Transgender issues have been front and center this past week. At Sunday’s Golden Globes awards ceremony, the innovative online show Transparent took home two awards, one for Best TV Series – Musical or Comedy and one for Best Actor in a Comedy Series. Both acceptance speeches were personal and moving, with the show’s creator, Jill Soloway, dedicating her award to Ohio teen Leelah Alcorn and actor Jeffrey Tambor thanking the transgender community for “letting us be part of the change.” Still, the Golden Globes was not without flaws: NBC’s Connecticut branch released tone-deaf coverage of European celebrity Conchita Wurst, focusing on her facial hair rather than her work or, as is typical with red-carpet commentary, her dress.
The Golden Globes coincided with another piece of transgender news: an employment discrimination lawsuit against Saks Fifth Avenue. Leyth O. Jamal, a former Saks retail employee, filed suit against the department store on the grounds that she was harassed and ultimately fired for her transgender status. In response, Saks has adopted a surprising and repugnant defense. Rather than denying the discrimination, Saks argues that it is legally allowed to discriminate against transgender employees. Saks is trying to dismiss the lawsuit on the basis that transgender status is not a “protected class” and therefore does not merit protection under Title VII of the Civil Rights Act. In addition to taking such a distasteful legal stance, Saks fanned the flames by using “[sic]” – an indicator of error or mistake – each time the company referred to Jamal as “she” in their motion to dismiss.
This litigation tactic is morally reprehensible and, hopefully, unlikely to succeed. The past few years have seen important strides when it comes to protecting transgender workers. The Sixth and the Eleventh Circuits, both of which tend to be conservative courts, ruled in favor of transgender employees. In 2012 the Equal Employment Opportunity Commission, the federal agency tasked with remedying employment discrimination, unequivocally held that Title VII does protect transgender employees. Over the summer President Obama signed an Executive Order prohibiting federal contractors from discriminating against their employees on the basis of sexual orientation or gender identity. And just last month Attorney General Eric Holder circulated a memo stating that the Department of Justice now interprets Title VII’s prohibition on sex discrimination to include discrimination against transgender employees.
Still, the legal protections available to transgender employees are not comprehensive. Congress has repeatedly failed to pass federal legislation that expressly protects LGBTQ employees. According to the ACLU, only eighteen states have employment non-discrimination laws that expressly cover sexual orientation and gender identity. And, as my colleague, Maya Sequeira, discussed on this blog, legal protections in the form of executive orders are not perfect.
The reality is that employment discrimination against transgender people remains rampant. Transgender workers still face widespread underemployment (twice the unemployment rate the general population); pervasive harassment (ninety percent of transgender employees report having experienced harassment); and adverse employment actions (forty-seven percent reported being fired, not hired, or denied a promotion because of their gender identities). As a result, transgender people experience increased levels of poverty and incarceration and are much more likely to be forced into high-risk forms of underground employment, involving sex work and/or drugs. Despite such persistent discrimination, enforcement litigation by transgender people like Leyth O. Jamal remains rare.
The time is ripe to capitalize on the media dialogue surrounding transgender issues and to take advantage of the growing legal protections for transgender employees. Jamal’s lawsuit does just that. Saks would be well-served to take responsibility for its actions, settle the case, and hurry up and get on the ride side of history.