putting the “t” in transparent · 2015. 8. 13. · putting the “t” in transparent: bringing...

HARTFORD | STAMFORD | WASHINGTON, DC | GREENWICH | LAKEVILLE

www.shipmangoodwin.com © Shipman & Goodwin LLP 2015. All rights reserved.

Putting the “T” in Transparent: Bringing Transparency to Transgender

and Gender Identity Issues Linda L. Yoder

Peter J. Murphy

Melika S. Forbes

www.shipmangoodwin.com © Shipman & Goodwin LLP 2015

We will cover…• Transgender Discrimination Statistics

• Relevant Federal and State Law

� Recent/Pending Legislation

• Creating an Inclusive Environment: Issues to

Consider

� School context

� Employment context

• Best Practices


Discrimination: K-12In a national survey, what % of students who

expressed a transgender identity or gender non-

conformity while in grades K-12 reported

harassment?

1 2 3 4

0% 0%0%0%

1. 6%

2. 12%

3. 35%

4. 78%


Discrimination: Employment SettingIn a national survey, what % of employees who

expressed a transgender identity or gender non-

conformity reported an adverse job outcome such

as being fired, not hired or denied a promotion?

1 2 3 4

0% 0%0%0%

1. 26%

2. 47%

3. 71%

4. 90%


National Landscape: Federal Law Protection

• Gender-identity protection explicitly precluded

� Americans with Disabilities Act

� Federal Rehabilitation Act

• Some, but not uniform, gender-identity protection

recognized

� Title VII of the Civil Rights Act of 1964

� Title IX of the Education Amendments of 1972


Title VII of the Civil Rights Act of 1964

• Prohibits employment discrimination on the bases of

race, color, national origin, sex and religion

� Protects against not only intentional discrimination, but

disparate impact discrimination resulting from facially

neutral policies

► Applicable to recruiting, hiring, advancement, harassment, hostile work

environment, segregation and classification of employees, compensation

and other employment terms, conditions and privileges and retaliation

� Enforced by the Equal Employment Opportunity

Commission (“EEOC”)


Title IX of the Education Amendments

of 1972• Prohibits all forms of sex discrimination in schools, including:

� Gender-based harassment; sexual harassment; and sexual violence

� Affords:

► Right to equal treatment; equal access to athletic opportunities and benefits; right to access education free from sexual assault/violence; right to access education free from sexual and gender-based harassment

� Enforced by the U.S. Department of Education

(“USDOE”)


Complaints of Harassment and Title IX

• USDOE recently took the position that Title IX

protects transgender and gender non-conforming

students

• Peer on peer harassment

� Actionable against schools and districts if1) harassment “severe, pervasive and objectively offensive”

2) acts of harassment occurred in situation under the direct control of school officials

3) school officials had actual knowledge, but were “deliberately indifferent”

4) causal relationship between deliberate indifference and injury suffered


Federal Law: Historical Developments

1989

• U.S. Supreme Court found that an employee could pursue a claim under Title VII for sex discrimination for failing to conform to gender stereotypes. See Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).

2006

• U.S. Department of Justice (“USDOJ”) takes the position in litigation that Title VII’s prohibition on sex discrimination does not per se cover discrimination based on gender identity or transgender status. See Schroer v. Billington,, 577 F. Supp. 2d 293 (D.D.C. 2008).


Federal Law: Historical Developments

2000s

• Various circuits of the U.S. Court of Appeals found that the definition of “sex” under federal non-discrimination laws encompasses both biological differences and failure to “conform to socially prescribed gender expectations.” See e.g., Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000); Rosa v. Park West Bank & Trust Co., 214 F.3d 213 (1st Cir. 2000); Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004); Glenn v. Bromby, 663 F.3d 1312 (11th Cir. 2011).

• However, some courts simultaneously rejected extending protections under Title VII to transgender persons. See e.g., Etsitty v. Utah Transit Auth., 502 F.3d 1215 (10th Cir. 2005).


Federal Law: Recent Developments

2011

• Office of Personnel Management announces federal government’s policy to provide a workplace free of discrimination based on gender identity. See http://www.opm.gov/policy-data-oversight/diversity-and-inclusion/reference-materials/gender-identity-guidance/

2012

• EEOC ruled that discrimination on the basis of gender identity is sex discrimination. See Macy v. Holder, Appeal No. 0120120821 (EEOC, April 20, 2012).


Federal Law: Recent Developments

2013

• Employment Non-Discrimination Act (“ENDA”)—proposed legislation that would prohibit discrimination in hiring and employment based on sexual orientation and gender identity—passes 64-32 in the Senate and is awaiting vote in the House.

2014

• President Obama issues executive order prohibiting gender identity discrimination in federal employment and government contracting. See Exec. Order No. 13,672, 79 Fed. Reg. 42,971 (2014).

• USDOJ reverses its prior position and “determine[s] that the best reading of Title VII’s prohibition of sex discrimination is that it encompasses discrimination based on gender identity, including transgender status.” See Memorandum, OFFICE OF THE ATTORNEY GENERAL, available at http://www.justice.gov/opa/pr/attorney-general-holder-directs-department-include-gender-identity-under-sex-discrimination (2014).


National Landscape: State Law Protection


Connecticut Law: Developments

1991

• Connecticut passes comprehensive anti-discrimination law concerning sexual orientation in employment, housing, public accommodations and credit. See Public Act No. 91-58, § 3 (1991).

2000

• Commission on Human Rights and Opportunities (“CHRO”) issues declaratory ruling that the state’s sex discrimination laws provide protections for transsexual individuals. See http://www.ct.gov/chro/cwp/view.asp?a=2526&Q=315942

2011

• “Gender identity and expression” added to state anti-discrimination laws. See Public Act No. 11-55 (2011).


Connecticut Law (effective as of October 1, 2011)

• Public Act No. 11-55

� Added “gender identity and expression” to the state’s anti-

discrimination laws

� Protects against discrimination in employment, education,

housing, public accommodations and in any other areas in

which sex discrimination is prohibited

� Authorizes persons to file complaints with CHRO


Definitions

• “Gender Identity or expression” means…� “a person's gender-related identity, appearance or behavior, whether or

not that gender-related identity, appearance or behavior is different

from that traditionally associated with the person's physiology or

assigned sex at birth, which gender-related identity can be shown by

providing evidence including, but not limited to, medical history, care

or treatment of the gender-related identity, consistent and uniform

assertion of the gender-related identity or any other evidence that the

gender-related identity is sincerely held, part of a person's core identity

or not being asserted for an improper purpose.” See Conn. Gen. Stat. §

46a-51(21).


Definitions

• “Public accommodations” means

� “any establishment which caters or offers its services

or facilities or goods to the general public…”

� Connecticut public schools and higher education

systems are considered places of public

accommodations, however, distinct laws were passed

to prohibit gender identity and expression

discrimination in these areas


Establishing Gender Identity

• Non-exhaustive list:

� Medical history

� Care and treatment of gender-related identity

� Non-medical:

► Consistent and uniform assertion of a gender identity

► Any other evidence that gender identity is sincerely held

or part of a person’s core identity and is not being

asserted for an improper purpose


Is the state law applicable to every

employer/employee in Connecticut?• No, there are several exemptions/exceptions:

� Employers with 2 or less employees

� Employers with positions with a “bona fide occupational qualification” for a

non-transgendered person

� Religious corporations, entities, associations and societies regarding 1) whom

they employ to perform work or 2) with respect to matters of discipline, faith,

internal organization or ecclesiastical rules, customs or laws established by

such organizations

� Employees employed by their spouse, children or parent or those in domestic

service

� Reserve Officer Training Program (“ROTC”) programs


Is the state law applicable to every

school in Connecticut?

• No, there are several exemptions/exceptions:

� Religious educational institutions

� Private schools


Creating A Non-discriminatory

Environment: Issues to Consider

• Name/Gender-markers changes

• Use of appropriate names and pronouns

• Bathroom and locker rooms

• Confidentiality and privacy

• Dress codes

• Dignity and respect

• Unconscious bias


SCHOOL CONTEXT


Consider…• A school district required a 7th grade student who

presented as male and completed a court-ordered name

change to use the nurse’s office for restroom and to

change in and out of his gym clothes. Also, on an

overnight field trip, the school assigned the student to

the female cabin initially, but after protests from the

student’s family assigned him to one by himself (and

his father as a chaperone).


Does this constitute gender identity

and expression discrimination?

1 2 3

0% 0%0%

1. Yes

2. No

3. It depends


Student v. Arcadia Unified School District, DoJ Case

No. DJ 169-12C-70, OCR Case No. 09-12-1020 (2013)

• OCR and the DoJ thought so…

� Violation of Title IX

� Resolution agreement negotiated

► School district must treat student as “male” and stop singling

him out from other males

► District must revise policies to state transgender and gender

non-conforming students are entitled to equal access and

conduct district-wide training with personnel and students


Creating a non-discriminatory

learning environment

• Connecticut Safe School Coalition drafted guidelines

for Connecticut schools to comply with the gender

identity and expression non-discrimination laws

� Adopted by CHRO

� Makes clear that law is applicable to not only

students, but to parents/guardians and school

employees


CHRO’s Guidance Recommendations

• Use student’s chosen name and gender marker

consistent with gender identity, as affirmed by

parent/guardian, on all records

� Court-ordered name change not required

� Consider storing prior records in a separate

confidential file

� Parents may request retroactive amendment of all

records under FERPA



• Use pronoun consistent with student’s gender identity

• Students should have access to bathrooms and locker

rooms consistent with his/her gender identity� Sensitivity of other students or their parents is not an overriding

consideration

� However, if a student or administrator feels there is a safety or privacy

concern and it is in the best interest of the student, a student—

transgender or non-transgender—may be provided access to a non-

stigmatizing alternative such as a single-stall “unisex” bathroom or

private area in the locker room


• Permit participation in sex-segregated activity based on

asserted gender identity

� Try to eliminate gender-sorting

� Consider free-choice play areas

• Permit dress based on asserted gender identity

� Consider rewording dress code to make gender-neutral

• Try to not show anxiety or discomfort with a student’s (or

parent/guardian’s) gender fluidity



Athletic Competitions

• Connecticut Interscholastic Athletic Conference

(“CIAC”) advises students who wish to participate in

gender specific sports based on their gender identity

to address the issue with their local school district

� CIAC defers to the determination of the school

district regarding gender identity


EMPLOYMENT CONTEXT


Consider…

• A funeral home director, biologically male, worked for

her employer for six years and had a satisfactory job

performance evaluation. She informed her employer

that she intended to undergo surgery to transition to a

woman and would soon present as a woman. Two

weeks later, the employer terminated the director and

allegedly called her plans “unacceptable.”


Does this constitute discrimination?

1 2 3

0% 0%0%

1. Yes

2. No

3. It depends


EEOC v. R.G. & G.R Harris Funeral Homes

• Case currently pending in the U.S. District Court for

the Eastern District of Michigan (Case No. 2:14-cv-

13710)

� One of two cases filed by the EEOC alleging sex

discrimination based on transgender status

► Other case: EEOC v. Lakeland Eye Clinic � same facts

except discharge came after employee, biologically

male, began presenting as a woman


Consider…

• An employee, biologically male, decides to openly present as a

woman. Her supervisor allegedly refers to her by her birth

name and with masculine pronouns after notification that she

legally changed her name as well as questioned her fitness to

perform the job. The employee was allegedly also instructed

to remove her earrings and was disciplined for wearing a wig.

Some of the employee’s colleagues discussed her medical and

sexual history.


Does this constitute discrimination?

1 2 3

0% 0%0%

1. Yes

2. No

3. It depends


Is it a hostile work environment?

1 2 3

0% 0%0%

1. Yes

2. No

3. It depends


Outcome to be determined…

• Case currently pending before CHRO

� However, based on news reports, we know that

the…

► Employee was discharged after being placed on

administrative leave and exhausting vacation and sick

days

► Employer, a public entity, stated discharge was “an

administrative—not a disciplinary—separation.”


Creating a non-discriminatory work

environment• Permit employee use of bathroom corresponding to

gender identity

• Recognize self-identity, regardless of gender

reassignment surgery or documentation

� Use preferred name and corresponding pronoun

� If unsure, ask in private

� Change personnel records upon request



environment• Institute gender-neutral dress codes

• Permit dress in accordance with gender identity

• Recognize and address contributing factors to a hostile

work environment

� E.g.: asking of excessively personal questions,

discussing transgender employee’s status or medical

history, refusal to use or learn preferred name or

corresponding pronoun



environment

• Ensure that health insurance policies are transgender-

inclusive

• Maintain confidentiality

• Prohibit inquiries into an employee or applicant’s

sex, gender or surgical history


Best Practices• Design, disseminate and apply consistently written

non-discriminatory policies

� Especially in areas where transgendered people have high

vulnerability to discrimination such as bathrooms, dress

codes, harassment and hostile work environments

• Provide information, training and educational

opportunities

• Biases of others are not a valid reason for

discrimination


Best Practices

• Promptly and thoroughly investigate claims of

gender-identity and expression discrimination

� Periodically conduct self-assessment

� Take complaints of harassment seriously

• Respect privacy

� Do not ask about medical history

� Do not “out” transgender people to others


Questions

putting the “t” in transparent · 2015. 8. 13. · putting the “t” in transparent: bringing...

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