We held our first Transgender Law Institute at the National LGBT Bar Association’s Lavender Law Conference last Thursday.

We had about 75 people in attendance, from all over the country. It was an amazing gathering of talent, and I felt honored to chair the conference committee.

The Committee itself was amazing – Prof. Jennifer Levi of GLAD, Prof. Julie Greenberg of Thomas Jefferson Law School, Seth Marnin of Outten & Golden, Dru Levasseur of Lambda Legal, and Matt Wood of the Transgender Law Center. If you don’t know who these people are, they’re well worth looking up. They’re committed lawyers and scholars who have each contributed a tremendous amount to trans legal issues.

Here’s the agenda for the Transgender Law Institute along with the hypotheticals we used, and a list of resources available for download.

Some of these hypotheticals were quite interesting, and I think everyone learned a lot about how to protect the rights of trans clients. Here’s one example, that I presented with the wonderful Denise Brogan-Kator of the Rainbow Law Center in Michigan:

Read More…

I’m off for a few days of renewal and self-reflection to Hot Springs, North Carolina.

It’s been an incredibly busy summer, not the quiet one I hoped for.

Kindred Spirits is “a global network based in the Southern Appalachians near Asheville, North Carolina since 1993.” They put on a spiritual retreat every year where people get together to think about and be in the presence of the “spirit of transgender.”

A friend told me about it, and it sounded awesome. So we’re driving down together.

“Each of our four days together, we share in daily sacred circles. Our Laurel River hike culminates in a ritual swim-frolic. Special teaching sessions will be offered by some of our veteran attendees, often including various intuitive and shamanic sorts of work. Our ceremonies climax on an ancient Cherokee bald mountaintop with a 360-degree vista. This retreat can be a life-changing experience for you, connecting with your trans-spiritual family, as well as launching you further along your own spiritual path. You are encouraged to bring your own unique visions and expertise to share within this powerful gathering of your own kindred spirits.”

Read More…

Several years ago, my synagogue asked me to write something about being transgender and Jewish.

I grew up very, very devoutly religious, and I felt terrible about my feelings inside. It hurt me every day. Can you see it in that little face?

The piece has been published in our prayer book, Siddur B’chol L’vav’cha (which means “With All Your Heart,” a reference to the injunction in Deuteronomy 6:5 to love God with all your heart).

I thought you might find it interesting.

Growing up very religious, and believing very deeply, I thought a lot about God.

This prayer is about how I felt about being trans, and my relationship with God, as a young person in my pre-teen and early teen years, and how that resolved as I grew older.

Read More…

The Bilerico Project | Daily experiments in LGBTQ: As I discussed previously, the Glenn v. Brumby lawsuit is premised on the Equal Protection clause of the U.S. Constitution’s 14th Amendment (No state shall deny to any person the equal protection of the laws), rather than the federal civil rights statute.

This brilliant legal maneuver was permissible because Ms. Glenn worked for the state government. In ruling for Ms. Glenn on her first claim, but against her on her second claim, Judge Story said that their reasons for firing Ms. Glenn were not legit, but then he said they could be legit and they were legit on her second claim. He ground up perfectly good steak and made it into hamburger. So I like him for what he did for Ms. Glenn, but I don’t like the reasoning he used.

(If you are viewing this blog off-site, note that hyperlinks are available in the original at http://transworkplace.blogspot.com)

Read More…

On May 27, the Maine Superior Court, Androscoggin County, ruled on a case involving a claim of unlawful public accommodation discrimination by a transgender person.dennys-breakfast.jpg

In this case, the public accommodation involved was the bathroom of a Denny’s restaurant in Auburn, Maine.

In Freeman v. Realty Resources Hospitality, LLC, d/b/a Denny’s of Auburn, No. CV 09-199, the Maine Superior Court held, in a fairly simple decision, that, if it were true that the manager prohibited the plaintiff from using the women’s bathroom based on her gender identity, then that would be a violation of the Maine Human Rights Act.

It is, as far as I know, the first judicial decision in the U.S. on a claim of transgender public accommodation discrimination involving bathroom use. In the two previous bathroom use cases, one involved an employment discrimination claim based on bathroom rules, and the other involved a rental discrimination claim based on bathroom rules. I think the difference may be important, for those two cases denied the discrimination claims based on truly illogical reasoning.

Read More…

Alison Green writes the “Ask a Manager” workplace advice column, both on her personal blog and weekly for U.S. News & World Report’s Web site. She is also the co-author of Managing to Change the World: The Nonprofit Leader’s Guide to Getting Results.

This week, she addresses a reader question: is my transgendered coworker using the right bathroom?

A reader writes:

I have a question of how/if/when transgendered coworkers get to be treated as such in the workplace. Specifically, there is a man in our office (widely known as such) who wears women’s clothing, hairstyles, shoes, makeup, etc. every day, and refers to himself as ’she’. Some women in the office have been claiming that his use of the women’s restroom constitutes sexual harrassment. Employees of both sexes have claimed that if he is male, he’s violating company conduct and dress codes by wearing women’s clothing to work.”

(If you are viewing this blog off-site, note that hyperlinks are available in the original at http://transworkplace.blogspot.com)

Read More…

My question was in the New York Times today, answered by Dr. Laura Erickson-Schroth, who is working on “Trans Bodies, Trans Selves,” a resource guide for transgender and other gender-variant people:

Q: As a professor of law, specializing in workplace law and policy, I often consult with business organizations where employees are undergoing gender transition. One question that frequently comes up is whether transgender employees are mentally ill, given that the American Psychiatric Association still includes “gender identity disorder” (but not homosexuality). Some express concern that transgender co-workers will pose a sexual danger in the workplace. While I explain that there is no need to fear such a result based on my research with many hundreds of companies, I have difficulty explaining away the diagnosis. Can you provide a better explanation for the presence of “gender identity disorder” in the Diagnostic and Statistical Manual of the American Psychiatric Association?

Read More…

Read More…

Transgender Job-Seekers Face Discrimination | News | Advocate.com

Read More…

HR managers must be sensitive to and investigate discrimination claims reasonably before making decisions or taking action. Failure to do so can result in legal problems for the manager and his or her organization. The same applies to government agencies charged with investigating discrimination claims. In a recently released opinion, the U.S. Federal District Court for the Norther District of Iowa decided that the EEOC had failed to reasonably investigate before bringing charges against a trucking company. It has required the agency to pay the trucking company’s legal fees and costs, in the amount of $4.6 million.

As a side note, it is interesting to consider that the pending Employment Non-Discrimination Act might not permit attorney fees to the prevailing party, depending on changes that are currently still in Committee and have not yet been made public.

The commission filed a gender discrimination suit against the employer on behalf of 270 women it said were victims of discrimination. The U.S. District Court for the Northern District of Iowa found that “the EEOC did not conduct any investigation of the specific allegations of the allegedly aggrieved persons for whom it seeks relief at trial before filing the complaint — let alone issue a reasonable cause determination as to those allegations or conciliate them.” Part of the problem also appears to be that, according to the District Court, the EEOC’s complaint was not properly pled, indicating perhaps some lack of expertise by the attorneys in charge.

Read More…

The Albany Times-Union has reported on a recent court case involving discrimination against a transgender woman who was subjected to harassment and fired by the New York State Thruway Authority. She has been awarded more than $55,000 for her ordeal. She is still seeking reinstatement to her job.

A judge with the state Division of Human Rights has issued an order sustaining a complaint by Mackenzie W. Valentine, 29, a former Army dispatcher and military police officer from Cohoes who was diagnosed with gender identity disorder and underwent a court-approved gender change several years ago. The transformation took place around the time that Valentine, who changed her name from “Matthew Valentine,” began working for the Thruway Authority in Albany as a $15.30-an-hour dispatcher.

Read the rest of this entry »

The issue of religious freedom is one of the major issues swirling around the Employment Non-Discrimination Act. If my religion requires me to shun homosexuals, is my religious freedom being impacted if the law requires me not to?

The Supreme Court has answered in favor of the religious discrimination argument on two occasions. Significantly, these were not in the workplace context, and I believe that context would call for a different analysis and a different answer.

Read More…

The Senate held hearings to a nearly empty Committee chamber last week regarding the Employment Non-Discrimination Act. Only five Senators showed up, all Democrats, including the Chair of the Committee, Senator Harkin, the lead sponsor, Senator Merkley, and three other Senators, Senators Franken, Casey and Bennet. It left me with some fundamental questions about the process.

There was a stark difference between the House hearings, held in September, and the Senate hearings. The House testimony took a broad approach, full of stories by LGBT employees and statistics regarding discrimination, as well as discussions about various potential objections to the bill. The Senate hearing, to the contrary, was more narrowly focused on business and religious objections to the bill. There was one gay witness and no transgender witnesses. There were two government witnesses, a law prof, one witness from industry, and two witnesses who presented objections to the bill.

The question I have been asking myself is: Why did the Senate hearing look like this? Is it indicative of lack of interest in the bill by the Senate? Was it a sign that ENDA is going down in flames? Does the Senate care so little for transgender people that they included no transgender witnesses?

The answer to these questions are clearly no, no and no. The Senate hearing, to the contrary, upon reflection, showed a great deal of thought and care about ENDA. It showed that the people planning this hearing understand the political process intimately, and are doing everything in their power to pass ENDA, including the gender identity protections that will protect transgender employees.

It must be remembered that most of the Senate is on board with ENDA. Most of the Senate does not need to be convinced to vote for ENDA. If it were a simple majority vote, we would have ENDA, no problem. The problem is going to be the filibuster, which requires 60 votes.

So why was the hearing so sparsely attended, and why was the range of witnesses so narrow? Why was there only one gay witness and no transgender witnesses? I was a little disturbed by that at first. But I have come to the conclusion that the Senate hearing was actually very cleverly designed and orchestrated. It was very specifically targeted by some very smart people to appeal, not to the public, not to millions of viewers, but to 4 people.

According to my calculations, there are 56 likely yes votes according to my calculations. We need 4 more votes to overcome a filibuster. This entire hearing was designed to show the facts necessary to get those four to sign on to ENDA.

When I say the hearing was designed to appeal to 4 Senators, I don’t mean that there are only 4 more Senators who might potentially sign on to ENDA. In fact, there are 8 Senators who may wind up supporting ENDA, but we need at least 4 to overcome the Republican filibuster.

Who are these eight? They are pictured here. They haven’t said much of anything about ENDA, except that they’re undecided. Other than that, they have been pretty quiet. Do you know their faces? You should. These are the Senators who are on the fence.

From left to right, top to bottom, these are Senators Pryor, Byrd, Hagan, Bill Nelson, Murkowski, Lugar, Voinovich and Conrad.

And what are these Senators’ major objections? There are basically two:

1) Business objections – it may cost businesses, especially small businesses.

2) Religious freedom – it may require churches and religious schools to hire people who offend their religious principles.

These are not the Senators who are violently against LGBT people – such conservative Senators are a lost cause. The Senators targeted by the hearing need ammunition to understand the very narrow objections regarding businesses and religious freedom.

By the same token, it’s not surprising that they did not show up for the hearing. Firstly, only two of them are members of the Senate HELP Committee, so only two of them really could show up: Senators Murkowski and Hagan. Both are in very conservative districts. Both are known to be fair-minded about LGBT issues, and probably supportive of ENDA. But they, like the others i mentioned, are in moderately conservative districts, and the major objections there are the business objection and the religious freedom objection. If you can overcome those objections, you can bring those Senators on board.

That’s why the Senate hearings were very, very smart. Time and again, the hearing turned to discussions of how only a few lawsuits had been brought based on similar state laws, how businesses, in fact, profited from diversity and “bringing your whole self to work,” how almost no religious organizations had lawsuits against them, and how major religious organizations supported the religious exemption included in ENDA. Senator Franken was merciless in returning fire at the witnesses who questioned the religious exemption, and bringing the issue back there, over and over again, to the extent that he apologized for taking up the Committee’s time.

My guess is that Senator Franken didn’t just randomly show up and decided to ask a few questions. He was clearly prepared, and, despite his protests that he is not a lawyer, understood with devastating clarity exactly how the religious exemption worked. He fumfered a little over the questions, but I am prepared to completely forgive this, for in the end, he made the point well that the religious exemption in ENDA works differently from the religious exemption in Title VII. The ENDA exemption removes religious organizations entirely from the effect of the bill, whereas the Title VII exemption only gives religious organizations a pass on discrimination based on religious differences. The witness against ENDA on that point, Craig Parshall, tried to obfuscate and Senator Franken nailed him to the wall.

Go Senator Al! Here’s the You Tube of Senator Franken. The part I refer to starts at 4:00.

(If you are viewing this blog off-site, note that hyperlinks are available in the original at http://transworkplace.blogspot.com)

Read More…

What’s happening on ENDA? The House is practically on board, and the vote will happen in the next few weeks. My calculations, as shown in the Inclusive ENDA House spreadsheet, show 212 likely yes votes, with another 6 needed for passage. They are 98% of the way there.

The real fight on ENDA is in the Senate, where there are only 49 confirmed yes votes. That’s only 82% of the way there. Another 7 are likely yes votes, but they’re not saying, so they need to be targeted. Even so, advocates will need to drag the river to find 4 more bodies to get ENDA passed.

Political calculations and more after the jump.

Read More…

Some are concerned that ENDA will require employers to begin inquiring into their employee’s sexual orientation and gender identity, in order to avoid lawsuits alleging discrimination if there are few LGBT employees in the workplace. This concern is misplaced for several reasons. However, it has led some legislators to express concern about ENDA, including Senator Richard Lugar of Indiana. Senator Lugar seemed supportive of ENDA in the past, but recently released a letter expressing his reservations. One of his concerns was that ENDA will lead employers to probe their workers.

ENDA Will Not Lead Employers To Probe Their Employees

Senator Lugar’s letter said: “I also am concerned that ENDA would induce employers to probe the sexual orientation of their employees as a means of preparing for or preventing potential lawsuits or EEOC actions. Such a development would not be positive for employee privacy or workplace dynamics, and it could have unpredictable consequences for the fairness of hiring decisions. I understand that ENDA does not require such inquiries; however, many employers will see some degree of information about the sexual orientation of their employees as a vital element in dealing with potential litigation.”

This argument is mistaken on two levels.

Most significantly, Senator Lugar’s argument is that ENDA will cause employers to begin inquiring into people’s sexual orientation and gender identity because they’re afraid of being sued. The concern here appears to be that workers’ right to privacy would be infringed by concerned employers, leading to more discrimination, rather than less. This argument assumes that employees’ right to privacy of sexual orientation and gender identity has been protected in the past. In fact, as demonstrated by testimony at the recent Congressional hearing on September 23, 2009, and that of prior Congressional hearings in years past, there is already a great deal of discrimination against LGBT workers. The idea that workers are somehow now protected from discovery or suspicion of their sexual orientation or gender identity is a false notion. This argument seems to suggest that discriminatory employers will say: “We liked you before, LGBT employees, and never harassed or discriminated against you, but now that you’re protected by ENDA, we’re coming after you.”

This argument makes the claim that the anti-discrimination law is the cause of discrimination. That is not a claim backed up by any evidence.

Secondly, the idea that employers should collect statistics on their employees’ sexual orientation is rejected by ENDA itself. The text of the bill specifically prohibits the collection of statistics or the imposition of a “gay quota.” (Sections 4(f) and 9) The bill also prohibits “disparate impact” lawsuits claiming that there are not enough gays in the workplace. (Section 4(g))

Senator Lugar’s suggestion that ENDA will cause employers to start tracking their employee’s sexual orientation and gender identity ignores what ENDA specifically says.

Thus, the argument that ENDA will hurt LGBT employees by imposing reporting requirements is mistaken.

(If you are viewing this blog off-site, note that hyperlinks are available in the original at http://transworkplace.blogspot.com)

Read More…