The New York Times has published an important article on the actions that various federal agencies are considering in response to North Carolina’s hastily enacted new law. The new law repeals Charlotte’s LGBT anti-discrimination ordinance and mandates that schools and public agency employers require transgender students and employees to use restrooms that match the biological sex noted on their birth certificates rather than the gender identity with which they identify.
Readers may be perplexed as to what makes North Carolina so different from other states that do not explicitly protect LGBT people from discrimination, a point raised by a state official quoted in the article.
The article explains that it is:
correct that federal anti-discrimination laws do not explicitly mention gay and transgender people: the Obama administration has repeatedly called on Congress to pass a law banning discrimination against them in employment decisions. On several occasions, however, the administration has also said that gay, lesbian and transgender people are already covered by laws banning sex discrimination.
Say what? This may sound confusing: if there is no explicit mention in the laws, how can the administration find that LGBT people are protected under such laws? The answer is that a number of agencies have concluded that prohibitions on discrimination based on sex inherently cover discrimination based on gender identity and sexual orientation. This interpretation has been adopted by a number of courts, in addition to the federal agencies.
The result is that LGBT people do, in fact, have the ability today to secure assistance from federal agencies in a range of areas, from employment to education to health care.
Let’s focus on workplace discrimination.
The new North Carolina law added the term “biological” to “sex” in its anti-discrimination law to deny protection of the state’s sex discrimination law to transgender persons. Too late. As the EEOC makes clear on its website, a contrary state law is never a defense to the charge that a federal law has been violated.
And under federal law, courts and the EEOC have ruled that discrimination against transgender people is sex discrimination. The most explicit statement came from the Eleventh Circuit in the case of Glenn v. Brumby in 2011. A number of courts, both before and after, have agreed with that position. (Check out the most recent decision on 3/18/16, Fabian v. Hosp. of Cent. Conn.)
In April 2012, the Equal Employment Opportunity Commission (EEOC), in Macy v. DOJ, ruled that discrimination based on gender identity is always discrimination based on sex. Although the EEOC’s ruling was announced in the context of federal employment, its legal position applies to private employers with 15 or more employees and to all state and local employers. That opened the door for transgender people in every state to bring claims of employment discrimination to the EEOC and many have done so.
All this adds up to the following: According to the EEOC, all transgender applicants and employees in North Carolina are protected from discrimination and can file a claim with the EEOC if they experience discrimination. In fact, every transgender applicant or employee in every state can file such a claim.
What about bathrooms? North Carolina’s law is unique in that it affirmatively requires discrimination against transgender employees of state public agencies and transgender students in public educational settings by affirmatively denying them access to an appropriate restroom. Most other states simply lack explicit protections for LGBT persons.
But again, this new law cannot overturn existing interpretations of federal law. In July 2015, the EEOC ruled in Lusardi v. Dept of Army that transgender employees must be provided access to the restroom consistent with their gender identity. Again, the agency’s legal position applied to private employers and state and local employers. Shortly afterwards, a private employer, Deluxe Financial, settled a case the EEOC had brought challenging the employer’s denial of appropriate restroom access to a transgender employee. Other private employers have settled with the EEOC as well in transgender discrimination cases.
Outside the context of employment, other federal agencies have taken positions similar to the EEOC. For example, in October 2015, the Department of Justice (DOJ) filed a brief in the case of GG v. Gloucester stating that federal law prohibited a school that received federal funds from denying a transgender student access to the restroom consistent with his gender identity.
Federal law is also evolving for claims of discrimination against lesbian, gay, and bisexual persons. The EEOC ruled, in Baldwin v. DOT, and has argued in court, that Title VII’s sex discrimination prohibition protects lesbian, gay, bisexual and heterosexual applicants and employees from discrimination based on their sexual orientation. Here too, the tide is turning in the courts – but only more recently. (A few great cases to read are Isaacs and Videckis, as well as Christensen — a case in which a district court judge appeals to the Second Circuit to affirmatively change its precedent.)
Although the new North Carolina law does not affirmatively require discrimination against LGB people, its repeal of the Charlotte ordinance removes the guaranteed and clear protection for LGBT people that a new law offers. In the meantime, though, every LGB person in Charlotte, other North Carolina cities, or any city in the United States can at least come to an EEOC office and file a charge if they experience discrimination.
A lot has changed for LGBT people over the past decade. But we need to keep on moving – onwards and upwards.