In the past year, the EEOC filed two sex discrimination lawsuits of a new subset: transgender discrimination. The most recent of these cases, filed just a month ago, alleges that a Detroit-based funeral home fired a funeral director/embalmer for one or more of the following reasons: because she was transgender, because she was transitioning from male to female, and/or because her transition or identification as a female did not comply with the business’ gender based expectations, preferences or stereotypes. (Note: The pronouns in this article and in the EEOC’s allegations against the defendant funeral home identify the plaintiff as a “she,” representing the gender with which she currently identifies.) An increase in the awareness of the transgender and transsexual communities just in the past decade finally shed the light on the fact that these communities not only exist, but that their existence is riddled with social and workplace discrimination that often goes unnoticed. http://www.natlawreview.com/article/eeoc-sues-detroit-funeral-home-chain-sex-discrimination-against-transgender-employee.
In order to continue and maintain a discussion of this type, it is important to clarify what exactly the term “transgender” means. More foundationally, we must understand the terms “sex” and “gender” are also not synonymous. According to the World Health Organization, “sex” is the “biological and physiological characteristics that define men and women.” On the other hand, the term “gender” encompasses the “socially constructed roles, behaviors, activities, and attributes that a given society considers appropriate for men and women [a particular sex].” For example, consider the way that our society associates the color “blue” with a boy and the color “pink” with a girl. http://www.who.int/gender/whatisgender/en/.
The distinction between “sex” and “gender” is essential to understanding, and correctly using, the term “transgender.” The National Center for Transgender Equality defines “transgender” as, “a term for people whose gender identity, expression or behavior is different from those typically associated with their sex assigned at birth.” For example, a transgender person might have been born a biological male but identify with the gender identity, expression and/or behavior typically associated with a woman in our society. The concept of “gender identity” does not necessarily manifest in accordance with the sex we are assigned at birth. Rather, it is a more “invisible” sense of how we identify with being a male, female or something else. When an individual feels as though his or her “gender identity” is in conflict with their sex and the gender expressions our society associates with that sex, they may identify as transgender and begin making transitions to minimize the dissonance between their sex and gender identity. http://transequality.org/Resources/TransTerminology_2014.pdf.
The steps an individual may take to minimize his or her internal conflict between their sex and gender identity are known as “transitions.” The National Center for Transgender Equality broadly defines “transitions” as:
The time when a person begins living as the gender with which they identify rather than the gender they were assigned at birth, which often includes changing one’s first name and dressing and grooming differently. Transitioning may or may not also include medical and legal aspects, including taking hormones, having surgery, or changing identity documents (e.g. driver’s license, Social Security record) to reflect one’s gender identity. Medical and legal tests are often difficult for people to afford. http://transequality.org/Resources/TransTerminology_2014.pdf.
The Detroit-based funeral home is accused of discriminating against its employee while she made the transition from male to female. The plaintiff, Amiee Stephens, began her career with R.G. & G.R. Harris Funeral Homes in October 2007 and had always performed the duties of her position as funeral director/embalmer adequately. Last year, she gave her employer a letter and explained that she was beginning her gender transition from male to female and would soon begin dressing in business attire consistent with her identity as a woman. Just two weeks after the delivery of her letter, Harris Funeral Homes terminated Stephens, stating that what she was “proposing to do” was unacceptable.
This case is one of the first the EEOC has filed alleging transgender discrimination. In 2012, the EEOC held that discrimination on the basis of any “gender identity” constitutes sex discrimination under Title VII. While this is, as of now, an expansion of the EEOC’s interpretation of Title VII, the filing of this case is a step in the right direction to expand the statute to include transgender discrimination as a violation of Title VII. According to the EEOC, these suits are part of an organized operation to prioritize members of the gay and transgender communities as protected classes. http://www.lexology.com/library/detail.aspx?g=5955d8f5-db5d-4d99-bb24-9a7411b59f1d.
Employers should use caution and take steps to make themselves aware of the challenges that members of the LGBTQ (Lesbian, Gay, Bisexual, Transgender and Questioning) community are confronted with, simply by adhering to the identity they feel suits them best. Employers and employees would greatly benefit from training to spread LGBTQ awareness. Learning the socially preferred “terminology” for members of these blossoming communities will also facilitate better communication between employers and employees. As with any other category of Title VII discrimination, education, communication and awareness are the keys to an equal opportunity workplace.
As with any rule, there are exceptions.
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