Lobby Day

Yesterday and Monday were the Lobby Days for the Employment Non-Discrimination Act (ENDA). I was glad to see that they were lobbying not for the current version of ENDA that has a broad religious exemption but for a bill that has the same exemption as Title VII of the Civil Rights Act. But do we even need ENDA?

The NCTE website said,

All are invited to help enact explicit federal job protections for transgender people. With transgender people leading the effort, we can educate members of Congress about transgender issues and move a modified version of ENDA forward (one without the overly broad religious exemption).

If you will like to help you can email your congressional representatives to tell them that you support an ENDA without the religious exemption (You can find your congressional representatives here)

But I am beginning to believe that we do not need ENDA, the courts have ruled that gender identity and expression are covered by the Civil Rights Act of 1964 under Title VII and Title IX. In addition, a number of federal agencies such as Housing and Urban Development, Department of Education, Department of Justice, the Department of Labor, and the Equal Employment Opportunity Commission have issued directives covering us. The Advocate article said that,

In a series of court decisions over the past couple of decades, the definition of what constitutes “sex discrimination” under Title VII of the Civil Rights Act of 1964 has broadened considerably to include discrimination against transgender employees. But a new development in a case earlier this year could foretell a further evolution of Title VII to cover LGB workers as well.

Since 2004, several federal courts have ruled in favor of trans plaintiffs making discrimination claims, but the first court of appeals case to unequivocally equate anti-trans bias with sex discrimination was Glenn v. Brumby. The case was brought by Lambda Legal on behalf of Vandy Beth Glenn, who was fired from her job as a legislative editor for the Georgia General Assembly based on her intent to transition. The 11th Circuit Court of Appeals, which covers Florida, Georgia, and Alabama, ruled in Glenn’s favor in December 2011, restoring her to her original post at the state legislature.

The roots of these court cases go back to the 1989 Supreme Court case Price Waterhouse v. Hopkins where the court said that that gender stereotyping is actionable as sex discrimination. The case was about an associate at Price Waterhouse that was denied a promotion because she didn’t look feminine enough. From that case the Connecticut Commission on Human Rights and Opportunity declared that we were covered under Connecticut sex discrimination laws.

What I like in the Glenn v. Brumby case was the judge’s analogy that if a person changes their religion, suppose that changed their religion from being a Christian to being a Jew, it is still religious discrimination.

In the case of Macy v. Holder the Equal Employment Opportunity Commission (EEOC) also found that we are covered by Title VII because being transgender is a form of sex stereotyping and now that logic is being used to expand Title VII to cover sexual orientation. The Advocate article goes on to say,

But the latest twist that shows promise for the broader LGBT movement comes from Washington, D.C., where federal district court judge Colleen Kollar-Kotelly ruled that a gay man, Peter TerVeer, could move forward with a sexual orientation discrimination claim under Title VII.

“TerVeer is a homosexual male whose sexual orientation is not consistent with the Defendant’s perception of acceptable gender roles,” read the original complaint.

The lawyer who is handling TerVeer v. Billington, which will likely take another couple years to litigate, calls the development a “giant step forward” for workplace protections based on sexual orientation.

So is ENDA going the way of the dinosaur? If the courts rules rule that sexual orientation is a form of sex discrimination we will not need ENDA and if ENDA passes in its current form it might even hurt us.