A recent Obama administration announcement stated that President Obama has appointed the first openly transgender White House staff member. The former policy adviser at the National Center for Transgender Equality, Raffi Freedman-Gurspan, was appointed to serve as an outreach and recruitment director in the administration'sOffice of Presidential Personnel. This appointment's historical significance is twofold: not only is Freedman-Gurspan transgender, but she is also Hispanic.

This first-of-its-kind appointment is not the first step the president has taken to show his administration's support of the LGBT community. Specifically, the president has signed executive orders banning federal contractors from discriminating against employees due to gender identity or sexual orientation, publicly condemned therapies that tried to "fix" transgender and gay youth, and announced the making of a gender-neutral bathroom in the Eisenhower Executive Office Building.

Transgender Statistics

Unfortunately, the rest of the nation has yet to follow the White House's lead when it comes to LGBT equality. In fact, transgender workers are at a higher risk for unemployment; part of the reason is because there is no federal law that provides explicit legal protections against discrimination based on gender identity or expression. Indeed, less than 20 states and the District of Columbia offer such protections.

In fact, a report highlighted by theHuman Rights Campaign details the disadvantages the LGBT community faces. The unemployment rate of transgender workers is twice of the general population and more than four in 10 transgender workers are underemployed. Moreover, transgender people are four times more likely than the general population to have a household income of less than $10,000.00.

EEOC Ruling

In July of this year, however, the Equal Employment Opportunity Commission (EEOC) ruled in a 3-2 vote that Title VII of the 1964 Civil Rights Act prohibits sexual orientation discrimination at the workplace because it is a type of "sex" discrimination. This recent decision goes against the decisions of several circuit courts holding that "sexual orientation" does not fall within sex discrimination and that Congress intentionally left out "sexual orientation" as an employment protection when it created Title VII.

The EEOC disagrees. In its17-page-long opinion, the commission argued that prior circuit court decisions are "dated" and have been undercut by later opinions within the same circuits recognizing gender stereotyping as sex discrimination. Sex discrimination, the commission noted, "cannot be understood or defined without reference to sex".

The current administration has taken steps to ensure that workplace discrimination is not the reason qualified people are kept out of the workforce. However, discrimination based on sexual orientation or gender identity continues to keep many qualified workers unemployed or underemployed. If you or someone you know has been the victim of sex discrimination in the workplace, contact a knowledgeable and experienced employment discrimination attorney to understand your rights under state and federal law.
Legal Practice
Employment - Policies
  1. New York