83) Disability law has been one of the most successful ways that transgender Americans have found success, regardless of the skepticism. (86) The Americans with Disabilities Act of 1990 (ADA) prohibits discrimination on the basis of disability "under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service." (87) Unfortunately, transgender individuals are specifically excluded from the ADA (in the same category as pedophiles), (88) and they are similarly excluded from the Federal Rehabilitation Act. (89) Even in the 2008 Amendments to the ADA, Congress did not address the exclusion of transgender individuals from the act. (90)

Because the federal government's statutes are often similar to state statutes, there are several states that explicitly prohibit transgender individuals from bringing a claim under disability law. (91) Even in states where there is not an explicit prohibition on transgender individuals using disability law, the courts have interpreted them in that way. (92) In Holt v. Northwest Pennsylvania Training Partnership Consortium, Inc., a Pennsylvania court held that being transsexual was not a disability under the Pennsylvania Human Relations Act. (93) Under the Pennsylvania Human Relations Act, a person '"must show that he [or she] is regarded as having a physiological disorder, cosmetic disfigurement or anatomical loss which affects the body systems' set forth in the regulations." (94) The court agreed with the circuit court in Dobre v. National Railroad Passenger Corporation 5 that, because the plaintiff did not "suffer[] from any organic disorder of the body" and because the status "did not limit any major life activities," then transsexualism did not constitute a disability. (96) The plaintiff also could not claim that transsexualism was a perceived handicap under the PHRA since she did not allege it "affects any bodily function or limits her major life activities." (97)

There are multiple states and cities that allow transgender individuals to use disability law to prevent workplace discrimination. (98) In "Connecticut, Florida, Illinois, Massachusetts, New Hampshire, New Jersey, New York, and Washington State, as well as the city of Chicago and the District of Columbia" disability discrimination laws allow for transgender discrimination claims. (99) Many of those disability statutes "provide a broader definition of disability." (100) An example of those broader statutes used to protect transgender workers can be found in Enriquez v. West Jersey Health Systems. (101) In that case, the Superior Court of New Jersey held that the West Jersey Health Systems violated the New Jersey Law Against Discrimination (LAD). (102) After almost a year of employment as a medical director, the plaintiff began transitioning from a male to female by removing facial hair, waxing her eyebrows, growing breasts, and growing long hair. (103) The plaintiffs co-workers commented on her change of appearance with remarks such as "stop all this and go back to your previous appearance!" (104) One month after being diagnosed with Gender Identity Disorder, the plaintiff was given a letter that terminated her employment. (105) While the LAD statute "does not require proof that some major life activity was impaired, plaintiff must suffer a disability." (106) The court held that "gender dysphoria can be a handicap under the LAD" (107) and remanded the case to the trial court to prove the diagnosis. (108)

IV. FROM THIS POINT FORWARD

Thirty-one states have not made a decision regarding transgender workplace rights, (109) and workplace protections only exist for transgender workers in seventeen states. (110) The changes occurring right now in the political landscape, as well as the change in the psychological landscape, present two possible scenarios for what can, and should, happen in the future.

A. The House Passes ENDA

The Employment Non-Discrimination Act (ENDA) that has passed the Senate would greatly increase the protections that transgender employees have. ENDA prevents discrimination against employees "because of such individual's actual or perceived sexual orientation or gender identity." (111) Similar to racial insults and discrimination, increasing the costs of insulting and discriminating against transgender individuals would decrease the frequency of the insults. (112) This, combined with the remedies under the statute, would be a step forward in the fight against transphobia and homophobia for gender and sexual minorities in the United States. ENDA shares several similarities with Title VII, and the current version has evolved from earlier versions that merely included "sexual orientation." (113) The legislation would apply to all private and public employers, but there are exemptions under the law for employers that have less than fifteen employees, (114) religious employers, (115) the armed forces, (116) and for "[vjolunteers who receive no compensation." (117) There is also an exemption for government's preference for veterans. (118)

Transgender individuals would have protection from discrimination, including "discrimination in hiring, discharge, promotion, layoff and recall, compensation and fringe benefits, classification, training, apprenticeship, referral, union membership, and other 'terms, conditions, or privileges of employment.'" (119) Employers under the act would be prohibited from "limit[ing], segregating], or classifying] the employees or applicants for employment" (120) in a manner that "would deprive or tend to deprive" (121) people of employment or that would "adversely affect" (122) them because of their "actual or perceived sexual orientation or gender identity." (123)

Unlike the Title VII statute, ENDA also explicitly prohibits employers from discriminating against individuals for associating with "an individual based on [that individual's] actual or perceived sexual orientation or gender identity." (124) This provision is similar to "provision[s] of the Americans with Disabilities Act ('ADA') and case law under title VII." (125) The perceived sexual orientation language is intended to ensure that the discrimination prohibited under ENDA would "reach all discriminatory actions of an employer, regardless of whether the assumptions upon which the employer bases his or her discrimination are accurate." (126) Prohibiting discrimination against individuals for their associations must "be construed consistently with ... jurisprudence developed under the ADA and title VII." (127) The biggest difference between Title VII and ENDA is that only disparate treatment claims can be brought under the act. (128) This makes claims harder under ENDA than under Title VII because "a plaintiff would have to prove that an employer intended to discriminate, a higher evidentiary threshold." (129) Senate markups of the bill led to [section] 10(d), which forbids double recovery under Title VII and ENDA. (130)

The passage of END A by Congress would bring in much greater protections and remedies for transgender individuals in the workplace. While even the current prohibitions against discrimination in the workplace do not prevent all the forms of discrimination that they cover, they provide those who have been discriminated against a way to recover for their discrimination. (131) Passing ENDA would provide transgender workers with a clear nationwide prohibition of discrimination, rather than requiring them to rely upon their respective courts to provide favorable interpretations of Title VII or discrimination law.

B. ENDA Fails to Pass

Even if the House of Representatives fails to pass ENDA, the changes in the DSM-5 give lawyers advocating on behalf of transgender employees a strong new tool. The DSM-5 is "primarily designed to assist clinicians in conducting clinical assessment, case formulation, and treatment planning," but the APA recognizes that it is "also used as a reference for the courts and attorneys in assessing the forensic consequences of mental disorders." (132) The DSM-5 also makes it clear that only trained individuals should apply it. (133) Despite that, editions of the DSM are cited over 5,500 times in cases and 320 times in legislation, (134) and it is expected to have an impact in many different legal areas. (135) The change in the DSM-5 towards transgender individuals should provide a very important impact in the fight for transgender equality in the workplace.

Despite the calls from transgender advocates, (136) the workgroup and the APA kept the diagnosis because "individuals need a diagnosis," and removing it "would jeopardize access to care." (137) Despite that reasoning, transgender employees should be able to use the new diagnosis of gender dysphoria to continue to claim discrimination on the basis of sex or disability even though it seems that even fewer transgender individuals would now be diagnosed with gender dysphoria than under gender identity disorder. Under modern interpretations of Title VII, courts have been much more likely to accept the reasoning that sex and gender identities were intended to be protected. (138) Many courts have side-stepped the issue of transgender rights under Title VII by "pok[ing] holes" in the transgender employee's claim. (139)

Using the reasoning from Oncale and Price Waterhouse combined with the newest information in psychology and biology, (140) it is much easier to argue in favor of transgender employees who have been victims of discrimination. Many of these transgender employees have been fired for failing to conform to gender stereotypes, which is actionable under Price Waterhouse. Oncale held that "statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils." (141) This helps transgender advocates even more because discrimination due to sex reassignment surgery, gender transition, and gender noncompliance can be argued more easily as discrimination against an individual because of sex. These arguments will require information presented by sources, such as the DSM and psychologists who focus on gender, to convince the court that previous cases before Price Waterhouse and Oncale had an incorrect view of the fluidity of gender and sex and should not be followed.

Additionally, the diagnosis under the new DSM should not affect transgender plaintiffs' success under disability law. The decision in Enriquez v. West Jersey Health Systems shows how transgender plaintiffs can still be successful without a diagnosis, and it further evidences how recent decisions are more receptive to arguments put forward by transgender activists. (142) The court echoed previous opinions stating that sex discrimination "includes gender discrimination so as to protect plaintiff from gender stereotyping and discrimination for transforming herself from a man to a woman." (143) The court's opinion also has a much more liberal view regarding the difference between sex and gender, which has been followed in other cases focusing only on sex discrimination. (144) The DSM makes it much easier to argue that point by showing that there is a consensus among psychological researchers regarding the fluidity of sex and gender. (145) More states continue to pass laws aimed at ending discrimination against transgender individuals in the workplace and within society as a whole, (146) but until a national bill like ENDA is proposed, the newest changes in the DSM-5 will help courts find that employers are discriminating against transgender individuals because of sex or due to disability.

CONCLUSION

Transgender individuals face some of the harshest and most far-reaching employment discrimination of any group of Americans, but they do not have the protections that most cisgender individuals enjoy. Nevertheless, transgender individuals may still remain hopeful. ENDA continues to be the most feasible way to obtain a complete solution to workplace discrimination against transgender Americans. While the bill is unlikely to pass in the House this session, it will likely be passed in the immediate future. Additionally, the change in the wording of the DSM-5 to "gender dysphoria" is less discriminatory and will likely be beneficial legally and socially in the long-term. This change is something that cannot be held up for political reasons; instead, it is a change that can help push for Title VII's sexual discrimination protections to include discrimination against transgender individuals. The new modifications to the DSM-5 will continue the success that transgender plaintiffs have had in using disability law to remedy discrimination. Hopefully, these changes will move society towards one where all groups are protected from workplace discrimination.

(1.) For purposes of this note, I will be using the term "transgender" according to the definition used by the DSM-5: "Transgender refers to the broad spectrum of individuals who transiently or persistently identify with a gender different from their natal gender." Am. Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders 451 (5th ed. 2013) [hereinafter DSM-5]. This umbrella definition inevitably includes many that do not identify as transgender, such as intersex or genderqueer individuals. I use this definition in order to make my writing as clear as possible regarding the group as a whole. I recognize that many within the community who fall within the umbrella term "transgender" do not identify as such and might object to being identified in that way, and I apologize in advance for that.

(2.) See infra Part I.

(3.) See H.R. 2015, 110th Cong. (2007); H.R. 3017, 111th Cong. (2009); S. 1584, 111th Cong. (2009); H.R. 1397, 112th Cong. (2011); S. 811, 112th Cong. (2011).

(4.) Employment Non-Discrimination Act of 2013, S. 815, 113th Cong. (2013), available at https://www.govtrack.us/congress/bills/! 13/s815/text/is [hereinafter ENDA].

(5.) Id. [section] 2(1).

(6.) Igor Bobic, Boehner Calls ENDA 'Unnecessary,' Talking Points Memo (Nov. 14, 2013, 12:02 PM), http://talkingpointsmemo.com/livewire/boehner-calls-enda-unnecessary.

(7.) Chris Johnson, LGBT Workers Caught in Standoff as ENDA Blocked, Wash. Blade (Nov. 20, 2013), http://www.washingtonblade.com/2013/ll/20/lgbt-workers-caught-instandoff-as-enda-blocked/.

(8.) See Senate Vote on ENDA Remarkably Close to Public Sentiment, Gallup (Nov. 13, 2013, 6:17 PM), http://pollingmatters.gallup.com/2013/ll/senate-vote-on-enda-remarkablyclose-to.html.

(9.) John M. Grohol, DSM-5 Released: The Big Changes, Psych Central (May 19, 2013), http://psychcentral.com/blog/archives/2013/05/18/dsm-5-released-the-big-changes/.

(10.) Gender Dysphoria, Am. PSYCHIATRIC Ass'n 1 (2013), http://www.dsm5.org/ Documents/Gender%20Dysphoria%20Fact%20Sheet.pdf.

(11.) Id.

(12.) See G. DeCuypere, G. Knudson & W. Bockting, Response of the World Professional Association for Transgender Health to the Proposed DSM 5 Criteria for Gender Incongruence, World Prof. Ass'n for Transgender Health, http://www.wpath.org/uploaded_files/140/files/WPATH%20Reaction%20to%20the%20pro posed%20DSM%20-%20Final.pdf (last visited May 21, 2014); Kelley Winters, GID Reform in the DSM-5 and ICD-1I: A Status Update, GID Reform Weblog (June 13, 2013), http://gidreform.wordpress.com/2013/06/13/gid-reform-in-the-dsm-5-and-icd-l 1-a-statusupdate/.

(13.) Jamie M. Grant et al., Injustice at Every Turn: A Report of the National Transgender Discrimination Survey, NAT'L GAY & LESBIAN TASK FORCE 51 (2011), http://www.thetaskforce.org/downloads/reports/reports/ntds_full.pdf.

(14.) DSM-5, supra note 1, at 458.

(15.) Grant et al., supra note 13.

(16.) Preventing Transgender Suicide, NAT'L CENTER FOR TRANSGENDER EQUALITY 1 (Sept. 2010), http://transequality.org/PDFs/NCTE_Suicide_Prevention.pdf; Grant et al., supra note 13, at 2.

(17.) Grant et al., supra note 13, at 2.

(18.) Id. at 4.

(19.) Id. at 3.

(20.) Id.

(21.) Id. at 51.

(22.) Id. at 53.

(23.) Id.

(24.) DSM-5, supra note 1, at 6.

(25.) Am. Psychiatric Ass'n, Frequently Asked Questions, http://www.dsm5.org/about/ Pages/faq.aspx (last visited May 21, 2014).

(26.) Id.

(27.) Id.

(28.) Am. Psychiatric Ass'n, American Psychiatric Association Board of Trustees Approves DSM-5: Diagnostic Manual Passes Major Milestone Before May 2013 Publication, DSM Facts (Dec. 1, 2012), http://dsmfacts.org/wpcontent/uploads/ 2012/12/DSM-5-BOT-Vote-News-Release-12-1-12.pdf.

(29.) Am. Psychiatric Ass'n, supra note 25.

(30.) Am. Psychiatric Ass'n, Gender Dysphoria, DSM-5 Dev. (2013) http://www.dsm5.org/Documents/Gender%20Dysphoria%20Fact%20Sheet.pdf.

(31.) Id. at 1.

(32.) Id. at 2.

(33.) Id. at 1.

(34.) Id.

(35.) Am. Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders 576 (4th ed. text rev. 2000).

(36.) Id.

(37.) Id.

(38.) Id.

(39.) DSM-5, supra note 1, at 451.

(40.) Id. at 452, 453.

(41.) Id. at 451.

(42.) Kristen Schilt & Laurel Westbrook, Doing Gender, Doing Heteronormativity: "Gender Normals." Transgender People, and the Social Maintenance of Heterosexuality, 23 Gender & SOC'Y 440,461 (2009).

(43.) E.g., 42 U.S.C. [section] 2000e-2 (2011); Ala. Code [section] 25-1-22 (2007); Ala. Code [section] 45-8- 120.19(2005).

(44.) Employment Non-Discrimination Act, Am. Civ. Liberties union, https;//www.aclu.org/hiv-aids_lgbt-rights/employment-non-discrimination-act (last visited May 21, 2014).

(45.) Chris Geidner, Transgender Breakthrough: EEOC Ruling that Gender-Identity Discrimination is Covered by Title VII is a "Sea Change" that Opens the Doors to Employment Protection for Transgender Americans, Metro Weekly (April 23, 2012, 10:38 PM), http://www.metroweekly.com/news/?ak=7288 ("Although claims of transgender discrimination were treated with 'disdain' in those early days of Title VII interpretation, ... two Supreme Court cases that followed dramatically changed the views of lower courts on the issue.").

(46.) 42 U.S.C. [section] 2000e-2(a)(l)-(2) (2011).

(47.) Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).

(48.) Id.

(49.) Id.

(50.) Id. at 235.

(51.) Id. at 255.

(52.) Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864, 870 (9th Cir. 2001).

(53.) Id. at 875.

(54.) Bibby v. Phila. Coca Cola Bottling Co., 260 F.3d 257 (3d Cir. 2001).

(55.) Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998).

(56.) Id. at 79.

(57.) See, e.g., Ulane v. E. Airlines, 742 F.2d 1081 (7th Cir. 1984); Sommers v. Budget Mktg., Inc., 667 F.2d 748 (8th Cir.1982).

(58.) Schroer v. Billington, 577 F. Supp. 2d 293, 305 (D.D.C. 2008).

(59.) See, e.g., Ulane, 742 F.2d at 1085.

(60.) See, e.g., Sommers, 667 F.2d 748.

(61.) See, e.g., Holloway v. Arthur Andersen & Co., 566 F.2d 659 (9th Cir. 1977).

(62.) Ulane, 742 F.2d at 1085.

(63.) See Smith v. City of Salem, Ohio, 378 F.3d 566 (6th Cir. 2004); Glenn v. Brumby, 663 F.3d 1312(11th Cir. 2011); Schroer, 577 F. Supp. 2d 293.

(64.) See Smith, 378 F.3d 566; Glenn, 663 F.3d 1312; Schroer, 577 F. Supp. 2d 293.

(65.) Smith, 378 F.3d at 568.

(66.) Id.

(67.) Id. at 569.

(68.) Id.

(69.) See id.

(70.) Id. at 568.

(71.) Id.

(72.) Id.

(73.) Schroer, 577 F. Supp. 2d at 308.

(74.) Id. at 295-300.

(75.) Id. at 307-08.

(76.) Id. at 308.

(77.) See Glenn, 663 F.3d 1312-17.

(78.) Id. at 1313.

(79.) Id. at 1313-15.

(80.) Mat 1314.

(81.) Id. at 1320.

(82.) Id. at 1321.

(83.) Macy v. Holder, EEOC DOC 0120120821, 2012 WL 1435995 (Apr. 20, 2012).

(84.) See Cody Perkins, Comment, Sex and Sexual Orientation: Title VII After Macy v. Holder, 65 Admin. L. Rev. 427,430 (2013).

(85.) Transgender Legal Issues, Gay & Lesbian ADVOCATES & DEFENDERS, 5-6 (2014).

(86.) See Daniella A. Schmidt, Bathroom Bias: Making the Case for Trans Rights Under Disability Law, 20 MlCH. J. GENDER & L. 155 (2013); Zach Strassburger, Note, Disability Law and the Disability Rights Movement for Transpeople, 24 YALE J.L. & FEMINISM 337 (2012).

(87.) 29 U.S.C. [section] 794(a) (2012).

(88.) 42 U.S.C. [section] 12211(b)(1) (2011).

(89.) 29 U.S.C. [section] 705(20)(F)(i) (2012).

(90.) See ADA Amendments Act of 2008, Pub. L. No. 110-325, [section]4, 122 Stat. 3553 (2008).

(91.) See Schmidt, supra note 86, at 170-71 ("In addition to the federal disability statutes, ten states and Puerto Rico have explicit statutory exclusions that prevent trans people from accessing the benefits of the state's anti-discrimination disability laws.").

(92.) See, e.g., Holt v. Nw. Pa. Training P'ship Consortium, Inc., 694 A.2d 1134, 1139 (Pa. Commw. Ct. 1997).

(93.) Id.

(94.) Id.

(95.) Dobre v. Nat'l R.R. Passenger Corp. ("Amtrak"), 850 F. Supp. 284, 289 (E.D. Pa. 1993).

(96.) Holt, 694 A.2d at 1139.

(97.) Id.

(98.) Schmidt, supra note 86, at 172.

(99.) Id.

(100.) S. Elizabeth Malloy, What Best to Protect Transsexuals from Discrimination: Using Current Legislation or Adopting a New Judicial Framework, 32 Women's Rts. L. Rep. 283, 294 (2011).

(101.) Enriquez v. W. Jersey Health Sys., 777 A.2d 365 (N.J. Super. Ct. App. Div. 2001).

(102.) Id.

(103.) Id. at 367-68.

(104.) Id. at 368.

(105.) Id.

(106.) Id. at 376.

(107.) Id. at 380.

(108.) Mat 380.

(109.) Schmidt, supra note 86, at 174.

(110.) Ed O'Keefe, Senate Votes to Ban Discrimination Against Gay and Transgender Workers, Wash. Post (November 7, 2013), http://www.washingtonpost.com/politics/senateset-to-approve-gay-rights- bill/2013/11/07/05717e4a-47c 1-11 e3 -a 1963544a03c2351_story.html.

(111.) ENDA, supra note 4, [section] 4(a)(2).

(112.) See Richard Delgado, Words That Wound: A Tort Action for Racial Insults, Epithets, and Name-Calling, 17 Harv. C.R.-C.L. L. REV. 133, 148 (1982) ("Increasing the cost of racial insults thus would certainly decrease their frequency. Laws will never prevent violations altogether, but they will deter 'whoever is deferrable."').

(113.) Jody Feder & Cynthia Brougher, Sexual Orientation and Gender Identity Discrimination in Employment: A Legal Analysis of the Employment Non-Discrimination Act (ENDA), Cong. Res. Service. 1 (2013), https://www.fas.org/sgp/crs/misc/R40934.pdf.

(114.) ENDA, supra note 4, [section] 3(a)(5)(A) (Employer means "a person engaged in an industry affecting commerce ... who has 15 or more employees ... for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such a person....").

(115.) Id. [section] 6(a).

(116.) Id. [section] 7(a)(1).

(117.) Feder & Brougher, supra note 113, at 2.

(118.) ENDA, supra note 4, [section] 7(b).

(119.) Feder & Brougher, supra note 113, at 2.

(120.) ENDA, supra note 4, [section] 4(a)(2).

(121.) Id.

(122.) Id.

(123.) Id.

(124.) Id. [section] 4(e).

(125.) S. Rep. No. 113-105, at 7 (2013), available at http://beta.congress.gov/113/crpt/ srpt105/CRPT-113srpt 105.pdf.

(126.) Id.

(127.) Id.

(128.) ENDA, supra note 4, [section] 4(g).

(129.) Feder & Brougher, supra note 113, at 2.

(130.) Id. at 3.

(131.) Equal Employment Opportunity Commission, EEOC Reports Nearly 100,000 Job Bias Charges in Fiscal Year 2012: Commission Obtains $365 Million for Victims of Workplace Discrimination; Reduces Charge Inventory by 10 Percent for Second Consecutive Year (Jan. 28, 2013), http://eeoc.gov/eeoc/newsroom/release/l-28-13.cfm ("The year-end data... show that retaliation (37,836), race (33,512) and sex discrimination (30,356), which includes allegations of sexual harassment and pregnancy were, respectively, the most frequently filed charges.... [T]he agency obtained the largest amount of monetary recovery from private sector and state and local government employers through its administrative process - $365.4 million.").

(132.) DSM-5, supra note 1, at 25.

(133.) Id.

(134.) Ralph Slovenko, The DSM in Litigation and Legislation, 39 J. Am. Acad. Psychiatry & L. 6, 6 (2011), available at http://www.jaapl.Org/content/39/l/6.flill. pdf+html.

(135.) See id.

(136.) See, e.g., DeCuypere, Knudson & Bockting, supra note 12.

(137.) Am. Psychiatric Ass'n, supra note 30, at 2.

(138.) See Schroer, 424 F. Supp. 2d at 313 (denying employer's motion to dismiss because the employee could prove facts to support the claim that the employer refused to hire her because of her sexual identity, thus discriminating "because of ... sex").

(139.) See generally Mary Kristen Kelly, Note, (Trans)forming Traditional Interpretations of Title VII: "Because of Sex" and the Transgender Dilemma, 17 DUKE J. GENDER L. & POL'Y 219, 230(2010).

(140.) See generally DSM-5, supra note 1, at 451-59 (discussing the science of gender dysphoria).

(141.) Oncale, 523 U.S. at 79.

(142.) See, e.g., Enriquez, 777 A.2d 365.

(143.) Id. at 373.

(144.) Glenn, 663 F.3d at 1312.

(145.) See DSM-5, supra note 1, at 451 ("The area of sex and gender is highly controversial and has led to a proliferation of terms whose meanings vary over time and within and between disciplines.").

(146.) See Proposed State Law Would Ban Discrimination Based on Gender Identity, CBS N.Y. (Feb. 23, 2013, 1:29 PM), http://newyork.cbslocal.com/2013/02/23/proposed-statelaw-would-ban-discrimination-based- on-gender-identity/; see also Governor Signs Gender Identity Nondiscrimination Act: Protects Transgender Individuals from Discrimination, ST. DEL. (June 19, 2013), http://news.delaware.gov/2013/06/19/govemor-signs-gender-identitynondiscrimination-act/.

Matthew Bailey, J.D. Candidate, University of Alabama School of Law, 2015; BA. University of Alabama, 2012.1 would like to thank my family and friends for their support.
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Title Annotation:proposed Employment Non-Discrimination Act
Author:Bailey, Matthew
Publication:Law and Psychology Review
Date:Jan 1, 2014
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