In 2014, the Department of Justice announced that it had officially expanded its working definition of sex discrimination under Title VII to apply to discrimination based on gender identity as well. While such a move does not have the force of law for transgender discrimination in the workplace, it was a step toward normalizing such protections and perhaps providing impetus to others to enact similar rules. Thus, in 2017, when the current administration’s Attorney General explicitly rescinded such protections, it created and continues to create confusion and alarm for transgender employees around the nation.
Advances Taken Away
Even in 2014, despite the gains made, activists declared that the movement did not go far enough. As of this writing, only 18 states have any kind of employment protections for transgender discrimination in the workplace at the state level. That has been the case since before the Holder DOJ’s memo. The Employment Non-Discrimination Act (ENDA) has been on legislative radar since the mid-1990s, but has repeatedly failed to pass in both houses of Congress.
While some might question the alarm being sounded over the rescinding of a non-binding memo, such a memo matters even if it lacks the force of law, especially in light of the state of LGBTQ+ rights at the time of its issuance. The DOJ under Eric Holder made several strides toward legal equality for the LGBTQ+ community, especially for transgender people. Guidance was issued, for example, declaring that Title IX, which governs gender discrimination in federally funded activities like school sports, applied to transgender individuals, which allowed many to participate in pursuits while presenting as their true gender. Having the protection of Title VII behind them helped transgender employees feel safe, helping many of them to be more productive as well. Rescission of this guidance may only create fear and discrimination.
What Does This Mean For You?
If you are a transgender person working in South Carolina, the move by federal authorities is perhaps doubly frustrating. As of this writing, South Carolina has no state law in place to protect against transgender discrimination in the workplace. The South Carolina Human Affairs Law covers sex discrimination, but no precedent currently exists which holds that sex discrimination covers gender identity, as it does in other states. There are locales in the state that have passed their own citywide ordinances against discrimination of this nature, but only Myrtle Beach and Richland County’s ordinances apply to both public and private employers.
It is, however, important to note that while the DOJ has rescinded their protections and advocacy efforts on behalf of transgender people, the Equal Employment Opportunity Commission (EEOC) has not. The agency has vowed to continue representing transgender employees who believe they were discriminated against on the basis of sexual and/or gender identity expression. Indeed, in September 2017, the DOJ and EEOC actually wound up arguing opposite sides of a case on homophobia in the workplace. This is an extremely unusual state of affairs, but given the prevailing trend, one can assume that it may not be the last standoff between agencies that normally work together.
Enlist An Employment Discrimination Attorney
If you are transgender person and you believe you have been discriminated against, you are still entitled to be heard. Attorney A. Christopher Potts has significant experience with employment discrimination cases. He and his employment law firm are happy to help you work out a path for your future. Contact our Charleston, SC office today to set up an appointment.