1. Gender Identity and Expression Issues on the Higher Education Campus
Presented by
Michael J. DePonte, Esq.
Jackson Lewis, P.C.
Texas Higher Education Humans Resources Association Winter Conference

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4. WHAT IS SEXUAL STEROTYPING
Whether or not individuals identify as male or female, gay, lesbian, bisexual, heterosexual or transgender, many people transcend traditional gender roles. For example:
A female with short hair is called "sir" in public;
A boyish-looking lesbian receives curious glances or angry stares in the ladies room;
A gay teenager is reprimanded for "not acting like a man."
All of these individuals face bias based on preconceived notions of gender – what it means to look and act like a man or a woman.

5. Gender Identity & How It Differs From Gender Expression
Gender identity is a person’s innate, internal sense of his or her gender.
Gender expression is the way in which a person presents his or her gender to the outside world.
Transsexual is a person who changes or seeks to change their physical characteristics to a gender different from their biological sex.

6. Sexual Orientation vs. Transgender
Sexual Orientation is an individual's physical and/or emotional attraction to the same or opposite gender.
Transgender is an umbrella term referring to a person whose gender identity presentation falls outside of stereotypical gender norms and may seek to change their physical characteristics through hormones, gender reassignment surgery or other actions.

7. Transitioning
Transitioning is the process through which a person modifies their physical characteristic/manner of expression in order to bring their internal gender identity in harmony with their external gender expression, such as the taking of hormones, gender reassignment surgery, covering certain body parts, changing speech patterns, hair, wardrobe, makeup or other changes.

8. What Other Expressions Denote Sex Stereotypes?
She was told she should “show her softer side” more often.
At the meeting, she “took it like a man.”
He needed to “be his own man.”
He’s just being a “sissy.”
“Man up.”
He/She throws like a girl.
Comparisons:
Strong men vs. domineering women.
Assertive men vs. aggressive women.

9. What Other Expressions Denote Sex Stereotypes?
She was told she should “show her softer side” more often.
At the meeting, she “took it like a man.”
He needed to “be his own man.”
He’s just being a “sissy.”
“Man up.”
He/She throws like a girl.
Comparisons:
Strong men vs. domineering women.
Assertive men vs. aggressive women.

10. Overview Of Federal Gender Discrimination Laws (Cont.)
There is no federal law that protects against discrimination based on gender identity or expression.
As currently drafted, the Employment Non- Discrimination Act (“ENDA”) prohibits sexual orientation discrimination and discrimination based on gender identity or expression.
November 7, 2013 – Passed by Senate
Noverber 12, Referred to the Committee on Education and the Workforce, and in addition to the Committees on House Administration, Oversight and Government Reform, and the Judiciary

11. Overview Of Federal Gender Discrimination Laws (Cont.)
Title VII of the Civil Rights Act of 1964 prohibits discrimination “because of sex.”
Most state and local anti-discrimination or human rights laws include a similar prohibition on sex discrimination.

12. Overview Of Federal Gender Discrimination Laws (Cont.)
The Americans with Disabilities Act (“ADA”) excludes “transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders” from coverage.

13. Overview Of Federal Gender Discrimination Laws (Cont.)
Initial view from federal courts was that discrimination against transgender plaintiffs is not prohibited discrimination “because of sex.”
See, e.g., Ulane v. Eastern Airlines, Inc., (7th Cir. 1984) (holding MTF transsexual pilot not protected from discrimination under Title VII).

14. Price Waterhouse v. Hopkins (1989)
U.S. Supreme Court decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) called these rulings into question.
Held that a woman who failed to conform to her employer’s gender stereotypes regarding how women should look and act was protected from discrimination by Title VII.
Hopkins, a female accountant, was advised by certain partners in the firm that she could improve her partnership chances if she would “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.”

15. Price Waterhouse v. Hopkins (1989) (Cont.)
Hopkins sued under Title VII for sex discrimination after she resigned following the firm’s denial of partnership.
Justice Brennan, writing for the plurality, held that “in the specific context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender.”

16. Post-Price Waterhouse:
State and local laws prohibiting discrimination based on disability may provide a significant source of protection for transgender employees.
The term “disability” in anti-discrimination laws refer to people with a wide range of serious health conditions and also is meant to protect individuals from discrimination based on stereotypes and ignorance about medical conditions and disability. 16

17. Post-Oncale Gender Stereotyping & “Feminine Men” Nichols v
Post-Oncale Gender Stereotyping & “Feminine Men” Nichols v. Azteca Restaurant Enterprises (9th Cir. 2001)
Antonio Sanchez, a male restaurant employee, was subjected to a relentless campaign of insults, name- calling, and vulgarities, such as being referred to as “she” and “her;” being mocked for walking and carrying his serving tray “like a woman;” and being taunted as a “f___king female whore.” 17

18. Post-Oncale Gender Stereotyping & “Feminine Men” (Cont. ) Nichols v
Post-Oncale Gender Stereotyping & “Feminine Men” (Cont.) Nichols v. Azteca Restaurant Enterprises (9th Cir. 2001)
The Ninth Circuit held, “the systematic abuse directed at Sanchez reflected a belief that Sanchez did not act as a man should act… We conclude that this verbal abuse was closely linked to gender.”
The Ninth Circuit found the employer liable under Title VII and the state of Washington’s anti-discrimination statute:
“...Price Waterhouse applies with equal force to a man who is discriminated against for acting too feminine.” 18

19. Pregnancy Based Stereotypes Back v
Pregnancy Based Stereotypes Back v. Hastings on Hudson Union Free School District (2d Cir. 2004)
Elena Back was a psychologist at an elementary school. She was placed on a three-year tenure-track when she was hired.
During her first two years of employment, she received excellent performance reviews from her two female supervisors and was repeatedly told she would receive tenure.
As Back’s tenure drew closer, however, she took a three-month maternity leave. 19

20. Pregnancy Based Stereotypes (Cont. ) Back v
Pregnancy Based Stereotypes (Cont.) Back v. Hastings on Hudson Union Free School District (2d Cir. 2004)
After her return from maternity leave, Back’s supervisors began criticizing her performance and making comments about her devotion to the job:
She was asked how she was “planning on spacing her offspring.”
She was told she would not “show the same level of commitment [she] had shown because [she] had little ones at home” and that the job was “not for a mother.” 20

21. Pregnancy Based Stereotypes (Cont. ) Back v
Pregnancy Based Stereotypes (Cont.) Back v. Hastings on Hudson Union Free School District (2d Cir. 2004)
Back sued after she was denied tenure and her employment was subsequently terminated.
Citing Price Waterhouse v. Hopkins, the court held that employment decisions based on gender stereotypes constitute gender discrimination:
“Notions that mothers are insufficiently devoted to work, and that work and motherhood are incompatible, are properly considered to be themselves, gender-based.” 21

22. The Reasonable Woman Standard EEOC v
The Reasonable Woman Standard EEOC v. National Education Association (9th Cir. 2005)
Three female employees filed EEOC charges against National Education Association-Alaska (NEA) alleging the organization created a sex-based hostile work environment and constructively discharged one of them.
Female employees alleged a male supervisor with little or no provocation, shouted and screamed at them, used foul language, invaded their personal space and used threatening physical gestures. 22

23. The Reasonable Woman Standard (Cont. ) EEOC v
The Reasonable Woman Standard (Cont.) EEOC v. National Education Association (9th Cir. 2005)
The Ninth Circuit Court of Appeals held that a reasonable juror could conclude that the supervisor’s conduct, which was directed primarily at women, was “because of sex,” within the meaning of the statute.
The real question is whether the behavior “affected women more adversely than it affected men.”
The questions can be analyzed in two ways: i) is the effect of the behavior qualitatively different; and ii) is the amount of the behavior quantitatively different. 23

24. The Reasonable Woman Standard (Cont. ) EEOC v
The Reasonable Woman Standard (Cont.) EEOC v. National Education Association (9th Cir. 2005)
Under the reasonable woman standard devised in an earlier case, Ellison v. Brady, 924 f. 2d 872 (9th Cir ), women found the behavior is more intimidating than men did and therefore, the conduct affects women differently.
The Director’s intent is irrelevant--what matters is the effect of the behavior, both subjectively and objectively. 24

25. Transgender v. Sexual Orientation Enriquez v
Transgender v. Sexual Orientation Enriquez v. West Jersey Health Systems (N.J. 2001)
Enriquez began her external transformation from male to female. She shaved her beard, waxed her eyebrows, pierced her ears, and began growing breasts. A few months later, Enriquez manicured and polished her nails, grew long hair and wore a ponytail.
Later that year, Enriquez was diagnosed with gender dysphoria, a gender identity disorder listed in the DSM-IV. 25

26. Transgender v. Sexual Orientation (Cont. ) Enriquez v
Transgender v. Sexual Orientation (Cont.) Enriquez v. West Jersey Health Systems (N.J. 2001)
Enriquez underwent surgery. Three executives confronted her about their discomfort over her transformation. One told her to “stop all this and go back to your previous appearance!”
The executives terminated her contract and refused to enter into a new contract, stating “No one is going to sign this contract unless you stop this business that you’re doing.”
The Court held that there was gender discrimination. 26

27. Sexual Reassignment Surgery Goins v. West Group (Minn. 2000)
Must one undergo sexual reassignment surgery to be protected under state law?
Goins, a transgender employee, claims West Group discriminated against her and harassed her on the basis of her sexual orientation by designating restrooms on the basis of biological gender. 27

28. Sexual Reassignment Surgery (Cont.) Goins v. West Group (Minn. 2000)
Goins was born biologically male.
Since 1994, Goins has taken female hormones and presented herself to the public as a female since
In October 1995, Goins legally changed her name. Goins referred to herself as transgender or trans- identified. 28

29. Sexual Reassignment Surgery (Cont.) Goins v. West Group (Minn. 2000)
In 1997, Goins used an employee restroom designated for women. Two biological females complained to a supervisor.
The HR Director deemed the two female employees’ complaint to be a complaint of a “hostile work environment” and decided to enforce the policy of restroom usage according to biological gender. 29

30. Sexual Reassignment Surgery (Cont.) Goins v. West Group (Minn. 2000)
The HR Director also decided to allow Goins the use of a single-occupancy restroom on a different floor or one in another building.
Goins objected, proposing instead the complaining employees be educated regarding transgender individuals. Goins continued to use the restroom.
In 1998, Goins resigned, claiming undue stress and hostility. 30

31. Sexual Reassignment Surgery (Cont.) Goins v. West Group (Minn. 2000)
The court held that an employee born male who changed her legal name to that of a female and took female hormones to identify herself as a female, even though she elected not to undergo sexual reassignment surgery, was protected under that state’s anti-discrimination law protecting persons whose self-image or identity is not traditionally associated with his/her biological sex. 31

32. Macy v. Holder (EEOC Apr. 20, 2012)
Job applicant Mia Macy applied for a job at the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATFE”).
When Macy applied for a job, she presented as male.
Shortly thereafter, Macy informed ATFE that she was transitioning from male to female.
ATFE informed Macy that another applicant had been hired because that applicant was farther along in the background check process. 32

33. Macy v. Holder (Cont.) (EEOC Apr. 20, 2012)
Macy filed a complaint against ATFE with the EEOC alleging that the reasons proffered for not hiring her were pretextual and that the true reason was because of her “sex, gender identity (transgender woman) and on the basis of sex stereotyping.”
The EEOC reasoned that Macy could establish a viable sex discrimination claim on the ground that:
ATFE believed that biological men should present as men and wear male clothing; or,
ATFE was willing to hire a man, but not a woman.
Either way, the EEOC concluded, transgender discrimination is discrimination “based on...sex” and violates Title VII. 33

34. Other Significant Cases
Smith v. Salem, Ohio, 378 F.3d 566 (6th Cir. 2004):
Fireman Jimmie Smith, transsexual diagnosed with GID questioned by supervisors, told “not masculine enough,” and subjected to psychological exams by department.
Sixth Circuit held “[b]y definition, transsexuals are individuals who fail to conform to [gender] stereotypes …” thus a claim of discrimination based on Plaintiff’s identification as a transsexual was actionable. 34

35. Other Significant Cases
Schroer v Billington, 424 F.Supp.2d 203 (D.C. 2006)
DC District Court found that Schroer had been discriminated against because of sex in violation of Title VII. Schroer, who was undergoing the process to transition from male to female, interviewed as a male and was offered position.
After hiring, but before starting work, she told decision-maker she would use her female name and dress in traditional female clothing. Next day, the decision-maker withdrew the job offer, stating that Schroer would not be a "good fit" for the Library of Congress. 35

36. Other Significant Cases
Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011): Glenn claimed her constitutional rights were violated because the employer terminated her employment due to her medical condition, known as Gender Identity Disorder. The testimony provided direct evidence that the employer acted on the basis of the employee's gender non-conformity.
Case centered on the Fourteenth Amendment's equal protection clause, not Title VII, but the Eleventh Circuit's decision could have greater implications. Court stated that discrimination against individuals because they don't conform to socially prescribed gender roles is barred by Title VII. 36

37. State Anti-Discrimination Laws Protecting Transgender Employees
Seventeen states (California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont and Washington) and the District of Columbia include gender identity and/or gender expression in their employment non-discrimination statutes.
Courts and human rights agencies in Connecticut, Colorado, Hawaii, Massachusetts, New Hampshire and New York have ruled transgender employees are protected by their state anti-discrimination laws. 37

38. Local Anti-Discrimination Laws
Ordinances prohibiting workplace discrimination on the basis of gender identity or expression are even more prevalent at the local level:
Austin, Baltimore, Boston, Cincinnati, Cleveland, Charleston, Dallas, Detroit, Miami Beach, Louisville, NYC, Pittsburgh, New Orleans, and Philadelphia. 38

39. Discrimination & Harassment Of Transgender Employees
Examples of discriminatory and harassing conduct regarding transgender employees:
Refusal to hire in a position requiring customer interaction;
Preventing appropriate restroom usage;
Repeated failure to address an employee by his/her proper name and pronoun (Mr./Ms., his/her);
Invasive inquiries about medical history or genitalia;
Allowing teasing or intimidating behavior. 39

40. How To Stay In Compliance?
A thorough review of your specific state and local laws. This area of law is changing rapidly. 40

41. What you need to do now…
Educate HR personnel on how to handle gender identity and expression issues
Review your policies like grooming and attire standards
Make employment decisions transparently and document the job-related reasons for employment decisions
Train employees to set aside traditional or stereotypical notions of gender
Promote an inclusive workplace culture
Be prepared for expected changes in the law 41

42. Gender Transition Plan
When someone plans to present consistently as the opposite sex:
The HR professional (with assistance from in house counsel) immediately schedules a meeting with the employee in transition to begin to develop a transition plan and provide information about the Company’s guidelines, expectations and resources.
Michelle: Feel free to refer to Joy for some of the revisions necessary to the current policy. 42

43. Gender Transition Plan (Cont.)
The transition plan should address the following issues:
Timeline
Dress code
Company resources
Identification changes
Security clearance issues
Facilities usage
Appropriate norms of conduct
Sensitivity training
Complaint procedures
Plan Modifications
Michelle: Feel free to refer to Joy for some of the revisions necessary to the current policy. 43

44. When Someone Transitions On The Job…
Everyone transitions when a transgender person comes out in the workplace. Transition is not just a practical process, but it is inherently an emotional and psychological process for everyone. 44

45. Questions? 45

46. THANK YOU!