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Starbucks Holds Life-Saving Benefits Over Trans Workers’ Heads

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Zane McNeill

OVERLAND PARK, KAN.—Maddie Doran worked at the Starbucks on 75th Street and Interstate 35 for 10 months, “not only to pay the bills,” she says, but because the company’s health insurance covers gender-affirming surgery. Many health plans exclude gender-affirming care, despite the fact that the medically necessary procedures can be lifesaving—Harvard research shows gender-affirming care can significantly reduce suicidal ideation, for example. 

And without Starbucks’ health plan, Doran’s facial feminization surgery would cost her $42,000.

But after Doran joined a union campaign at the store this winter, the benefit “was waved over my head” as an anti-union scare tactic, she says, with one store manager privately telling her, “You’re here for the gender-affirming surgeries and I’m worried about you [losing that benefit and] becoming the minority [in contract negotiations], because ultimately the union decides.”

An emailed statement from Starbucks to In These Times said that the company would “bargain in good faith” but could make no “guarantees about any benefits,” asserting that “even if we were to offer a certain benefit at the bargaining table, a union could decide to exchange it for something else.” 

Losing a benefit because of your union is extremely unlikely. As Katie Barrows, president of the Nonprofit Professional Employees Union, explains: “Employees form unions to improve their workplaces. Additionally, when employees organize, they are the union, which means they negotiate and vote to approve their union contract—union members are not going to vote for a contract that leaves them worse off.… I’ve only seen union contracts drastically improve workers’ pay, benefits and working conditions.” 

Before Doran could get the surgery, however, she lost the health coverage anyway. She and two other outspoken union supporters, Michael Vestigo and Alydia Claypool, were fired in the same week. The store accused Doran of stealing money; she denies the charge and believes the three were targeted as retaliation.

As a union organizing wave has pulled in more than 300 Starbucks stores so far, workers have alleged egregious union-busting tactics by the company, including intimidation, retaliatory firings and scheduling reductions. Interim CEO Howard Schultz announced in April that a new benefits expansion will exclude union stores.

In at least one other store, as reported in Bloomberg and Them, managers specifically threatened that unionizing could jeopardize health benefits for trans employees. These alleged threats prompted Workers United to file unfair labor practice charges against Starbucks with the National Labor Relations Board (NLRB), on behalf of employees at Doran’s store and an Oklahoma City location.

Doran says her firing represents how gender-affirming healthcare can be used as a cudgel against unionization efforts. Retaliatory store closures or firings can especially hurt trans employees who rely on hard-to-find benefits. 

Doran and her coworkers publicly announced their union campaign in January and held a walk out and strike in March to protest unfair working conditions. At one point, Doran says, managers tried to throw employees off the grounds of a local hotel where they’d been called for a mandatory anti-union meeting. When a group of workers gathered outside after the meeting, Doran says, a Starbucks manager told them, “You all need to go,” and then complained to the hotel front desk, who said the police had been called.

Doran, Vestigo and Claypool all made pro-union statements in the media, and all were terminated in April. The NLRB filed a complaint against Starbucks in May, alleging the firings were retaliatory, and Claypool has since been reinstated. 

The union ballots came back a week after the three were fired. The vote was 6–1 in favor of a union, adding Overland Park to the more than 200 Starbucks locations that have unionized so far this year.

Transgender people are unemployed at a rate three times higher than the national average, according to a 2015 National Center for Transgender Equality study, and face a greater risk of underemployment and poverty than other workers. They are subject to higher rates of hiring bias, on-the job discrimination and firings, greater wage inequity and unequal access to healthcare.

While Starbucks’ 2018 rollout of transgender health benefits was celebrated by LGBTQ advocates and media platforms, some workers at individual stores have reported trans-discriminatory practices. In 2018, Maddie Wade, a transgender employee, sued Starbucks for discrimination, alleging her manager repeatedly misgendered her. In a 2020 survey by hospitality union Unite Here of workers at airport Starbucks stores, which are run by a subcontractor, at least four employees reported discrimination such as “offensive and transphobic comments from managers.” A 2020 BuzzFeed story details three workers at different Starbucks stores being outed, hitting snags accessing gender-affirming benefits and being deadnamed. 

“Starbucks will posture that they care about queer people,” says Doran, “and they will posture that they care about any minority group, but the second you try to have a democratic workplace or speak up for yourself or don’t let them bully you—suddenly you’re public enemy number one, and they completely shut you out.” 

This blog is printed with permission.

About the Author: Author’s name is Zane McNeill. Zane is the founder of Roots DEI Consulting and Policy and is comanager of the labor rights group Rights for Animal Rights Advocates.


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Don’t Leave Equality To The Supreme Court

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Are you a woman? Imagine if you were fired for wearing a skirt to work.

Are you a man? Imagine getting fired for not wearing a skirt to work.

This sounds ridiculous, right? It sounds unfair. But for many Americans, it’s a reality we must face every day.

Take the case of Aimee Stephens, a Detroit funeral home employee. Aimee is transgender, a woman assigned male sex at birth.

For most of her career, she went undercover, wearing men’s clothing every day and pretending to be a man. When she finally told her boss that she was in fact a woman and would like to start wearing work-appropriate women’s clothing, she was fired.

In 29 states, there are no protections against workplace discrimination of this sort for transgender people like me. If I lived in Michigan like Aimee, my employer could fire me at will, just because I’m transgender. (In fact, I could also be denied housing, credit, or public accommodations.)

Facing this injustice, Aimee Stephens sued. Her case against her employer has now made it all the way to the Supreme Court.

The court will decide whether firing someone because they’re transgender constitutes discrimination “on the basis of sex,” which would be illegal under the Civil Rights Act. If they rule in favor of Stephens, transgender Americans would finally be afforded the same protections that everyone else has as a right.

The Trump administration has argued that the Civil Rights Act doesn’t protect people on the basis of sexual orientation or gender identity. But advocates have countered that it does apply, since discrimination along these lines punishes people who defy stereotypes attached to their assigned sex.

Whatever the court decides, there’s no disputing that transgender people in the United States face alarmingly high rates of unemployment and poverty. In fact, we’re twice as likely to live in poverty as the general population, and 30 percent of us have experienced homelessness at some point.

Against this backdrop, housing and employment discrimination are an added devastation — and in all likelihood part of the reason these numbers are so high in the first place.

So it’s no exaggeration to say the Supreme Court’s ruling will have a drastic material impact on the millions of transgender people living in the United States. Allowing this discrimination to continue will threaten many more with unemployment and economic hardship.

With the court’s current right-wing majority, that’s a real danger. But Congress could address it by explicitly legislating anti-discrimination protections — for the workplace, housing, credit, and everything else — for this vulnerable group.

In fact, the House of Representatives has already passed the Equality Act, which would clearly codify the inclusion of gay, lesbian, transgender, and non-binary people in Title VII of the 1964 Civil Rights Act. However, the GOP-controlled Senate has refused to consider it.

Without this legislation, the rights of millions of Americans like me are at the mercy of this Supreme Court.

No matter how the court rules, it’s the responsibility of Congress to ensure that “freedom and justice for all” includes transgender Americans, too. We need laws to prevent people like Aimee Stephens from losing their livelihoods due to employer prejudice.

We’re supposed to be a free country. We’re supposed to be an equal country. It’s time to make it that way.

This article was originally published at Daily Kos on October 10, 2019. Reprinted with permission.

About the Author: Theo Wuest is a Next Leader at the Institute for Policy Studies. This op-ed was distributed by OtherWords.org.

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Texas has a new plan to discriminate against LGBT people

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Texas’ anti-transgender bill has seemingly stalled, but inspired by North Carolina, Republican state lawmakers have a new plan to expand discrimination against LGBT people.

Last month, Texas seemed on track to follow in the footsteps of North Carolina’s HB2 and pass its own bill, SB6, mandating anti-transgender discrimination across the entire state. Lt. Gov. Dan Patrick (R) launched a massive misinformation campaign to scare up support of the bathroom bill, and the Senate passed it, terrifying the trans kids and families who testified against it. The bill was blocked in the House by various House Republican leaders who indicated they believed it was unnecessary.

But now, those House Republicans have introduced a new bill that looks awfully familiar.

Unlike the various complicated aspects of SB6, HB 2899 does only one thing: ban cities from passing nondiscrimination protections. To that end, it also would nullify any municipal nondiscrimination ordinances already in place.

This approach strongly resembles the “compromise” bill North Carolina lawmakers recently passed to replace HB2, which banned cities and school districts from passing any ordinance “regulating private employment practices or regulating public accommodations” until December 1, 2020.

These both, in turn, follow the example set by Tennessee and Arkansas—which have “preemption” laws that prohibit cities from protecting any class from discrimination that isn’t already protected under state law, which amounts to a de facto ban on LGBT protections. North Carolina’s law sloppily allows protections that already exist to remain in place, but Texas takes the approach a step further. By banning and nullifying all nondiscrimination ordinances, HB 2899 would prohibit cities from doing anything to address discrimination on the local level.

HB 2899 would effectively be a statewide license to discriminate against LGBT people. By regulating schools, it would also have severe consequences for LGBT students, who could not be protected from bullying. Trans students could not be guaranteed the right to use the restrooms and other facilities that match their gender identity.

Given the NCAA and NBA were convinced to abandon their boycotts of North Carolina over its replacement law, it seems likely that Texas lawmakers expect their new plan will similarly be safer from economic backlash. This is despite the fact that many cities and states are maintaining their bans on publicly-funded travel to North Carolina.

House State Affairs Committee Chairman Byron Cook (R), who blocked the Senate anti-trans bill, called HB 2899 “the right kind of balance” between “privacy”—i.e. discrimination against transgender people—and avoiding “a chilling effect on business.”

Cook’s committee will consider the new bill next Wednesday.

This article was originally posted at Thinkprogress.org on April 14, 2017. Reprinted with permission.

Zack Ford is the LGBT Editor at ThinkProgress.org. Gay, Atheist, Pianist, Unapologetic “Social Justice Warrior.” Contact him at zford@thinkprogress.org. Follow him on Twitter at @ZackFord.


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Trump revokes executive order, weakens protections for LGBT workers

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An executive order President Trump signed Monday rescinded an executive order President Obama implemented that would have required companies that contract with the federal government to provide documentation about their compliance with various federal laws. Some have argued that this will make it harder to enforce the LGBT protections President Obama implemented for employees of federal contractors—as well as many other protections those workers enjoyed.

Trump rescinded the Fair Pay and Safe Workplaces order, also known as Executive Order 13673, that President Obama issued in 2014. That order required companies wishing to contract with the federal government to show that they’ve complied with various federal laws and other executive orders. Notably, Obama issued that order in tandem with Executive Order 13672, which prohibited contractors from discriminating on the basis of sexual orientation or gender identity.

Executive Order 13673 was enjoined by a federal judge in Texas back in October, but had it been implemented, it would have improved accountability for businesses that contract with the federal government. Enforcement of 13672, the LGBT protections, does not require this order, but would have been stronger with it. Whatever its fate in court may have been, it’s now gone forever.

LGBT people are particularly vulnerable to discrimination, even with 13672 still in place. Obama’s LGBT executive order amended previous presidential orders that also protected the employees of contractors on the basis of race, color, religion, sex, national origin, disability, and age, but all of those other categories are also afforded protection under various federal laws (the Civil Rights Act, the Americans with Disabilities Act, and the Age Discrimination in Employment Act). Sexual orientation and gender identity are the only identity categories without explicit nondiscrimination protections under federal law, and fewer than half the states offer LGBT protections at the state level. That means Obama’s executive order is the only legal force protecting over a million workers.

Camilla Taylor, senior counsel at Lambda Legal, was the first to raise concerns that this change would impact the LGBT community. As she explained to Keen News Service, “It’s sending a message to these companies…that the federal government simply doesn’t care whether or not they violate the law.”

National Center for Lesbian Rights Executive Director Kate Kendell also said in a statement, “President Trump’s quiet take-down yesterday of federal safeguards against employment discrimination for millions of LGBT Americans is yet another example of why our elected officials, advocates, and our community must remain vigilant and continue working together to stop this administration’s regressive and harmful policies.”

When a draft of a “religious freedom” executive order that would have licensed discrimination against LGBT people was circulating, the White House tried to stir up some positive press by promising that it would “leave in place” Obama’s 2014 order protecting LGBT workers.

“President Trump continues to be respectful and supportive of LGBTQ rights,” the statement read. The New York Times’ Jeremy Peters fell over himself to praise the statement for using “stronger language than any Republican president has before in favor of equal legal protections for gay lesbian, bisexual, and transgender people.”

It’s not a surprise, however, that Trump is walking back other executive orders that weaken the LGBT protections. Trump promised to undo all of Obama’s executive orders.

That “religious freedom” executive order hasn’t gone away either. A month after the draft leaked and the White House assured LGBT people it wasn’t signing it at that time, White House Press Secretary Sean Spicer told The Heritage Foundation’s Daily Signal that it was still coming. “I think we’ve discussed executive orders in the past, and for the most part we’re not going to get into discussing what may or may not come until we’re ready to announce it,” he said at the time. “So I’m sure as we move forward we’ll have something.”

This article was originally posted at Thinkprogress.org on March 29, 2017. Reprinted with permission.

Zack Ford is the LGBT Editor at ThinkProgress.org. Gay, Atheist, Pianist, Unapologetic “Social Justice Warrior.” Contact him at zford@thinkprogress.org. Follow him on Twitter at @ZackFord.


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Federal judge concludes transgender worker can sue for sex discrimination

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A federal court in Kentucky is allowing a transgender workplace discrimination suit to proceed, recognizing that mistreatment in regards to gender identity constitutes illegal discrimination on the basis of sex.

Plaintiff Mykel Mickens sued General Electric Appliances (GE) for harassment and disparate treatment in the workplace. He was not permitted to use the men’s restroom, so he had to use a facility much farther away from his work station, and he was then disciplined for how long his breaks were to accommodate that journey. Mickens also had a conflict with an employee, but though GE addressed a complaint one of his white, female colleagues had with that employee, his complaint went unaddressed. He says that when he disclosed that he was transgender to his supervisor, he was singled out and reprimanded for conduct no one else was reprimanded for, and when he reported the harassment, GE said there was nothing it could do.

Federal Chief Judge Joseph McKinley, a Clinton appointee, concluded that there was significant evidence to bring a discrimination case for race and gender discrimination. He agreed there is precedent that punishing an employee for failing to conform to gender stereotypes can qualify as gender discrimination under Title VII. “Significantly,” he wrote, “Plaintiff alleges that GE both permitted continued discrimination and harassment against him and subsequently fired him because he did not conform to the gender stereotype of what someone who was born female [sic] should look and act like.”

McKinley noted that several court cases, including G.G. v. Glouchester County School Board?—?currently before the Supreme Court?—?could impact future trans discrimination suits. In the meantime, however, “what is clear is that the Plaintiff’s complaint sufficiently alleges facts to support discrimination or disparate treatment claims based upon race and gender non-conformity or sex stereotyping.”

GE did not comment directly on the suit but reaffirmed in a statement its commitment to “creating, managing and valuing diversity in our workforce” and “ensuring that our workplace is free from harassment.”

McKinley’s ruling isn’t an automatic victory for Mickens, but it is a sign of progress for those seeking the justice system’s protection for discrimination against transgender people.

Just last week, a transgender man in Louisiana won his discrimination complaint against his employer through arbitration. Tristan Broussard involuntarily resigned from the financial services company he worked for when he was intolerably forced to “act and dress only as a female.” He was awarded more than a year’s salary as well as additional damages for emotional distress.

The Obama administration has extended protections to transgender people in various ways, including advocating for their civil rights in employment discrimination cases. Many advocates worry the Trump administration will roll back these protections and abandon support for these plaintiffs, if not take an antagonistic position against their discrimination claims.

A recent massive survey of transgender people found that 16 percent had lost a job due to being transgender, and 27 percent had either been fired, denied a promotion, or not been hired due to being transgender.

This article was originally posted at Thinkprogress.org on December 13, 2016. Reprinted with permission.

Zack Ford is the LGBT Editor at ThinkProgress.org. Gay, Atheist, Pianist, Unapologetic “Social Justice Warrior.” Contact him at zford@thinkprogress.org. Follow him on Twitter at @ZackFord.


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First-Ever Trans Senate Witness: â€To Be Unemployed Is Very Devastating, Demeaning, And Demoralizing’

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Zack FordThis morning, the Senate Health, Education, Labor & Pensions Committee held a hearing on the Employment Non-Discrimination Act (ENDA), which would extend employment protections based on sexual orientation and gender identity. For the first time in the Senate’s history, a transgender witness testified on behalf of the bill. Kylar Broadus, founder of the Trans People of Color Coalition, discussed his experiences coming out trans, including mistreatment by police, workplace harassment, and employment discrimination:

BROADUS: When I used female restrooms, police would accost me. I would have to strip and then they still told me, “Sir, get out of the bathroom,” when I would use the ladies’ room. It’s just humiliating and dehumanizing to say the least.[…]

Prior also to the physical transition, I was working in the financial industry, which is actually a high-paying industry. But again, when I shifted or transitioned, that’s when all the trouble began. And it’s still emotional to me, because it impacted me emotionally — I suffer from post-traumatic stress as a result of the harassment that I encountered in the workplace from my employer.[…]

To be unemployed is very devastating, also demeaning and demoralizing. And then the recovery time — there is no limit on it. I still have not financially recovered. I’m underemployed. When I do talks, I tell people I’m not employable. I was lucky to be where I am and I’m happy to be where I am, but I’m one of the fortunate people that is employed. There are many more people like me that are not employed as a result of just being who they are — being good workers, but being transgender or transsexual. So I think it’s extremely important that this bill be passed to protect workers like me.

Sen. Tom Harkin (D-IA) expressed pride in the committee for inviting Broadus to speak. Watch his full testimony:

No opponents of the bill attended the hearing, so the panel and questions were mostly positive. One witness, Craig Parshall of the National Religious Broadcasters Association, testified against ENDA, arguing that religious businesses should be able to discriminate against gay and trans employees according to their beliefs. Largely the committee ignored Parshall during the questioning, and when he did express concern, Samuel Bagenstos of the University of Michigan Law School countered the technicalities of his claims, pointing out that ENDA actually has broad religious exemptions.

ENDA has been stalled in Congress for decades. Though Republican control of the House may prevent its advance yet again in 2012, today’s Senate hearing was nonetheless historic. The fact that most of the discussion at today’s hearing was supportive and non-confrontational demonstrates how significantly overdue these employment protections are.

This Blog originally appeared in Think Progress on June 12, 2012. Reprinted with Permission.

About the Author: Zack Ford is an LGBT researcher/blogger for ThinkProgress.org at the Center for American Progress Action Fund. Prior to joining ThinkProgress, Zack blogged for two years at ZackFordBlogs.com with occasional cross-posts at Pam’s House Blend. He also co-hosts a popular LGBT-issues podcast called Queer and Queerer with activist and performance artist Peterson Toscano. Zack has a bachelor’s in Music Education from Ithaca College, where we served as student body president, a Master’s in Higher Education Student Affairs from Iowa State University, and also helped found the Central Pennsylvania LGBT Aging Network. Zack holds a B.M. in music education from Ithaca College and an M.Ed. in higher education (student affairs) from Iowa State University, but he’s originally (and proudly) from rural central Pennsylvania.


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Developments in Workplace Protections for LGBT Employees

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A significant new frontier in the employment discrimination field is finding ways to protect employees who are fired, denied a promotion, or harassed just for being lesbian, gay, bisexual, or transgender (LGBT). Already, 12 states and the District of Columbia prohibit discrimination based on sexual orientation as well as gender identity and expression. (Another eight states have legal protections only for sexual orientation discrimination.) Those laws protect not only lesbian, gay, and bisexual employees, but also transgender employees–those whose internal sense of themselves as male or female (their “gender identity”) and/or the way they express that gender identity through their appearance, clothing, or behavior (their “gender expression”) differs from the anatomical sex they were designated at birth.

As described in Phil Duran’s excellent recent blog post, we may see similar protections enacted in federal law in the near future. LGBT advocacy organizations and others are currently lobbying members of Congress to support a version of the proposed Employment Non-Discrimination Act (ENDA) that would prohibit discrimination based on both sexual orientation and gender identity and expression.

In the meantime, though, courts have been increasingly open to claims brought on behalf of LGBT employees who face discrimination, using what may seem like an unexpected theory: sex discrimination. In 1989 the U.S. Supreme Court held, in a case called Price Waterhouse v. Hopkins, that federal sex discrimination laws protect employees who are discriminated against because of their perceived failure to conform with gender stereotypes–that is, women who are perceived as too masculine, or men who are perceived as too feminine. Price Waterhouse was a case brought by a woman who was denied a promotion at an accounting firm, despite her excellent performance, because her supervisors considered her too “macho.” They suggested that she ought to “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” The Supreme Court held that discrimination based on that kind of gender stereotyping was a form of sex discrimination.

Even though no federal law currently prohibits employment discrimination based on sexual orientation or gender identity and expression, some LGBT employees have been able to successfully use gender-stereotyping arguments to bring sex discrimination claims when they are targeted because of their actual or perceived gender nonconformity. For instance, a sex discrimination claim may be viable when a gay man is harassed because of his co-workers’ perception that he is too feminine or when a lesbian is fired because she is seen as too masculine. Sex discrimination cases brought by lesbian, gay, or bisexual employees can be challenging to win, though, because some courts have expressed concern that the gender-stereotyping theory could be used as a back door means of recognizing what are “really” sexual orientation discrimination claims.  Unfairly, even when an LGBT employee is discriminated against because of gender stereotypes, some courts have denied relief simply because the plaintiff is gay or lesbian or because the discrimination appeared to be additionally motivated by anti-gay animus.

Interestingly, courts have been somewhat more receptive to gender-stereotyping claims brought by transgender employees.  In a groundbreaking decision just issued on September 19, 2008, Schroer v. Billington, a Washington, D.C. federal district court found that a transsexual job applicant had been discriminated against based on “sex.”  She had initially applied for the position–and been offered the job–while presenting as a man, but when she informed the employer of her intention to change her sex to female, the employer withdrew the offer.  The court not only found that gender stereotypes played an unlawful role in her hiring, Ă  la Price Waterhouse, but also held that discrimination because a person changes their sex is “literally” sex discrimination – just as discrimination against those who convert from one religion to another would plainly constitute religious discrimination.  While no other court has yet recognized a sex discrimination claim based on transgender status per se, a number of other decisions have upheld sex discrimination claims brought by transgender employees where the employee can show some evidence that stereotypes played a role in the employee’s negative treatment.

The gender stereotyping theory of sex discrimination can provide valuable protection for lesbian, gay, bisexual, and transgender workers who face discrimination because of their perceived gender nonconformity, although some courts still fixate on the employee’s status as LGBT as a justification for denying an otherwise valid sex discrimination claim. That’s why it’s imperative to pass a fully inclusive version of ENDA: to make it clear to everyone, employers and employees alike, that it’s unlawful to mistreat employees because of traits like sexual orientation or gender identity and expression that have absolutely nothing to do with job performance.

About the Author: Ilona Turner is a staff attorney at the National Center for Lesbian Rights, a national legal organization committed to advancing the civil and human rights of lesbian, gay, bisexual, and transgender people and their families through litigation, public policy advocacy, and public education.  Prior to law school, she was the lobbyist for Equality California, the state’s leading LGBT political organization, where she helped win the passage of groundbreaking legislation that significantly expanded the rights of domestic partners under California law and prohibited discrimination based on gender identity and expression in employment and housing.  She received her J.D. from the University of California, Berkeley.


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Sharing Labor Day with Transgender Workers

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In 2007, hundreds of gay-rights organizations from across the country signed a statement opposing the first gay-rights bill ever approved by a house of Congress. Why? Because the bill, the Employment Non-Discrimination Act (ENDA), prohibited job discrimination based on sexual orientation, but not discrimination based on gender identity/expression. After the House voted to approve ENDA as written, a House committee held a first-ever hearing on the issue of gender-identity/expression discrimination. It is likely that future ENDA proposals will include both sexual orientation and gender identity/expression as protected characteristics. When that happens, Congress will once again be following the lead that employers from coast to coast have already clearly established in affirming the equal employment rights of their transgender employees.

For purposes of this article, “transgender” is an umbrella term describing people who present to the world a gender identity different from the one they were assigned to at birth. The typical transgender person, in their “mind’s eye,” firmly and sincerely sees their gender in a way that does not match their anatomy; this divergence can appear at a very early age and is not usually thought of as a choice any more than is one’s sexual orientation. Transgender people may or may not attempt to change their bodies (“transition”) to align with this gender expression (those who do are often referred to as “transsexuals”). While most transgender people use the pronouns associated with the gender they present, some avoid the use of traditional, gendered pronouns altogether.

A person who comes out as transgender and changes their gender expression often puts him- or herself at significant risk for rejection, discrimination, harassment, or even violence. There are countless transgender people who, having transitioned later in life, have difficulty finding a fulfilling job even though they have advanced degrees and years of relevant experience – somehow, exchanging pants for a skirt magically negates an MBA and professional accomplishment.

The American workplace is slowly but inexorably recognizing that transgender employees have much to offer, and deserve fair and equitable treatment. Increasingly, labor advocates are leading the way by persuading American employers to amend existing non-discrimination and anti-harassment policies to extend their protection to transgender workers. According to the Human Rights Campaign, 153 of the Fortune 500 companies have taken such a step. Clearly, there is progress yet to be made – and labor advocates are likely to be successful.

Beyond basic non-discrimination/anti-harassment policies, forward-thinking employers are also contemplating issues related to employment benefits. Most fundamentally, does an employer’s health plan, assuming there is one, cover services related to gender transition? These usually fall into three basic categories: counseling, hormones, and surgery. The vast majority of plans that cover mental-health treatment don’t draw a line around gender-identity counseling and attempt to exclude it, nor should they. This is important, because counseling is often the initial step that opens the next doors in the transition process. Some employer plans contain gender-related provisions that specifically exclude surgery, while other go further and also exclude hormones as well. More and more, however, health plans (and related plans, such as short-term disability policies) are eliminating these restrictions as employers realize that covering gender-related care significantly benefits affected employees while adding relatively little to their insurance premium. In June 2008, the American Medical Association issued a statement calling exclusions of gender-related care a form of discrimination. Workplace advocates will continue to press for change in this area, which, in turn, could positively affect the future conversation about universal health care and its scope.

Additional complexities may arise regarding a transgender employee’s partner, and their access to dependent health benefits. For example, if a married male employee transitions to female and adopts a female name, but does not divorce, does the spouse remain the employee’s wife, and therefore the employee’s dependent? Or does the spouse, in effect, become a domestic partner? (Hint: pick door number one.) This matters, because if the dependent is seen as a spouse, the benefits are a tax-free fringe benefit. On the other hand, if the dependent is characterized as a domestic partner, the benefits incur tax liability for the employee and deductions by the employer. On one level, this distinction would be immaterial if not for the tax difference, and here, labor and employers are speaking out together in favor of federal legislation that would treat spousal and partner benefits equally for tax purposes.

Taking back Labor Day means, among other things, sharing Labor Day with transgender workers, and committing oneself to learning about the issues they face, educating others, and advocating for workplace fairness for all.

About the Author: Phil Duran is the Staff Attorney at OutFront Minnesota, the state’s leading advocacy, direct service, and public policy agency for gay, lesbian, bisexual, and transgender (GLBT) Minnesotans and their allies. His work at OutFront Minnesota focuses on legal information, referral, and education; state legislative research and analysis; state administrative agency and local government public policy; school-related issues; and direct representation in selected public-assistance and human rights matters. Additionally, Duran serves on the board of the Minnesota Lavender Bar Association, which raises GLBT issues within the legal profession in Minnesota. He also is a past member of the executive council of the Minnesota State Bar Association (MSBA), and served on the steering committee of the MSBA’s Diversity in the Legal Profession Task Force. He currently serves on the MSBA Diversity Committee, MSBA Task Force on the Rights of Unmarried Couples, and Minnesota Supreme Court’s Gender Fairness Implementation Committee. Phil is a graduate of the University of Minnesota Law School.


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