THE SUMMIT FOR WORKERS RIGHTS National Employment Lawyers Association 2013 Annual Convention Denver, Colorado June

26-29, 2013 Panel Presentation EMERGING ISSUES TODAYS BIG FIGHT IN CIVIL RIGHTS: SEXUAL ORIENTATION AND GENDER IDENTITY DISCRIMINATION Subtopic: Gender Identity and Sex Discrimination Jill R. Gaulding GENDER JUSTICE 550 Rice Street Saint Paul, MN 55103 651.789.2090 jill.gaulding@genderjustice.us www.genderjustice.us @genderjustice Todays panel presentation focuses on the rights of LGBT employees: Are they protected from discrimination on the basis of sexual orientation or gender identity? If so, how, exactly? In my segment of the presentation, I will focus on the rights of transgendered1 employees, while also considering the implications of that emerging issue on some long-standing issues within sex discrimination law generally. The materials below are presented in outline form, for ease of reference, and organized into two parts: the good news and the bad news. A preview: The good news is that the law increasingly recognizes the right of transgendered employees to be free from discrimination in the workplace. This expansion of rights for trans employees stems largely from courts adoption of a broader understanding of what it means to discriminate on the basis of sex or because of sex.2 This broader understanding is itself good

See below for a discussion of terminology like transgendered and transsexual. While acknowledging that some advocates prefer other usages, I use trans here as a short form for either transgendered or transsexual.
1 2

Note: I do not address in this presentation the possibility that trans employees could be protected under the provisions of disability law. The Americans with Disabilities Act expressly excludes transvestism, transsexualism, and gender identity disorders not resulting from physical impairments from the definition of disability, treating these as the apparent equivalent of compulsive gambling,

news. Like society at large, courts have become better informed about concepts of sex, gender, and sexual orientation and the relationship(s) between these things (if any). As a result, the law is becoming more effective at creating equal opportunity for all employees, regardless of who they are, how they identify, or who they love. The bad news is that the hard work weve done to advance LGBT rights including the long-standing battle on the federal level to pass an inclusive Employment Non-Discrimination Act or ENDA risks holding back or even reversing some of the progress courts have made regarding sex discrimination generally. The takeaway: Noticing that the good news is paired with some bad news does not mean that were doing it wrong. Sometimes progress is like that three steps forward, one step back, but ever onward. But when we have the opportunity to make strategic choices in how we bring our cases or argue for new legislation, we should do so. I make some suggestions below regarding what I think are better and worse choices, and of course I welcome your thoughts or suggestions, either during the presentation or afterwards. THE GOOD NEWS 1. We are Developing a More Sophisticated Understanding of Sex, Gender, and Sexual Orientation 1.1. Key terms (see generally http://geneq.berkeley.edu/lgbt_resources_definiton_of_terms for one possible set of definitions, from which these are drawn): 1.1.1. Sex refers to a biological or medical characterization designating a certain combination of gonads, chromosomes, external gender organs, secondary sex characteristics and hormonal balances. 1.1.2. Gender or gender identity is a socially-constructed system of classification that ascribes to people a set of qualities or traits labeled masculine or feminine. 1.1.3. Sexual orientation refers to the direction(s) of one's sexual (erotic) attraction. 1.2. A traditional view links these things rigidly together, and in the process makes them seem quite simple: Being a man/male means one will have masculine traits and be sexually attracted to women; being a woman/female means one will have feminine traits

kleptomania, or pyromania or illegal drug use. See 42 U.S.C. 12211. These express exclusions were not modified by the Americans with Disabilities Amendment Act of 2008. But see Part 2.4.3 below. 2

and be sexually attracted to men. You are either Ward Cleaver or June Cleaver. (Id say take your pick, but in this view, its definitely not a choice.)3 1.3. A more sophisticated understanding admits that things are actually more complicated: 1.3.1. Sex is not always obvious or binary (witness individuals identified as intersex). Because the markers for sex can point in different directions (e.g. female external gender organs in a person with XY chromosomes), sex is arguably socially constructed rather than a medical fact. 1.3.2. Gender is even more obviously socially constructed witness the differences across time and cultures in what is considered masculine or feminine. 1.3.3. People claim a great many varieties of sexual orientation too many to list here. 1.3.4. There are, in fact, no necessary links between sex, gender, and sexual orientation. 1.3.4.1. Personal examples: I am classed as a woman and yet I cant/wont do lipstick or purses; my spouse, classed as a man, is lousy at strong and silent. 1.3.4.2. For an entertaining general discussion, see this video http://www.youtube.com/watch?v=xXAoG8vAyzI (entitled Human Sexuality is Complicated though it covers sex, gender, and sexual orientation). The video is by the VlogBrothers see http://en.wikipedia.org/wiki/VlogBrothers.4 Key point: There are no nice shiny boxes, or if there are shiny boxes, there are an infinite number of them 1.3.4.3. For an entertaining dissection of research purporting to show necessary links between sex and gender (i.e., the notion that men are from Mars and women from Venus; only men are good at math; women talk more than men; and so forth), see CORDELIA FINE, DELUSIONS OF GENDER: HOW OUR MINDS, SOCIETY, AND NEUROSEXISM CREATE DIFFERENCE (2010), reviewed at http://cordeliafine.com/delusions_of_gender.html. 1.4. On being transgendered or transsexual: 1.4.1. These terms can only be understood if we abandon the traditional view that sex and gender are always rigidly linked. 1.4.2. Both transgender and transsexual can refer to people whose gender identity does not match (according to the traditional view) the sex assigned to them.
For those under 40, the Cleavers are the family featured in the classic sit-com Leave It to Beaver. My apologies for the White, Christian, abled, native-born, middle-class-centric nature of Ward and June as gender guideposts.
3 4

If you identify as a Nerd Fighter, DFTBA. 3

1.4.2.1.

Trans* or trans can be a short form.

1.4.2.2. Cis or cisgender refers to the opposite people whose gender identity does match (according to the traditional view) the sex assigned to them. Ward and June Cleaver are cisgender. Being cis is the unmarked, culturallyprivileged norm.5 1.4.3. Per the Berkeley Gender Equity Resource Center (http://geneq.berkeley.edu/lgbt_resources_definiton_of_terms): 1.4.3.1. Transsexual refers to a person who experiences a mismatch of the sex they were born as and the sex they identify as. A transsexual sometimes undergoes medical treatment to change his/her physical sex to match his/her sex identity through hormone treatments and/or surgically. Not all transsexuals can have or desire surgery. 1.4.3.2. Transgender people are those whose psychological self ("gender identity") differs from the social expectations for the physical sex they were born with. For example, a female with a masculine gender identity or who identifies as a man. 1.4.3.3. [Some people also use transgender as an] umbrella term for transsexuals, cross-dressers (transvestites), transgenderists, gender queers, and people who identify as neither female nor male and/or as neither a man or as a woman. 1.4.3.4. But note: some people object to the use of the term transgender as an umbrella term. See, for discussion, The Death of the Transgender Umbrella, by Mercedes Allen: http://www.bilerico.com/2011/06/the_death_of_transgender.php?utm_source= front_page&utm_medium=best_of_box&utm_campaign=Best_Of 1.4.3.5. See also http://kinseyconfidential.org/transgender-genderqueer-cisgenderterms/. 1.5. For decades, most courts accepted without question the traditional view of sex, gender, and sexual orientation, and they assumed that Congress had this view in mind when it passed laws like Title VII, which bar discrimination because of sex. 1.5.1. Example: The 9th Circuit rejected claims brought by male and female homosexuals because Title VII did not apply:
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If cis and trans are properly understood as binary categories, then I would be classed as cis; if they exist on a spectrum, I fall toward the cis side. As such, I must recognize that I have inherent limitations fully understanding the experiences of trans individuals or conveying the views or goals of the trans rights movement. With those limitations in mind, I strive as an advocate not to situate trans people as a means to an end or an intellectual curiosity but [rather to consider] the well-being of trans people as an end in itself. PAISLEY CURRAH, RICHARD M. JUANG & SHANNON PRICE MINTER, TRANSGENDER RIGHTS, at xxii (Paisley Currah et al. eds., 2006). 4

The cases interpreting Title VII sex discrimination provisions agree that they were intended to place women on an equal footing with men. Giving the statute its plain meaning, this court concludes that Congress had only the traditional notions of "sex" in mind. Later legislative activity makes this narrow definition even more evident. Several bills have been introduced to amend the Civil Rights Act to prohibit discrimination against "sexual preference." None havebeen enacted into law. Congress has not shown any intent other than to restrict the term "sex" to its traditional meaning. Therefore, this court will not expand Title VII's application in the absence of Congressional mandate. The manifest purpose of Title VII's prohibition against sex discrimination in employment is to ensure that men and women are treated equally, absent a bona fide relationship between the qualifications for the job and the person's sex. De Santis v. Pacific Tel. & Tel. Co., 608 F.2d 327, 329-32 (9th Cir. 1979) (quoting Holloway v. Arthur Andersen & Co., 566 F.2d 659, 662-63 (9th Cir. 1977), a case rejecting the Title VII claim of a transgender employee). 1.5.2. For similarly restrictive reasoning, see Ulane v. E. Airlines, Inc., 742 F.2d 1081, 1084 (7th Cir. 1984) and Sommers v. Budget Mktg., Inc., 667 F.2d 748, 749-50 (8th Cir. 1982). Per Ulane, the language of Title VII can only be understood to prohibit discrimination against women because they are women and against men because they are men. 742 F.2d at 1085. 1.5.3. According to these early decisions, Title VIIs only goal is to put June Cleaver on an equal footing with Ward Cleaver, by barring discrimination against her as a woman, because she is a woman. These courts thought that Title VII, as written, could not possibly bar an employer from discriminating against June because she is in love with Jane or has transitioned to being John. 1.6. Once courts began to abandon the traditional view of sex, gender, and sexual orientation, however, they began to rethink this restrictive interpretation of what it means to discriminate because of sex. 2. Federal Law Increasingly Recognizes Rights for Trans Employees 2.1. To be clear: the battle is not yet won; far too many courts continue to permit discrimination against trans employees. See, e.g., Etsitty v. Utah Transit Auth., 502 F.3d 1215, 1221-22 (10th Cir. 2007) (rejecting Title VII claim of trans employee). 2.2. But the victories are piling up; in recent years, many federal courts have ruled favorably on transgender plaintiffs Title VII claims.

2.2.1. Federal district courts led the way as early as 2001: 2.2.1.1. Doe v. United Consumer Financial Services, 2001 WL 34350174 at *3-5, 2001 U.S. Dist. LEXIS 25509 (N.D. Ohio 2001); 2.2.1.2. Tronetti v. TLC Healthnet Lakeshore Hosp., 2003 WL 22757935 at *4, 2003 U.S. Dist. LEXIS 23757 (W.D.N.Y. 2003). 2.2.2. In 2004, the Sixth Circuit became the first federal court of appeals to rule favorably on a transgender plaintiffs Title VII claims. See Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004) (holding the city fire department liable for sex discrimination after it threatened to terminate a lieutenant who transitioned from male to female). 2.2.3. Other good cases followed: 2.2.3.1. Kastl v. Maricopa County Community College Dist., 2004 WL 2008954, 2004 U.S. Dist. LEXIS 29825 (D. Ariz. 2004); 2.2.3.2. Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005);

2.2.3.3. Mitchell v. Axcan Scandipharm, 2006 U.S. Dist. LEXIS 6521 (W.D. Pa. 2006); 2.2.3.4. 2.2.3.5. Schroer v. Billington, 577 F.Supp.2d 293 (D.D.C. 2008); Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011).

2.3. See also cases reaching similar results for other federal statutes, including Schwenk v. Hartford, 204 F.3d 1187, 1201-02 (9th Cir. 2000) (Gender Motivated Violence Act), and Rosa v. Park West Bank & Trust Co., 214 F.3d 213, 215-16 (1st Cir. 2000) (Equal Credit Opportunity Act). 2.4. Why the change? Three possible factors: 2.4.1. First, as noted above, societys increasingly sophisticated understanding of sex, gender, and sexual orientation, and as a corollary, diminishing levels of explicit and implicit bias against transgendered individuals within the bench and bar. Bluntly: If the judge does not find the trans plaintiff to be threatening, horrifying, aesthetically shocking and deviant, see Anna Kirkland, Whats at Stake in Transgender Discrimination as Sex Discrimination, 32 SIGNS 83, 108, he or she is more likely to find a way to rule for the plaintiff. 2.4.2. Second, an increasing awareness of the prevalence and seriousness of discrimination against transgendered individuals, which increases pressure to recognize protections under existing law.

2.4.2.1. In one recent survey, nearly fifty percent of the transgender respondents reported experiencing an adverse employment action based on their transgender status. 2.4.2.2. Fifty-seven percent reported delaying their gender transition in order to avoid harassment and discrimination at work. 2.4.2.3. See Jaime M. Grant, Lisa A. Mottet, Justin Tanis, Jack Harrison, Jody L. Herman & Mara Keisling, Nat'l Ctr. for Transgender Equal. and Nat'l Gay and Lesbian Task Force, Injustice at Every Turn: A Report of the National Transgender Discrimination Survey (2011), available at http://www.thetaskforce.org/reports. 2.4.3. Third, a growing consensus that transgender status can be considered, at least in some instances, a medical/psychological condition, which in turn aligns trans identity with other personal characteristics such as race or age that are protected in part because they are seen as immutable. 2.4.3.1. Given the express exclusion of transsexualism and gender identity disorders from the ADA, this growing consensus might seem to cut against finding greater protection for trans individuals under Title VII. Luckily, however, it doesnt seem to be working that way. 2.4.3.2. More on the medical consensus:

2.4.3.2.1. While a person who self-identifies or is identified by others as transgender may be perfectly healthy by medical standards, a subset of transgender people can be said to suffer from gender dysphoria or Gender Identity Disorder (GID). 2.4.3.2.2. These people experience a strong and persistent cross-gender identification and a persistent discomfort with [their] sex or sense of inappropriateness in the gender role of that sex, causing clinically significant distress or impairment in social, occupational, or other important areas of functioning. World Professional Association for Transgender Health (WPATH), Standards of Care for the Health of Transsexual, Transgender, and Gender Nonconforming People (7th ed.) at 96; available at http://www.wpath.org/publications_standards.cfm (quoting the description of gender identity disorder or GID in the Diagnostic and Statistical Manual of Mental Disorders (4th ed. Text rev.) (2000) (DSM-IV-TR)) 2.4.3.2.3. Health professionals refer to this condition as gender dysphoria or Gender Identity Disorder (GID). See WPATH Standards of Care at 96-97. The edition of the DSM currently in publication, DSM-V, will use the term gender dysphoria.

2.5. So which legal arguments are working, exactly? 2.5.1. At least two (possibly) distinct arguments have been persuasive: (1) a gender stereotyping or gender non-conformity argument, la Price Waterhouse v. Hopkins, 490 U.S. 288 (1989); and (2) a per se argument, based on logic and the words of the statute. 2.5.1.1. For examples of the gender stereotyping argument, see Smith, Kastl, Barnes, Mitchell, and Glenn (above in Part 2.2.3). The basic idea: just like Ann Hopkins could not be treated differently by Price Waterhouse because she failed to walk more femininely, transgender employees cannot be treated differently because they do not present their gender in the way their employers expect or prefer, consistent with their (presumed) sex. 2.5.1.2. For an example of the per se argument, see Schroer (above in 2.2.3). The Schroer court explained its reasoning by analogizing trans status to religion: Employers are obviously barred under Title VII from discriminating against employees who have transitioned between different religions (say, by converting from Catholicism to Buddhism). Similarly, the court recognized, employers should be barred from discriminating against employees who have transitioned, or plan to transition, between different sexes or genders. 2.5.2. For a lengthy discussion of these two arguments, as well as a third legal argument termed constructivist, see Jason Lee, Lost in Transition: The Challenges of Remedying Transgender Employment Discrimination Under Title VII, 35 HARV. J.L. & GENDER 423, 427 (2012). 2.5.2.1. The three arguments may not be as distinct as this author presumes. But the authors analysis of the pros and cons of the three (possibly) different arguments is worth perusing, if you want to make strategic choices on your trans clients behalf. 2.5.2.2. For instance, does the gender nonconformity argument only work if the court ignores the plaintiffs trans status and treats a male-to-female (MtF) transgender woman as if she were a man (so that the plaintiff can argue that the defendant is wrongly expecting the plaintiff to act like a real man, just like Ann Hopkins was asked to act like a real woman)? See Lost in Transition at 445-46. 2.5.2.3. Space precludes analysis here, but in brief , I think not. A MtF trans plaintiff in those circumstances could take the position that she is, in fact, a real woman, and shes actually presenting like a real woman (per stereotypical expectations) but her employer is wrongly setting up a different set of gender stereotypes for her to align with, based on her perceived sex (male). 2.5.3. On the not-yet-very-good-news front: none of these arguments seems to be particularly persuasive when it comes to the bathroom issue. Compare, e.g., Kastl
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v. Maricopa County Community College Dist., 2004 WL 2008954 at *2 (D. Ariz. 2004) (recognizing that a trans plaintiff can bring Title VII and Title IX claims under a gender stereotyping theory); with Kastl v. Maricopa County Cmty. College Dist., 325 Fed. Appx. 492, 2009 U.S. App. LEXIS 7833 (9th Cir. Ariz. 2009) (dismissing plaintiffs claims because employers concern about safety was not a pretext for gender discrimination/stereotyping). See also Etsitty (in Part 2.1 above) (permitting employer to fire transgender bus driver because she needed to use public bathrooms along the route). 2.6. Meanwhile, at the EEOC 2.6.1. In April 2012, the EEOC issued a momentous decision: Macy v. Holder, Agency No. ATF-2011-00751 (April 20, 2012) (attached to these materials as Attachment A). 2.6.2. In Macy, the EEOC, following cases like Smith and Schroer, determined that intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination based on. . . sex, and such discrimination therefore violates Title VII. 2.6.3. This decision will have a sweeping effect since it binds all federal agencies and all EEOC offices and investigators across the country. 3. State and Local Laws Also Increasingly Recognize Rights for Trans Employees 3.1. Bragging rights go to the Minnesota Human Rights Act. In 1993, Minnesota was the first state in the country to include express protection for transgender individuals in its statelevel version of Title VII, known as the MHRA. 3.1.1. Practice tip: Particularly with early adopters like Minnesota, the relevant provision may be buried in the definitions section and/or obscured in some outdated terminology. You may have to dig a bit to find it. 3.1.1.1. The MHRA, for example, technically forbids discrimination based on sexual orientation. See Minn. Stat. 363A.08, subd. 2(1), (3). As noted above, this is not the same as gender identity. Concretely: just like a cis person, a trans person may identify as straight or as lesbian, gay, or bisexual (or as none of these). 3.1.1.2. But sexual orientation is defined in the MHRA as "having or being perceived as having an emotional, physical, or sexual attachment to another person without regard to the sex of that person or having or being perceived as having an orientation for such attachment, or having or being perceived as having a self-image or identity not traditionally associated with one's biological maleness or femaleness. Minn. Stat. 363A.03, subd. 44 (emphasis added). Its clunky, and perhaps especially off-putting to trans people who identify as straight, but it works in practice.
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3.2. A more recent example: The Connecticut Commission on Human Rights and Opportunities (CHRO) issued, la the EEOCs Macy ruling, a sweeping declaratory ruling holding that a complaint alleging discrimination on the basis of sex may be brought by transsexual persons. See Declaratory Ruling On Behalf of John/Jane Doe (November 9, 2000), available at http://www.ct.gov/chro/cwp/view.asp?a=2526&Q=315942; cited in Comm'n on Human Rights & Opportunities v. City of Hartford, CV094019485S, 2010 Conn. Super. LEXIS 2727 (October 27, 2010). 3.3. According to a report issued by the National Center for Lesbian Rights (NCLR), as of 2010, fifteen states and the District of Columbia have passed laws that offer explicit protections for transgender people. See NCLR, State by State Guide to Laws that Prohibit Discrimination Against Transgender People, available at http://www.nclrights.org/site/DocServer/StateLawsThatProhibitDiscriminationAgainstTr ansPeople.pdf?docID=7821. 3.3.1. The NCLR Report notes that states have taken three different approaches to writing the protection into state law: In Iowa, Maryland, New Jersey, New Mexico, North Carolina, Rhode Island, Vermont, and the District of Columbia, the non-discrimination statutes explicitly include gender identity as a protected characteristic. In Colorado, Illinois, Minnesota, Maine, Oregon, Washington the nondiscrimination laws prohibit discrimination based on sexual orientation, and include gender identity or expression within the statutory definition of sexual orientation. California offers protection to transgender people by including gender identity or expression within the statutory definition of sex for purposes of its non- discrimination laws. Hawaii similarly prohibits discrimination based on sex, including gender identity or expression.

NCLR Report at 2-3. 3.3.2. See Practice Tip in Part 3.1.2 on the need to look closely at your own state or local law. See also the section below on Bad News, which suggests that the best approach may be that taken by California and Hawaii (by statute) and Connecticut (by agency ruling): that is, to include gender and gender identity within the existing statutory definition of sex.

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4. Key Progress: Inclusive Health Care Benefits for Trans Employees 4.1. Trans employees who are not fired for transitioning, harassed by colleagues, or forbidden to use the appropriate bathroom facilities often face another serious problem at work: arbitrary restrictions on their access to health care benefits. 4.2. For example: they may be denied coverage for medically necessary services (such as counseling, hormones, or surgery) related to their diagnosed gender dysphoria/GID because the employer-offered plan has a categorical exclusion for any services that relate to gender reassignment. 4.3. For many years, ERISA preemption made it difficult to challenge such discriminatory exclusions, but recent changes in federal law have eliminated this barrier. 4.3.1. Space does not permit (nor, frankly, would many of us want to try to follow) a detailed discussion of how ERISA preemption works and why it is no longer a barrier. 4.3.2. But in brief, taking a Minnesota plaintiff as an example: 4.3.2.1. For nearly two decades, as noted above, the MHRA has expressly prohibited Minnesota employers from discriminating against employees or their dependents on the basis of their gender identity. 4.3.2.2. However, ERISA preemption has kept this state law provision from actually applying to Minnesota employee benefit plans, as long as Title VII was not understood to guarantee trans employees equal access to employee benefits. 4.3.2.2.1. Compare Section 514(a) of ERISA, 29 U.S.C. 1144(a) (providing that ERISA will supersede any and all state laws insofar as they may now or hereafter relate to any employee benefit plan), with Section 514(d) of ERISA, 29 U.S.C. 1144(d) (ERISA does not preempt other federal laws like Title VII); and Shaw v. Delta Air Lines, 463 U.S. 85, 97 (1983) (holding that state laws are preempted by ERISA only to the extent that they go beyond separate, non-preempted federal law like Title VII). 4.3.2.2.2. Thus, as long as courts understood discrimination because of sex under Title VII not to cover discrimination against transgendered individuals, it was legal for employers to deny transgendered individuals access to medical care, despite the MHRAs provision to the contrary. See, e.g., Mario v. P & C Food Markets, Inc., 313 F.3d 758 (2d Cir. 2002) (dismissing claims against an employer for the denial of health insurance coverage for gender reassignment surgery, since the New York Human Rights Law was preempted by ERISA and since Title VIIs because of sex provision was assumed not to apply to trans discrimination).
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4.3.2.3. Once Title VII was read more broadly, the MHRA no longer went beyond it, and both could apply to protect a Minnesota transgender employee from discrimination in the provision of employer-provided health care benefits. 4.4. Gender Justice (together with OutFront Minnesota) has been successful in convincing at least one large Minnesota employer, Health Partners, to drop its discriminatory exclusion of any medical services for gender reassignment. 4.5. Progress is being made here under state law as well. See, for example, the recent change in Vermont law, which made clear that employers are barred from offering discriminatory plans: http://www.advocate.com/politics/transgender/2013/04/29/vermont-orders-insurerscover-gender-reassignment. THE BAD NEWS 5. A Separate ENDA Creates Boundary Issues 5.1. It should be clear from the notes above that Congress could fix Title VII and cases like De Santis and Ulane by amending Title VII itself. The new and improved Title VII text would make clear that discrimination on the basis of sex must be understood to include discrimination on the basis of sex, gender identity, and/or sexual orientation, or any combination of these. 5.2. Writing a separate statute like ENDA creates boundary issues because many advocates would argue, and many courts have held, that Title VII already means this. 5.3. If we accept this were already there (even if some courts dont know it yet) view, then any differences between Title VII and ENDA suddenly matter, not just because they result in different levels of protections for newly protected categories of discrimination (which arent really newly protected), but also because these differences might result in different levels of protection for old/well-recognized categories of discrimination. 5.3.1. We can use Ann Hopkins as a concrete example. If she brought her case after passage of ENDA, would she bring it under Title VII (as a sex discrimination) case, or under ENDA (as a gender identity case)? 5.3.1.1. I think she could do either, much as a plaintiff in a race discrimination case can bring a Title VII or a Section 1981 claim. 5.3.1.2. If a Hopkins claim under ENDA strikes you as implausible, reconsider the reasoning of cases like Smith, Kastl, Barnes, Mitchell, and Glenn (above in Part 2.2.3), all of which relied on a gender stereotyping argument drawn from Price Waterhouse. The analogy works in both directions: just like transgender employees cannot be treated differently because they do not present their gender in the way their employers expect or prefer, consistent with their (presumed) sex, Ann Hopkins could not be treated differently by Price Waterhouse because she failed to walk more femininely, and so forth.
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5.3.2. Then suppose, for example, that the standard of causation differs under Title VII and ENDA, thanks to cases like Gross v. FBL Financial Servs, Inc., 129 S.Ct. 2343 (2009). Would Hopkins need to proceed under a motivating factor or a but-for causation standard? 5.4. But this boundary problem exists regardless of whether the two statutes actually differ with regard to things like causation standard. 5.5. One could argue that plaintiffs can choose which statute (and which causation standard, etc.) to proceed under, but I think theres reason to expect strong pressure, over time, to eliminate the overlap and instead slot all types claims under one statute or the other. 5.5.1. An example of this type of either/or thinking: A Louisiana lawmaker recently proposed a bill designed to prevent LGBT people from ever seeking judicial protection if theyre refused hire, denied promotion, or fired because of their sexual orientation or gender identity: [The bill] Provides that suits filed for employment discrimination for any reason other than age, disability, race, color, religion, sex, national origin, pregnancy, childbirth and related medical conditions, sickle cell trait, and genetic discrimination shall be dismissed and considered frivolous. See http://thinkprogress.org/lgbt/2013/04/16/1873671/louisiana-lawmaker-seeksto-guarantee-anti-lgbt-employment-discrimination/ (emphasis added). 5.5.2. Clearly this lawmaker does not think that the plaintiffs in Smith, Schroer, or Macy could bring a sex discrimination claim, nor, by implication, does he think that Ann Hopkins would be bringing a claim for gender identity discrimination, since that would then be frivolous, by definition. 5.6. Generally: The more your theory of sex, gender/gender identity, and sexual orientation discrimination leads you to see these types of discrimination as inextricably linked to each other, the less comfortable you can be with a separate statutes approach. 6. The Current ENDA Bends Over (Too Far) Backwards for Religious Employers 6.1. ENDA was first introduced nearly 20 years ago, in 1994. Most recently, it was reintroduced as the Employment Non-Discrimination Act of 2013 (S. 815; H.R. 1755). A copy of S. 815 is attached as Attachment C, and the full text of both bills is available on http://thomas.loc.gov/home/thomas.php. 6.2. Sec. 4 of S.815 prohibits discrimination because of [an] individuals actual or perceived sexual orientation or gender identity. 6.3. Sec. 6 of S.815 creates an exemption for religious organizations: This Act shall not apply to a corporation, association, educational institution or institution of learning, or society that is exempt from the religious discrimination provisions of title VII of the

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Civil Rights Act of 1964 pursuant to section 702(a) or 703(e)(2) of such Act (42 U.S.C. 2000e-1(a); 2000e-2(e)(2). 6.4. What this means: religious employers are completely exempted from the requirements of ENDA; they can discriminate at will against employees because of their actual or perceived sexual orientation or gender identity. 6.5. Contrast this to the much more tailored exemption under Title VII: 6.5.1. Title VII carves out an exception only for discrimination on religious grounds. See generally EEOC, Questions and Answers: Religious Discrimination in the Workplace, available at http://www.eeoc.gov/policy/docs/qanda_religion.html; see also Cynthia Brougher, Congressional Research Service, Religion and the Workplace: Legal Analysis of Title VII of the Civil Rights Act of 1964 as It Applies to Religion and Religious Organizations (Jan. 20, 2011), available at http://digitalcommons.ilr.cornell.edu/cgi/viewcontent.cgi?article=1809&context=k ey_workplace. 6.5.2. The EEOC clarifies: This exception is not limited to religious activities of the organization. However, it only allows religious organizations to prefer to employ individuals who share their religion. The exception does not allow religious organizations otherwise to discriminate in employment on the basis of race, color, national origin, sex, age, or disability. Thus, a religious organization is not permitted to engage in racially discriminatory hiring by asserting that a tenet of its religious beliefs is not associating with people of other races. See http://www.eeoc.gov/policy/docs/qanda_religion.html. 6.5.3. The exception does not permit religious employers to discriminate on the grounds of sex. 6.6. Courts have recognized a separate exception, called the ministerial exception, which bars any Title VII claim, including a sex discrimination claim, from an employee who serves in a clergy or ministerial role. 6.6.1. The EEOC explains: Courts have held that clergy members generally cannot bring claims under the federal employment discrimination laws, including Title VII. This ministerial exception comes not from the text of the statutes, but from the First Amendment. The exception applies only to employees who perform essentially religious functions, namely those whose primary duties consist of engaging in church governance, supervising a religious order, or conducting religious ritual, worship, or instruction.

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See http://www.eeoc.gov/policy/docs/qanda_religion.html. 6.7. Again, the exemption under the current ENDA bill is much broader, since it is not limited to employees in ministerial roles. Under Sec. 6, religious employers can discriminate against all employees on the basis of their gender identity, regardless of the type of work the employee does. 6.8. To give a real-world example: 6.8.1. Gender Justice currently represents a transgender woman who was fired by her employer a Bible college after she transitioned. The woman did not perform an essentially religious function for the College; she worked in the IT department on purely technical matters. 6.8.2. Under the Minnesota Human Rights Act (MHRA) and Title VII (as read by decisions like Smith, Schroer, and Macy see Part 2 above), her termination was blatantly illegal. 6.8.3. Under S.815, by contrast, if the employer qualifies as a religious organization under Sec. 6, then its actions were perfectly legal. 6.8.4. This contrast creates an all-or-nothing boundary issue for this client: 6.8.4.1. Both Title VII and ENDA could apply, since sex discrimination includes discrimination on the grounds of gender identity. 6.8.4.2. But her claim is only viable (assuming the employer qualifies as a religious organization) if she can bring it under Title VII. 6.8.5. Similarly, if this employer wanted to discriminate against any Ann Hopkins types in its workplace, it could do so under ENDA, regardless of whether they were Bible scholars, IT professionals, or groundskeepers. 7. The Current ENDA Builds in Bias 7.1. S. 815, like predecessor versions of ENDA, contains an express construction provision regarding dress or grooming standards: DRESS OR GROOMING STANDARDS.Nothing in this Act shall prohibit an employer from requiring an employee, during the employees hours at work, to adhere to reasonable dress or grooming standards not prohibited by other provisions of Federal, State, or local law, provided that the employer permits any employee who has undergone gender transition prior to the time of employment, and any employee who has notified the employer that the employee has undergone or is undergoing gender transition after the time of employment, to adhere to the same dress or grooming standards as apply for the gender to which the employee has transitioned or is transitioning.

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S.815, Sec. 8(a). 7.2. Contrast this with Title VII, which has no such provision. 7.3. Case law under Title VII does recognize a sort of exception for dress or grooming codes, at least if it can be argued that the burden they impose is de minimis and/or if they burden men and women equally. See, for a particularly notorious example, Jesperson v. Harrahs Operating Co., 392 F.3d 1076, 1080 (9th Cir. 2004). 7.4. Progressive advocates have been fighting against the Jesperson line of cases for years, as a sort of Achilles heel of anti-discrimination doctrine. They think this line of cases radically undercut the ethos and promise of Title VII. See, e.g., Jennifer L. Levi, Misapplying Equality Theories: Dress Codes at Work, 19 YALE J.L. & FEMINISM 353 (2008); Mark R. Bandsuch, S.J., Dressing Up Title VIIs of Workplace Appearance Policies, 40 COLUM. HUMAN RIGHTS L. REV. 287 (2009). They ask: How can Title VII be a tool to dismantle rigid gender role expectations, if it builds critical gender role expectations right in? 7.4.1. Note here that de minimis is very much in the eye of the beholder, and tends to privilege the most cis perspective possible. 7.4.2. For example: If its normal for women to wear lipstick, whats the big deal about requiring them to wear lipstick at work? 7.4.2.1. But, as I noted above, it would be a big deal to me (see Part 1.3.4.1), and it was a big deal to the plaintiff in Jesperson. The requirement that she wear lipstick and other makeup made her feel sick, degraded, exposed, and violated. 392 F.3d at 1077. She did not want to be dolled up like a sex object; she preferred to give up her job rather than give in to this grooming code. 7.4.2.2. A female-to-male transgender employee would likely also find it quite burdensome, if not unbearable, if he was required to wear lipstick at work. 7.5. The dress and grooming code provision in S.815 would avoid this last result, since it would permit a female-to-male transgender employee to follow the male grooming requirements. In other words, it would provide a fix for notorious cases like Creed v. Family Express Corp., 2009 U.S. Dist. LEXIS 237, 91 Empl. Prac. Dec. (CCH) P43422, 105 Fair Empl. Prac. Cas. (BNA) 329 (N.D. Ind. Jan. 5, 2009), in which the court allowed a trans employee to be terminated for failure to follow the dress code applicable to the employees pre-transition identity. But it would do so at the cost of building rigid, binary gender stereotypes into ENDA itself and reinforcing bad Title VII caselaw like Jesperson. 7.6. A better solution: overturn the Jesperson line of cases, so that no employee is required to conform to a system of gender marking in the workplace.

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7.6.1. Employers should be allowed (under Title VII and under ENDA, if ENDA is passed as a separate statute) to mandate that employees maintain a professional appearance or otherwise dress and groom themselves in ways appropriate to their workplace. 7.6.2. However, they should not be allowed to impose standards that differentiate employees along protected lines (race, sex, etc.) or that unequally burden employees along those protected lines. See articles cited in Part 7.4 above regarding sex; regarding race and sex, see Angela Onwuachi-Willig, Another Hair Piece: Exploring New Strands of Analysis Under Title VII, 98 GEO. L.J. 1079 (2010). CONCLUSION To recap the takeaway: Noticing that the good news is paired with some bad news does not mean that were doing it wrong. Sometimes progress is like that three steps forward, one step back, but ever onward. But when we have the opportunity to make strategic choices in how we bring our cases or argue for new legislation, we should do so. I have made some suggestions above regarding what I think are better and worse choices, and of course I welcome your thoughts or suggestions, either during the presentation or afterwards (see my contact information above). Thank you!

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