Work Protections for Trans People at Starting Gate

(WOMENSENEWS)–In the fall of 2004, retired U.S. Army Colonel Diane Schroer applied for a specialist in terrorism and international crime position with the Congressional Research Service at the Library of Congress. Schroer served in the U.S.

Armed Forces for 25 years, holds master’s degrees in history and international relations and was considered the top candidate for the position. She was even offered the position; which she accepted.

At the time of application, Schroer was in the process of her gender transition and had applied using her male name. However, to lessen confusion, Schroer intended to start her new position as a woman and invited her future supervisor out to lunch to explain her plan. During this lunch, Schroer explained that she was transgender and would be coming to work as a woman. The representative of the Library of Congress told Schroer at the end of the lunch that she had a lot to think about.

Schroer received a phone call the next day in which the Library of Congress rescinded its offer, stating that it did not believe she was a good fit. Schroer filed a Title VII sex discrimination lawsuit and in 2008, the U.S. District Court of the District of Columbia handed down a landmark decision in her favor.

The Schroer decision is a sign of progress in the legal landscape of employment protections for transgender people. Unfortunately, Schroer’s experience of blatant discrimination is all too common for transgender people. In revealing her transgender identity, Schroer went from " hero to zero in 24 hours." All around the country, trans people report similar experiences.

And the history of advocating to extend employment discrimination to this population contains more losses than victories. In February 2007, the city manager of Largo, Fla., was fired after announcing her plan to transition from Steven to Susan. Despite the publicity this incident received, eight months later members of Congress decided to drop protections for gender identity from the Employment Non-Discrimination Act before putting the bill up for a House vote.

This move effectively sent the signal that employment discrimination based on gender identity would remain legal for the foreseeable future, leaving people around the nation vulnerable and without recourse.

Opportunity for Change

Due to the lack of clear and consistent policy protections, it is often unclear if discrimination perpetrated against a transgender person is illegal. This lack of clarity leaves many trans people vulnerable to rampant discrimination without any obvious vehicle for recourse. On the other hand, the current state of policy protections (or their near absence) offers an opportunity.

As the legal landscape for transgender employment protections is literally still being written, advocates have the opportunity to shape policy so that it captures the nuances and subtleties of discrimination as experienced by trans people. Like the influence of feminist analysis in the development of sexual harassment law, non-discrimination laws must reflect the experiences of trans people.

By using lived experiences to shape policy decisions, more robust laws that provide actual protection may be passed. At the same time, however, it must be understood that no one policy will solve transgender employment discrimination. After all, transgender Californians have been protected from employment discrimination since 2004, but in a recent survey 70 percent of transgender respondents reported experiencing workplace discrimination and harassment directly related to their gender identity.

Laws and policies at multiple levels must be accompanied by cultural change to fight transphobia in U.S. society. Passing a federal employment non-discrimination act is only one leg of this multipronged strategy. Individual workplace policies, sensitivity training and raising public awareness are also essential to ending employment discrimination. Additionally, while employment discrimination is a problem for the transgender population that cannot be ignored— especially as employment is so closely tied to health care, housing and other such basic needs—advocates must also recognize that the transgender population faces multiple discriminations outside the arena of employment.

A truly effective strategy must incorporate meeting the daily needs of transgender people in addition to challenging the structures of power (including race, class, sexuality and physical and mental ability in addition to gender) that often act as barriers to meeting these basic needs.

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Kyla Bender-Baird is a doctoral student at the CUNY Graduate Center in New York. She focuses on the sociology of gender, bodies and the law.