A recent discrimination case in South Dakota demonstrates how a civil rights act passed nearly fifty years ago is being used to protect gay and transgender employees throughout the country in the absence of other federal legislation. In the South Dakota case, the woman’s former employer was ordered to pay her $50,000.
The 29-year-old woman was fired in 2010 after she told her employers at a market in Rapid City that she would be undergoing the physical transition from a man to a woman. After she lost her job, she reached out to Lambda Legal, which works to protect the legal rights of lesbian, bisexual, gay, and transgender (LGBT) people. Along with the Equal Employment Opportunity Commission (EEOC), they filed a complaint against the market for violation of Title VII of the 1964 Civil Rights Act.
This is not the first time that Title VII, which prohibits discrimination in the workplace, has been used on behalf of a transgender employee. In an April 2012 case, the EEOC ruled that discrimination by an employer on the basis of gender identity was a violation of Title VII. However, LGBT rights advocates point out that while it is encouraging that Title VII is successfully being used to fight discrimination of gay and transgender employees, it is no replacement for a specific federal law prohibiting it.
The proposed legislation that advocates are working to help pass is called the Employment Non-Discrimination Act (ENDA). It would provide federal protection to LGBT employees. The bill has been introduced in both houses of the current Congress and approved by the Senate Health, Education, Labor and Pensions Committee.
Currently, the employment rights of transgender people are subject to the vicissitudes of city, county and state lawmakers. According to the American Civil Liberties Union (ACLU), 16 states and Washington, D.C., as well as 150 cities and counties, currently have laws that prohibit discrimination based on gender identity. Twenty-one states and Washington, D.C. prohibit discrimination based on sexual orientation.
Since the repeal of the Defense of Marriage Act (DOMA) earlier this year, many LGBT activists are turning their energy to fighting for ENDA. Whether this legislation makes it through the current Congress is another matter. Until it is passed, the battles will continue to be fought on the state and local levels using whatever legal tools are available.
TIME, “Transgender Community Steps Closer to Employment Equality” Maya Rhodan, Sep. 16, 2013