Transgender Discrimination - The Lawsuit
A former employee of Saks Fifth Avenue is suing her former employer for transgender discrimination. Saks has moved to dismiss, arguing that "transsexuals are not a protected class" under Title VII of the Civil Rights Act. Saks claims that it "believes that all persons are protected against sex discrimination under Title VII" of the Civil Right Act. Yet its court filings say the exact opposite.
The Plaintiff, Jeyth Jamal, a transgender woman, alleges that her managers referred to her as a man, instructed her to use the men's bathroom, and pressured her to present herself in a more masculine way. She was also belittled and threatened by her colleagues.
The lawsuit is pending in federal court in Houston, TX.
Transgender Discrimination - The Law
The truth is, whether or not Title VII protects transgender individuals is an open question. Title VII protects certain employees against discrimination on the basis of race, color, religion, sex or national origin. The Supreme Court has not ruled on the issue of whether Title VII's prohibition against discrimination on the basis of sex extends to transgender discrimination, and lower court opinions are all over the map. As a result, some states, including New York, have passed legislation which explicitly makes it unlawful to discriminate on the basis of sexual orientation and gender identity. Unfortunately, New York is in the minority of states progressive enough to protect these people from discrimination. The federal government has been similarly slow to act. ENDA (a federal law designed to prohibit employment discrimination on the basis of LGBT status) continues to be held up in Congress.
Transgender Discrimination - The Upshot
How can discrimination against a person based on how that person expresses his or her gender not be considered gender discrimination? Does anyone honestly believe that the (alleged) treatment that Ms. Jamal endured is not related to her gender? If she was born a woman, would there be any question? Just imagine that a woman was referred to as a man, instructed to use the men's bathroom, and pressured to present her gender differently. Surely that is discrimination. Why does the fact that Ms. Jamal is transgender make it different? Either the courts' understanding of Title VII has to change, or the law must change to protect LGBT people from discrimination.