Macy v. Holder, the EEOC and ENDA: The State of Employment Law for Transgender Americans

The Equal Employment Opportunity Commission’s Macy v. Holder decision, handed down on April 20, 2012, stands out as a watershed moment in the struggle against discrimination against transgender Americans. The EEOC’s unanimous, bipartisan decision held that anti-transgender bias was sex discrimination under Title VII of the Civil Rights Act of 1964.

This ruling stands as the codification of a decade’s worth of federal cases upholding transgender rights under this section of the landmark civil rights measure. Among them are Smith v. City of Salem in the Sixth Circuit (2004), Schroer v. Billington from the U.S. District Court for the District of Columbia (2008) and Glenn v. Brumby in the Eleventh Circuit in Atlanta (2011). The decision points out that Title VII prohibits all discrimination based on sex in hiring and personnel decisions concerning federal employees:

As used in Title VII, the term “sex” “encompasses both sex-that is, the biological differences between men and women- and gender.”… When an employer discriminates against someone because the person is transgender, the employer has engaged in disparate treatment “related to the sex of the victim.”

This two-pronged definition of sexual discrimination now stands as the official federal standard. A recent national survey of LGBT Americans indicates this change is long overdue. The National Transgender Discrimination Survey was conducted in 2011 by the National Center for Transgender Equality (the group that brought the Macy matter to the EEOC) and the National LGBTQ Task Force. The numbers this poll revealed are stark ones that give pause. According to the 6,400 transgender and gender non-conforming people surveyed, 63% reported serious acts of discrimination. Among them are: • Loss of job due to bias • Eviction due to bias • School bullying/harassment so bad the individual dropped out • Teacher bullying • Physical assault due to bias • Sexual assault due to bias • Homelessness because of gender identity/expression • Loss of relationship with partner or children due to gender identity/expression • Denial of medical service due to bias • Incarceration due to gender identity/expression.

Of these respondents, 23% experienced at least three of these events, a circumstance referred to as a catastrophic level of discrimination. The survey results were released about the same time as the Macy decision, indicating a need for more public awareness of the rights of transgender Americans. That awareness does not seem to be widespread.

The problem may lay with a lack of understanding of current laws covering the LGBT community. Currently 17 states, the District of Columbia and Puerto Rico have workplace protections for people in these groups. They cover over 50% of all Americans. Two of the 17 states only protect people by sexual orientation, not gender identity. Despite the federal protections, the network of antidiscrimination laws appears incomplete at present.

An attempt has been made in several Congresses to rectify the varying levels of anti-discrimination laws in the states. First introduced in 1994 and reintroduced in every Congress but one since, the Employment Non-Discrimination Act (ENDA) would prohibit all employment discrimination based on sexual orientation or gender identity. The measure would apply to any business with at least 15 employees.

ENDA has found its fortunes buffeted by various political considerations, the limiting of the measure to businesses with more than 15 workers being only the most obvious. In 2007, Democrats who had just gained control of both houses of Congress reintroduced the measure as promised in the previous year’s campaign. At the time, House Democrats removed transgender protections from the bill because the votes were not there to pass a more all-inclusive measure. President George W. Bush’s threat to veto the measure dictated that the bill have as much bipartisan support as possible. Although ENDA passed in the House, the bill died in the Senate. In 2013, by contrast, the Senate managed to pass ENDA but the House did not act on it, deleting it from a defense authorization bill in December 2014.

In the immediate aftermath of the Supreme Court decision legalizing marriage equality nationwide, the need for ENDA may not appear obvious. The EEOC does not see the current situation in that way. On its website the Commission admits that the Civil Rights Act of 1964 does not explicitly forbid discrimination on the basis of sexual orientation or gender identity but that federal courts up to and including the Supreme Court have interpreted Title VII as covering them. It adds a warning that ENDA is still necessary because there is still a possibility that a future Supreme Court decision could reverse federal protections for transgender employees. ENDA’s supporters appear likely to reintroduce it in Congress but its chances of passing are uncertain, leaving the uncertainty seen by the EEOC in place for the time being.

LIST OF SOURCES Diehm, Jan, and Katy Hall, “Employment Non-Discrimination Act 2013: the ‘T’ in LGBT Protections.” Huffington Post, June 11, 2013.

National Center for Transgender Equality, “New Title VII and EEOC Rulings Protect Transgender Employees.” Transgender Law Center, 2014.

U.S. Equal Employment Opportunity Commission, Macy v. Holder. Appeal No. 0120120821. Agency No. ATF-2011-00751. April 20, 2012.

Louis Burklow (aka, Hollywood Country Boy), Senior Staff Writer, Phoenix Genesis

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