There is no federal law prohibiting discrimination based on sexual orientation in private employment, though such protection was first introduced by Bella Abzug in 1974. Courts have consistently read Title VII’s ban on sex discrimination to leave out protection from anti-gay discrimination. Currently, in 31 states, including all of the South and most of the Midwest and West, there is no statewide protection for gays in private employment.
A controversy has been brewing among gay-rights advocates over how expansive to make a new federal law, the Employment Non-Discrimination Act (ENDA), which would protect gay people from private employment discrimination. On one side of the controversy are activists, including a large number of civil-rights and gay organizations, who want the new law to protect both gay and transgendered employees from discrimination. They fear that if trans protection is not included in ENDA, Congress will not act to protect transgendered people anytime in the near future. They argue this is a matter of principle: gay people should wait until “everybody” in the “GLBT community” can get protection – however long that might take. They vow to actively oppose any bill that does not include both groups.
On the other side are various commentators (see, for example, here and here and here and here) and Rep. Barney Frank (D-MA), who claim that ENDA cannot pass Congress if protection for transgendered employees is included. They support a new version of the bill that would protect gay employees, but leave protection for the transgendered for another day. They argue this is a matter of pragmatism: civil rights legislation proceeds incrementally, through a process of education and adjustment, and has never protected “everybody” and everything all at once.
Enter Lambda Legal, the national legal outfit representing gay people in everything from immigration to marriage to employment. Lambda claims that, aside from the cruelty of leaving transgendered people out of ENDA, there is self-interest for gay people at stake in including protection for “gender identity” as well as “sexual orientation” in the bill. In an open letter to Frank, Lambda argues:
We have no doubt that, were the weaker version of ENDA to pass, some employers will claim they have nothing against lesbians, gay men and bisexuals per se, but that they do not want men whom they see as unmanly or women who they believe are not feminine enough, and loophole would be invoked against almost any lesbian, gay man or bisexual who sought protection against discrimination under ENDA.
That is, according to Lambda, an employer might successfully argue that it did not object to gay people as such, but it didn't want any employee (gay or straight) who appeared to the employer to be gender nonconforming. So, under this hypothesis, an employer could get around the gay-only version of ENDA by claiming that it fired a lesbian for being “too mannish” rather than lesbian. Or it could claim that it fired a gay man for his effeminacy rather than his homosexuality.
As a factual matter, it would be passing strange to see such a case, since almost every instance of discrimination for gender nonconformity is accompanied by direct and explicit evidence of anti-gay discrimination (e.g., calling an effeminate man a "fag"). It would not be hard for a court or jury, and certainly would not be hard for Lambda's skilled lawyers, to pierce the pretext that the employer was not really engaged in anti-gay discrimination and thus violating the "weak" version of ENDA.
Indeed, we now have decades of experience with state laws that protect gay people from discrimination based on sexual orientation but not gender identity. If the inadequacy of sexual-orientation protections were a real problem — as opposed to a hypothetical or theoretical one — we should expect to see many such cases. But neither Lambda nor any other organization has yet produced a single instance in which an employer successfully argued around a gay-only employment protection law by claiming that it really fired the person for gender non-conformity.
Lambda points to one such case in its letter to Frank:
For example, just two years ago, a federal court of appeal ruled that a lesbian who claimed that she was discriminated against because she did not conform to stereotypical expectations of femininity did not to have a viable claim under New York state's Sexual Orientation Non-Discrimination Act (SONDA), which fails to include an express prohibition on discrimination based on gender identity and expression.
Curious about this example, I looked it up. The case Lambda refers to is Dawson v. Bumble & Bumble, 398 F.3d 211 (2nd Cir. 2005). Sure enough, it does not support Lambda's argument and, if it's relevant at all, shows the opposite of what Lambda suggests. A "weak" version of ENDA would have helped the plaintiff's case.
In the case, a lesbian named Dawn Dawson worked in a hair salon full of gays, lesbians, gender benders, and general nonconformists. After a year, she was fired by her pre-op transsexual boss. As is common in employment-discrimination cases, the employer claimed she was fired for poor performance (rudeness and inconsistency) and the employee claimed illegal discrimination. Dawson asserted she was discriminated against based on her sex, her sexual orientation, and the fact that she was a masculine-appearing woman. She said this violated both federal and state law. She lost on summary judgment on both counts — but her loss had nothing to do with the failure to include "gender identity" in either state or federal law or with the hair salon’s ability to say it likes gays but not gender benders.
(1) Federal claim in Dawson
First, take the federal claim Dawson made. Under Title VII, federal law already generally forbids discrimination based on sex stereotyping (e.g., a woman perceived as too "mannish") under the Supreme Court’s 1989 decision in Price Waterhouse v. Hopkins. The problem is that courts are afraid to let gays claim such discrimination because they suspect it’s a way for gays to sneak sexual orientation protection into the law. Consider this passage from the opinion:
[I]ndividual employees who face adverse employment actions as a result of their employer’s animus toward their exhibition of their behavior considered to be stereotypically inappropriate for their gender may have a claim under Title VII. When utilized by an avowedly homosexual plaintiff, however, gender stereotyping claims can easily present problems for an adjudicator. This is for the simple reason that “[s]tereotypical notions about how men and women should behave will often necessarily blur into ideas about heterosexuality and homosexuality.” [citation omitted]. Like other courts, we have therefore recognized that a gender stereotyping claim should not be used to “bootstrap protection for sexual orientation into Title VII.” 398 F.3d at 218.
If a heterosexual plaintiff claims gender stereotyping, she has a claim. But if an “avowed homosexual” plaintiff claims gender stereotyping, courts get very suspicious that it’s an attempt to sneak sexual orientation protection into Title VII under the guise of interpretation.
Make of that concern what you will, but the sexual-orientation-only version of ENDA might have helped Dawson in two ways. First, she could have made a straightforward sexual orientation claim (though that claim might have run into other problems particular to her case). Second, she might have a made a successful gender-stereotyping claim because, since federal law will now protect gay people from discrimination, courts will not have to worry about gender stereotyping claims "blurring" into sexual orientation claims. They will not be so anxious about letting gay plaintiffs sneak sexual orientation protection into federal law: it will already be there. I want to be cautious on this second point. ENDA is not a formal amendment of Title VII, and thus existing precedent about the exclusion of gays from sex stereotyping claims could remain in full force under that law. But that is true regardless of whether a "weak" or "strong" ENDA passes.
In other words, Dawson lost on her federal claim precisely because federal law does not prohibit discrimination based on sexual orientation. Of course, a trans-inclusive ENDA that prohibits both sexual orientation and gender-identity discrimination would protect her as well. But so would the new version of ENDA that prohibits only sexual orientation discrimination since courts might no longer feel that they have to limit sex-stereotyping claims to heterosexuals.
But it gets worse for Lamda's position. Dawson didn’t even present competent evidence that she was fired for gender nonconformity.
[I]n contrast to the plaintiff in Price Waterhouse, who proffered evidence that her promotion to partnership depended upon her changing her behavior to better conform to gender stereotypes, . . . Dawson has produced no substantial evidence from which we may plausibly infer that her alleged failure to conform her appearance to feminine stereotypes resulted in her suffering any adverse employment action at the hands of Bumble & Bumble. Thus, her Title VII claim based upon a gender stereotyping theory must fail. Id. at 222-23.
Thus, on the record, Dawson was not even fired for being a gender bender. How then could it be, as Lambda asserts, that she lost because her employer accepted gays but not gender-benders? There is nothing in the court’s opinion that comes even close to saying that.
(2) State claim in Dawson
Dawson also claimed that she had been discriminated against based on her sexual orientation in violation of New York state law (which explicitly protects gays, but not transgenders). She lost on this claim because the only evidence of any discrimination based on her sexual orientation came from statements made by two co-workers who apparently had no role in the decision to fire her. Thus, she presented no evidence that she had actually been fired for being a lesbian. Id. at 224-25.
She did not lose this state-law claim, as Lambda suggests, because New York failed to include “gender identity” in its law and her employer successfully argued that it fired her based on her gender non-conformity and not her sexual orientation. Adding gender identity to New York law would not have saved this employee in a case where she produced no sufficient summary judgment evidence that she had been fired either for gender bending or for sexual orientation.
(3) Will ENDA without "gender identity" impliedly overrule Price Waterhouse?
Lambda also claims in its letter to Frank that if gender identity is deliberately stripped from ENDA, "increasingly conservative" courts might interpret this as signalling Congress' desire to eliminate gender-stereotyping claims of the type recognized in Price Waterhouse, thus exposing effeminate gay men and masculine lesbians to discrimination for gender nonconformity rather than sexual orientation. I suppose anything is possible, but this scenario builds wild speculation upon dubious hypothesis.
First, nothing determinate about Congress's "intent" can be inferred from such drafting changes. Silence about "gender identity" might simply indicate an intent to leave out trangendered people (and most likely, the narrower class of transsexuals who are surgically altered or who live life fully as a member of the opposite sex) or it might indicate Congress thinks there's already sufficient protection for gender nonconformity in existing interpretation of Title VII (under Price Waterhouse) or it might mean there weren't enough votes for a more comprehensive bill or it might mean nothing at all.
Second, the least likely judicial interpretation of congressional silence on gender identity is that Congress meant to overrule two decades of federal court precedent based on a standing Supreme Court decision. The reasoning of Price Waterhouse on sex stereotyping as a form of prohibited "sex discrimination" holds regardless of what ENDA includes. There will be no legislative history to suggest that Congress meant to overrule Price Waterhouse by excluding gender identity from the bill. Effeminate gay men and masculine lesbians would have potential claims under the "weak" ENDA for sexual orientation discrimination and would also likely have stronger claims for sex stereotyping under Title VII.
Third, for reasons discussed above, even if courts strained to infer that Congress meant to overhaul sex-discrimination law silently by passing a "weak" ENDA, even that would not hurt gay plaintiffs making sexual-orientation discrimination claims under ENDA. There are no reported cases yet in which an employer successfully made the contorted we-like-gays-but-not-gender-nonconformists claim Lambda hypothesizes. Nor, as a factual matter, should we expect such cases.
One thing is clear: federal law does not currently protect transsexuals (as opposed to manly women or effeminate men) from discrimination in private employment based on their transsexuality. ENDA is probably the best chance to protect transsexuals from private employment discrimination nationwide in the near future. But if Frank is right that the bill can't pass with gender identity included, it's hard to see what a trans-inclusive ENDA would accomplish for the transgendered until members of Congress are "educated" about the matter. Nobody knows how long that might take. Another uncertainty is whether, even if ENDA passes the Senate, President Bush would sign it. A trans-inclusive ENDA would make both Senate passage and presidential signature less likely than they already are.
If Lambda and other groups want to insist that ENDA should be trans-inclusive no matter what the cost to gay people in 31 states who are now without statewide employment protection and aren't likely to get it anytime soon, that's fine. They can certainly do so as a matter of principle, or morality, or fairness, or political coalition-building. But their legal argument about the inadequacy of the "weak" ENDA for gay Americans is makeweight. They should stop trying to argue that laws protecting gay people from discrimination don't really protect gay people from discrimination.