Affirmative Action Office - Stanford Linear Accelerator Center

(Text in part by: Human Rights Campaign Foundation with inserts, modifications and edits by S. Gee 4/18/07)

Generally speaking, employers have a right to regulate employee appearance and behavior in the workplace for reasonable business purposes. Requiring conformity to accepted community standards of dress and behavior arguably serves the business purpose of promoting an orderly workplace and making employees and customers comfortable. In contrast, some cases recognize that discrimination in this area based on gender stereotypes can be a form of unlawful sex discrimination. Tension exists in the law between what constitutes reasonable regulation, on the one hand, and what constitutes stereotyping, on the other hand.

Although few communities today are ready to accept, for example, an anatomically female person's choice to live as a man, there is no law on the books that require that all anatomically female people possess a "female" self-identity and a "feminine" sense of dress, manner and style. Since it has been held that forcing[1] a person to adhere to another person's stereotype view of them is unlawful, we can safety conclude that discriminating against a person because they do not fit the traditional stereotype characteristics of a woman or man would also be unlawful. There is much legal precedent for the logic of this premise. While current federal legislation has yet to catch up to case law, the following U.S. cases[2] offer insight into the direction of our judicial system as it grapples with the transgender and gender identity issue in the employment setting and disability arena.

Here in California, under the Poppink Act [see Cal. Gov't Code § 1296(i)(5))& (k)(6) - effective in January 1, 2001] the State's Fair Employment and Housing Act (FEHA) was amended and the definition of disability was modified to include transgender and gender identity. Currently, persons who are transgender are medically construed to have gender identity disorder[3] so are covered under the disability definition and, hence, are entitled to protection against discrimination during employment.

Under FEHA, any physical or mental condition that limits a major life activity is a protected disability [Cal. Gov't Code § 12926(i) & (k)]. Major life activities include physical, mental, and social activities and working [Cal. Gov't Code § 12926(i)(1)(C)]. An impairment limits a major life activity if it makes achievement of the activity difficult [Cal. Gov't Code § 12926(i)(1)(B)].

FEHA also protects people who are "regarded or treated" as having a disability, even if they do not. And it also protects people who have a record or history of having a disability. Cal. Gov't Code § 12926(i)(3) & (4) and 12962(k)(3) & (4).

The FEHA disability provisions protect transgender individuals from discriminatory adverse employment actions on the basis of disability. The provisions also require employers to provide reasonable accommodations that enable transgender employees to live according to their gender identity, in keeping with the standards of care for the treatment of gender identity disorders.

Typical examples of reasonable accommodation would include allowing a transgender person to dress according to their gender identity and arranging for safe and appropriate bathroom use. To illustrate, reasonable accommodation for a transsexual employee means permitting the person to undergo sex-reassignment, if he or she is transitioning on the job, or respecting the person's post-reassignment sex, if he or she has already completed sex-reassignment.

For many gays, lesbians, bisexuals and transgendered people, and sexual orientation are interrelated. For instance, for some lesbians, being "lesbian" not only is about having a sexual preference for other women, but also is about a certain dress, manner or style — a way of expressing gender that is different from a woman who is not a lesbian. From a legal standpoint, however, sexual orientation has not been considered the same thing as gender identity. Consequently, it is conceivable that an employee working in a job that is protected against sexual orientation would not be protected against gender identify discrimination.

Although Title VII of the Civil Rights Act, a federal legislation enacted in 1964, prohibits workplace sex discrimination, federal courts of appeal have uniformly held that Congress did not intend that the term "sex" include transsexuals or homosexuals. More recently, however, the federal courts have recognized that sex discrimination can involve gender stereotypes about traits, and that Congress' 1964 understanding of "sex" should not necessarily control how the law is construed today.

Besides California, Minnesota, New Mexico and Rhode Island are the only other states that explicitly include "gender identity" in the states' anti-discrimination laws. Many states[4], however, have law cases where the court or the administrative agency on human rights ruled that transgender people are protected from discrimination.

To recap coverage, transgender and gender identity issues are not covered specifically under federal laws except when it falls under the American Disabilities Act as a condition called 'gender identity disorder'. Some states, California included, specifically protect gender identity and expression individuals under their fair employment laws. There is a body of case law which can be used to build a legal argument against discrimination on the basis of gender identity and research would have to be done to identity the specific case(s) which might apply to a specific discriminatory act or violation.

Using a woman to illustrate the difference in coverage and how sex, sexual orientation and gender identity differ, discrimination on the basis of sex (e.g., because you are a woman as opposed to a man) is covered under federal and state law. Discrimination on the basis of sexual orientation (e.g., because you are a homosexual woman as opposed to a heterosexual woman) is covered under most states laws. And discrimination on the basis of gender identity and expression (e.g., because you are a woman dressed, living and behaving like a man) is covered under federal law under the American Disabilities Act, some state laws and a body of case law addressing transgender, gender identity discrimination issues.

[1] One could argue that forcing includes the withholding of benefits normally afforded employees in a non-discriminatory workplace.

[2] California. See, e.g., Smith v. Rasmussen, 57 F. Supp. 2d 736, 740-743 (N.D. Iowa 1999) - providing a detailed summary of the current medical perspective on transsexualism

Pinneke v. Preisser, 623 F.2d 546 (8th Cir. 1980) - describing sex reassignment as the only recognized and effective treatment for transsexualism

Doe v. State, 257 N.W.2d 816 (Minn. 1977) - describing transsexualism as "a very complex medical and psychological problem which is generally developed by individuals early in life"

G.B. v. Lackner, 80 Cal. App. 3d 64 (Cal. Ct. App. 1978) - describing the seriousness of transsexualism as a medical condition

J.D. v. Lackner, 80 Cal. App. 3d 90 (Cal. Ct. App. 1978) (same). See also Doe v. United States Postal Service, 37 Fair Empl. Prac. Cas. (BNA) 1867 (D.D.C. 1985) - holding that a male-to-female transsexual, who was denied employment with the U.S. Postal Service on account of her transsexuality, was eligible to pursue a discrimination claim under the federal Rehabilitation Act

Conway v. City of Hartford, No. CV 950553003, 1997 WL 78585 (Conn. Super. Ct. Feb. 4, 1997) - holding that transsexualism is a covered mental disorder under the Connecticut statute prohibiting discrimination on the basis of disability.

[3] "Gender Identity Disorder" (GID) as a Medical Diagnosis - Unlike homosexuality, transgenderism is still deemed a mental illness by the American Psychiatric Association. The GID diagnosis can be a dual-edged sword for transgender and gender identity individuals; especially transitioning employees. The downside is that in order to obtain the medical services and non-discrimination protection, they must first subscribe to a GID diagnosis. Unfortunately all medical disorders come with some social stigmatization. The acceptance of social stigmatization as a price for treatment and protection seems unfair to many affected by this dilemma. However, in the absence of specific legislation protecting the gender identity and expression population, it is recognized that non-discrimination on the basis of disability at least offers some measure of protection against discrimination and provides for some avenue of redress.

[4] The State of Connecticut: Transsexuals may bring claims of sex discrimination under existing state law, based on Connecticut Commission on Human Rights and Opportunities ruling Nov. 2000.

The State of Massachusetts: Transgenders are protected under state law prohibiting sex and disability discrimination, based on Massachusetts Commission Against Discrimination Ruling Oct. 10, 2001.

The State of New Jersey: Transgender workers are protected under state law prohibiting sex and disability discrimination, based on the 3rd U.S. Circuit Court of Appeals ruling in Carla V. Enriquez, M.D. v. West Jersey Health Systems, July 3, 2001.

The State of New York: Transgenders are protected under state law prohibiting sex discrimination, based on court ruling.

Discussion Topics

Gender Identity