Employment Non-Discrimination Act

Last week, the Senate HELP Committee (that’s Health, Education, Labor, & Pensions) held a hearing on an important piece of bipartisan legislation, the Employment Non-Discrimination Act (ENDA), which would provide lesbian, gay, bisexual, and transgender (LGBT) individuals with long overdue protection against discrimination in the workplace. Specifically, ENDA would prohibit employment discrimination on the basis of sexual orientation and gender identity in both public and private employment (with exemption for small businesses and certain religious employers). Although in certain circumstances, LGBT individuals are currently protected from employment discrimination under the Equal Protection Clause of the U.S. Constitution and Title VII of the Civil Rights Act of 1964, there is no federal law that explicitly prohibits workplace discrimination on the basis of sexual orientation and gender identity.

The HELP Committee hearing provided an important opportunity for advocates, scholars, and business executives to explain their support (and in one case, opposition) of ENDA to members of the Senate. It also marked an historic occasion—Kylan Broadus, Founder of the Trans People of Color Coalition, became the first openly transgender person to testify before the Senate, a milestone that Senator Harkin (and the Washington Blade) noted. Broadus spoke movingly about his experiences as a transgender American and with workplace discrimination, and described his transition as “a matter of living the truth and sharing that truth for the first time in [his] life.” Read more »

Last week, a federal appeals court in Georgia with a conservative reputation ruled in the strongest terms that “[a]n individual cannot be punished because of his or her gender-nonconformity. Because these protections are afforded to everyone, they cannot be denied to a transgender individual.”

In 2007, Vandy Elizabeth Glenn (who at that time went by Glenn Morrison) told her boss at the Georgia General Assembly’s Office of Legislative Counsel that she was planning on transitioning from male to female. He promptly fired her, after remarking that “it’s unsettling to think of someone dressed in women’s clothing with male sexual organs inside that clothing,” and describing a male in women’s clothing as “unnatural.”

In a unanimous opinion written by Judge Rosemary Barkett, the court held that “discriminating against someone on the basis of his or her gender non-conformity constitutes sex discrimination under the Equal Protection Clause” of the Fourteenth Amendment to the U.S. Constitution, and that “discrimination against a transgender individual because of her gender nonconformity is sex discrimination.”

This case is a huge step forward for LGBT rights—it will force many employers to think twice before they fire transgender workers for discriminatory reasons. And it sends a message to transgender men and women that they are legally protected from sex discrimination in the workplace. It also reaffirms the continuing importance of the Equal Protection Clause’s protection against discrimination on the basis of gender stereotypes today. Read more »