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Identity

In 26 States, You Can Still Get Fired for Being Trans

Half of LGBTQ Americans live in states where they're at risk of being fired for their identity.

by Diana Tourjée
Jul 19 2019, 3:35pm

Photo by Zackary Drucker via the Gender Spectrum Collection. 

It’s easy to assume that in the U.S. today, someone couldn’t lose their job because of blatant discrimination. But in 26 states, transgender people can be legally fired for no cause other than the fact that they are trans. According to the Human Rights Campaign, “an estimated 50 percent of LGBTQ Americans live in states where they’re at risk of being fired, denied housing, or refused service because of their sexual orientation or gender identity.”

Employment discrimination rights are very convoluted. There’s federal and state law, clashing interpretations of civil rights statutes between presidential administrations, and ongoing court battles that contradict each other—all debating whether being trans is a fireable offense.

Earlier this year, the Supreme Court agreed to hear the case of former funeral director Aimee Stephens, who says she was fired when she began transitioning. Stephens’ case is set to be heard on October 8, but in the meantime, here’s a breakdown of trans employees’ existing rights.

Can I be fired for being trans?

It depends on where you live. If you live in any of the 26 states that do not explicitly protect against employment discrimination based on gender identity, then your job could legally be terminated because you are transgender. However, as the National Center for Transgender Equality has outlined, nearly 20 years of federal rulings and determinations made by the Equal Employment Opportunity Occupation Commission (EEOC) say that “you have the right not to be fired or refused a job or promotion because you are transgender,” even without state-level protection.

Ok, so I have federal protection. Does that mean I can’t be fired?

You do have federal protection, but that doesn’t mean you won’t be fired, or that if you sue on the basis of discrimination, that you will necessarily win. “Federal courts have shown consistent support for the inclusion of transgender people under existing employment law for decades,” said Gillian Branstette, a spokesperson for the NCTE. That means: Even if you lose your job in a state without protections, you can sue based on federal law. (If you think you lost your job because of your gender identity, use the NCTE’s resources to know your rights and options available to you.)

Unfortunately, courts rule against precedent all the time. Right now, transgender civil rights at large are being debated, and precedent is being torn apart. The current politicized court system, and the Trump Administration, are disrupting what would otherwise easily be understood as court precedent that governs all states nationwide. At the center of all of this is Title VII of the Civil Rights Act of 1964.

Does Title VII Protect Me?

Title VII protects Americans against discrimination in employment on the basis of sex. For years, courts have ruled that “sex” includes gender identity, and the EEOC supports this. Barack Obama even issued an executive order in the summer of 2014 to clarify that “sex” does include gender identity. Since then, however, the Trump Administration has rescinded Obama’s definition. Now, the Supreme Court has agreed to hear three cases that will help determine whose definition stands.

Stephens’s case, R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, is one of those three. The impact of its outcome will be enormous—regardless of which way the court rules—and set the strongest legal precedent on the issue to date. If the Supreme Court overturns the lower court’s ruling in support of Stephens’ protection under Title VII, the rights of trans people in the workplace will be disastrously undermined. With a conservative majority Court, fear of this possibility is high.

“A decision overturning that mountain of precedent would endanger workplace protections for transgender people and anyone else stereotyped or stigmatized for their refusal to comply with an employer’s notions of gender,” Branstetter said.

As important as the legal framework, however, is the impact this case could have on the ability of transgender people to live and work with their dignity intact. The ADF has argued that a transgender person’s mere presence in a funeral home might “disrupt the healing process of grieving families” and that the employer in this case was acting “out of love” for Ms. Stephens by punishing her for being transgender.

“Both are horrifying arguments that suggest transgender people are mere mistakes that must be hidden in polite company or misguided objects of pity in need of correction,” Branstetter added. “The Supreme Court must surely understand the prejudiced viewpoint behind this case and the risk any validation of that viewpoint carriers for transgender people today and for generations of transgender people to come.”

Will the Equality Act protect transgender people’s rights?

Administrative or judicial interpretations of civil rights protections tend to be convoluted and unreliable. But, as the Supreme Court contends with what Title VII means, the greatest chance for protection lies in a bill backed by Representative Joe Kennedy III, The Equality Act, which would extend the protections of the 1964 Civil Rights Act to cover all LGBTQ people in the U.S.

As explained by Kennedy in an op-ed for VICE earlier this year, the Equality Act promises true and explicit freedom from discrimination to LGBTQ people in the contexts of housing, credit, public accommodations, education, federal financial assistance, and jury duty on the federal level, overriding discriminatory state laws or the absence of protection. The bill has passed through the Democratically-controlled House of Representatives. Republican gatekeeper Mitch McConnell will decide if it will ever see the floor of the Senate.

“Firing someone because of who they are and how they identify is discrimination—pure and simple,” wrote Kennedy. “No transgender American should be subjected to that discrimination at their workplace when they live their truth.”

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