[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
AN EXAMINATION OF DISCRIMINATION AGAINST TRANSGENDER AMERICANS IN THE
WORKPLACE
=======================================================================
HEARING
before the
SUBCOMMITTEE ON HEALTH,
EMPLOYMENT, LABOR AND PENSIONS
COMMITTEE ON
EDUCATION AND LABOR
U.S. House of Representatives
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
__________
HEARING HELD IN WASHINGTON, DC, JUNE 26, 2008
__________
Serial No. 110-99
__________
Printed for the use of the Committee on Education and Labor
Available on the Internet:
http://www.gpoaccess.gov/congress/house/education/index.html
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43-027 PDF WASHINGTON : 2008
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COMMITTEE ON EDUCATION AND LABOR
GEORGE MILLER, California, Chairman
Dale E. Kildee, Michigan, Vice Howard P. ``Buck'' McKeon,
Chairman California,
Donald M. Payne, New Jersey Senior Republican Member
Robert E. Andrews, New Jersey Thomas E. Petri, Wisconsin
Robert C. ``Bobby'' Scott, Virginia Peter Hoekstra, Michigan
Lynn C. Woolsey, California Michael N. Castle, Delaware
Ruben Hinojosa, Texas Mark E. Souder, Indiana
Carolyn McCarthy, New York Vernon J. Ehlers, Michigan
John F. Tierney, Massachusetts Judy Biggert, Illinois
Dennis J. Kucinich, Ohio Todd Russell Platts, Pennsylvania
David Wu, Oregon Ric Keller, Florida
Rush D. Holt, New Jersey Joe Wilson, South Carolina
Susan A. Davis, California John Kline, Minnesota
Danny K. Davis, Illinois Cathy McMorris Rodgers, Washington
Raul M. Grijalva, Arizona Kenny Marchant, Texas
Timothy H. Bishop, New York Tom Price, Georgia
Linda T. Sanchez, California Luis G. Fortuno, Puerto Rico
John P. Sarbanes, Maryland Charles W. Boustany, Jr.,
Joe Sestak, Pennsylvania Louisiana
David Loebsack, Iowa Virginia Foxx, North Carolina
Mazie Hirono, Hawaii John R. ``Randy'' Kuhl, Jr., New
Jason Altmire, Pennsylvania York
John A. Yarmuth, Kentucky Rob Bishop, Utah
Phil Hare, Illinois David Davis, Tennessee
Yvette D. Clarke, New York Timothy Walberg, Michigan
Joe Courtney, Connecticut [Vacancy]
Carol Shea-Porter, New Hampshire
Mark Zuckerman, Staff Director
Sally Stroup, Republican Staff Director
SUBCOMMITTEE ON HEALTH, EMPLOYMENT, LABOR AND PENSIONS
ROBERT E. ANDREWS, New Jersey, Chairman
George Miller, California John Kline, Minnesota,
Dale E. Kildee, Michigan Ranking Minority Member
Carolyn McCarthy, New York Howard P. ``Buck'' McKeon,
John F. Tierney, Massachusetts California
David Wu, Oregon Kenny Marchant, Texas
Rush D. Holt, New Jersey Charles W. Boustany, Jr.,
Linda T. Sanchez, California Louisiana
Joe Sestak, Pennsylvania David Davis, Tennessee
David Loebsack, Iowa Peter Hoekstra, Michigan
Phil Hare, Illinois Cathy McMorris Rodgers, Washington
Yvette D. Clarke, New York Tom Price, Georgia
Joe Courtney, Connecticut Virginia Foxx, North Carolina
Timothy Walberg, Michigan
C O N T E N T S
----------
Page
Hearing held on June 26, 2008.................................... 1
Statement of Members:
Andrews, Hon. Robert E., Chairman, Subcommittee on Health,
Employment, Labor and Pensions............................. 1
Prepared statement of.................................... 3
Additional submissions for the record:
Statement of Kathleen Marvel, senior vice president
and chief diversity officer, the Chubb Corp........ 48
Statement of Levi Strauss & Co....................... 50
Statement of Alynna E. Lunaris....................... 51
``Through the Gender Labyrinth,'' article dated
November 19, 2000, from the Los Angeles Times...... 53
Baldwin, Hon. Tammy, a Representative in Congress from the
State of Wisconsin......................................... 5
Prepared statement of.................................... 7
Frank, Hon. Barney, a Representative in Congress from the
State of Massachusetts..................................... 8
Holt, Hon. Rush D., a Representative in Congress from the
State of New Jersey, submissions for the record:
Statement of Pride at Work, AFL-CIO...................... 75
Statement of the National Gay and Lesbian Task Force
Action Fund............................................ 76
Statement of Rebecca E. Fox, national director, National
Coalition for LGBT Health.............................. 80
Statement of the Transgender Law Center.................. 81
Kline, Hon. John, Senior Republican Member, Subcommittee on
Health, Employment, Labor and Pensions..................... 3
Prepared statement of.................................... 4
Sanchez, Hon. Linda T., a Representative in Congress from the
State of California, submission for the record:
Statement of the Gay, Lesbian and Straight Education
Network................................................ 82
Statement of Witnesses:
Hendrix, William H. III, Ph.D., global leader, Gays, Lesbians
and Allies at Dow.......................................... 27
Prepared statement of.................................... 29
Lavy, Glen, senior counsel, the Alliance Defense Fund........ 33
Prepared statement of.................................... 34
Miller, JC, partner, Thompson Hine LLP....................... 23
Prepared statement of.................................... 25
Minter, Shannon Price, Esq., legal director, National Center
for Lesbian Rights......................................... 43
Prepared statement of.................................... 45
Sanchez, Diego Miguel, director of public relations and
external affairs, AIDS Action Committee.................... 21
Prepared statement of.................................... 22
Schroer, COL Diane J., U.S. Army, retired.................... 12
Prepared statement of.................................... 15
Taraboletti, Sabrina Marcus, aeronautics engineer............ 37
Prepared statement of.................................... 40
AN EXAMINATION OF DISCRIMINATION AGAINST TRANSGENDER AMERICANS
IN THE WORKPLACE
----------
Thursday, June 26, 2008
U.S. House of Representatives
Subcommittee on Health, Employment, Labor and Pensions
Committee on Education and Labor
Washington, DC
----------
The subcommittee met, pursuant to call, at 11:08 a.m., in
room 2175, Rayburn House Office Building, Hon. Robert Andrews
[chairman of the subcommittee] presiding.
Present: Representatives Andrews, Miller, Kildee, McCarthy,
Wu, Holt, Sanchez, Hare, Clarke, Kline, McKeon, Boustany,
Price, Foxx, and Walberg.
Also Present: Representative Payne.
Staff Present: Aaron Albright, Press Secretary; Tylease
Alli, Hearing Clerk; Tico Almeida, Labor Policy Advisor; Jody
Calemine, Labor Policy Deputy Director; Carlos Fenwick, Policy
Advisor, Subcommittee on Health, Employment, Labor and
Pensions; David Hartzler, Systems Administrator; Brian Kennedy,
General Counsel; Thomas Kiley, Communications Director; Ann-
Frances Lambert, Administrative Assistant to Director of
Education Policy; Danielle Lee, Press/Outreach Assistant; Sara
Lonardo, Junior Legislative Associate, Labor; Alex Nock, Deputy
Staff Director; Joe Novotny, Chief Clerk; Megan O'Reilly, Labor
Policy Advisor; Rachel Racusen, Deputy Communications Director;
Meredith Regine, Staff Assistant; Margaret Young, Staff
Assistant, Education; Mark Zuckerman, Staff Director; Robert
Borden, Minority General Counsel; Cameron Coursen, Minority
Assistant Communications Director; Ed Gilroy, Minority Director
of Workforce Policy; Rob Gregg, Minority Senior Legislative
Assistant; Alexa Marrero, Minority Communications Director;
Molly McLaughlin Salmi, Minority Deputy Director of Workforce
Policy; Ken Serafin, Minority Professional Staff Member; and
Hannah Snoke, Minority Legislative Assistant.
Chairman Andrews. Ladies and gentlemen, we are going to
proceed. We do appreciate the patience of our guests. The full
committee had to complete action on education legislation that
we began yesterday and concluded this morning, so we thank you
for your patience.
Good morning, ladies and gentlemen, and welcome to the
subcommittee. In all likelihood, someone is going to go apply
for a job today and the employer is not going to tell him or
her this, but the employer is going to say, you know, I am not
comfortable with the way that person looks, with the way he or
she presents him or herself, so I am not going to hire the
person.
In all likelihood, someone today is being considered for a
promotion or an opportunity in his or her job. And behind
closed doors an employer may well say, you know, this person
makes us uncomfortable because of the way he or she looks or he
or she presents him or herself. Under the present state of the
law, if that is the reason given to deny someone a job, to fire
them from a job they already have, or to deny them a promotion
or move up, under Federal law it is legal, it is permissible to
do that.
I will confess to you a bias from the outset that to me
this makes no sense whatsoever. I think if someone is the best
code writer of the software company they should get the job. I
think if someone is the best auto mechanic they should get the
job. I think if they are the best bank teller they should get
the job. The question of someone's orientation, someone's
presentation should be absolutely irrelevant to the
consideration of whether they get the job or the promotion. The
purpose of this hearing is to explore the law in this area,
which I would start from the premise as saying it does permit
these kind of denials to take place and whether that should
change or not. I think it should, I think it should.
We are going to hear this morning from a number of
witnesses who will provide a varying number of perspectives on
this question. One of the elemental principles in American law
we hope is merit. That whether or not someone is hired, whether
or not someone is promoted, whether or not someone has economic
opportunities is a function of how well they do their job or
how well they would do their job and not a function of what I
would call irrelevant prejudicial criteria. I feel strongly
that someone's presentation is an irrelevant criteria. I think
it has nothing to do with how well someone writes code or
conducts bank transactions or fixes someone's car.
And I aspire to the day when the law will protect every
person in that position, and that he or she is able to go to
work, do as well as he or she can and be judged on performance
at work and not on prejudice of any other decision made.
We are going to hear from a variety of witnesses this
morning who will address those concerns. And we look forward to
vigorous questioning from the members of the subcommittee as we
move forward. I would also note for the record that there is
context for this hearing. And that was this committee and the
House's consideration of the Employment Non-Discrimination Act
in the fall of 2007. It needs to be said, it needs to be
reminded, that the bill that passed the House of
Representatives did not include protection for transgender
people. I believe it should have.
And the purpose of this hearing is for those of us who
believe that to make our case and for those who disagree to
make theirs, and for people to draw an intelligent and rational
conclusion from that debate. I am pleased in our work on this
subcommittee to have the cooperation and colleague status with
my friend from Minnesota, Mr. Kline, who is the ranking member
of the subcommittee for the minority side. It is a pleasure
working with him because he and I try to address all these
issues on the basis of substance and merit to be fair in the
way we approach these issues, and I am pleased that that
tradition continues for today's hearing, and I welcome him into
the hearing.
[The statement of Mr. Andrews follows:]
Prepared Statement of Hon. Robert E. Andrews, Chairman, Subcommittee on
Health, Employment, Labor and Pensions
Good morning and welcome to the Health, Employment, Labor, and
Pensions Subcommittee Hearing entitled ``An Examination of
Discrimination Against Transgender Americans in the Workplace.''
The purpose of today's hearing is to educate Congress and the
public about the discrimination transgender American face particularly
in the workplace absent a comprehensive federal law to protect them.
Workplace discrimination against a particular group of people is
morally unacceptable and conflicts with the principles we hold sacred
in our society. Furthermore, workplace discrimination, unchecked, harms
our economy both domestically and globally.
When an employer is permitted to deny someone a job based on their
identity without consequence, makes increases on our unemployment rate
and diminishes our competitive edge in the global economy, making us
less competitive in the global economy.
Testifying before us today are some of the most distinguished and
brightest members of our society, who were denied employment or fired
because they are transgender. These individuals along with the roughly
700,000 to 3 million transgender individuals living in America today
run the risk of being fired, demoted or not even hired because of their
gender identity.
There are 12 states, including the District of Columbia with laws
in place to protect transgender individuals from workplace
discrimination, as well as, many reputable companies with
antidiscrimination policies. Despite these protections, studies and
surveys reveal high rates of unemployment and low-income status among
transgender Americans.
Today's hearing is simply a first step in identifying the problem
workplace discrimination against transgender Americans.
I thank the witnesses for coming forward to the subcommittee today
and look forward to hearing your testimony.
______
Mr. Kline. Thank you, Mr. Chairman, for those kind remarks.
And I want to thank you, Mr. Chairman, for your flexibility in
scheduling this hearing. There was some issue about what day we
can do it, and I appreciate your flexibility to allow it on a
day we could have more member participation. I wanted to thank
our witnesses, certainly our colleagues in the first panel, and
the witnesses in the second panel. I am looking forward to the
testimony. I think it is a fair statement to say that all of us
are committed to the principle that no employee should be
subject to discrimination.
But before we consider and enact any new Federal mandate,
we must first determine a few things. Is a new law necessary?
Is there evidence that this type of discrimination is
occurring? Are current laws and employer policies unable to
protect employees? We have numerous Federal and State laws and
employer policies already on the books that help prevent
discriminatory practices. Do we need yet another Federal law?
That is part of what this hearing is about today. I look
forward to the testimony of a really distinguished panel of
witnesses, both panels of witnesses. And I yield back the
balance of my time with asking unanimous consent that my entire
statement be included in the record.
Chairman Andrews. Without objection.
[The statement of Mr. Kline follows:]
Prepared Statement of Hon. John Kline, Senior Republican Member,
Subcommittee on Health, Employment, Labor and Pensions
Good morning. I'd like to begin by thanking the witnesses for
taking time out of their schedules to be here. I would also like to
express my appreciation to Chairman Andrews for his flexibility in
scheduling this hearing.
The issue we are here to examine--gender identity and workplace
discrimination--follows on the Majority's efforts last fall to include
protections for transgender individuals in the employment non-
discrimination legislation. The purpose of this general hearing is to
allow for thorough and thoughtful consideration of this issue, and any
future proposals that might affect the American people.
That said, I am somewhat puzzled as to why the Committee did not
hold this hearing last year, before the Majority rushed to consider
legislation on this issue.
Last September, this Subcommittee held the only hearing on this
topic. It was a hearing on a prior bill, the Employment Non-
Discrimination Act, which broadly aimed to prohibit organizations from
discriminating in their employment practices against individuals on the
basis of their actual or perceived sexual orientation and gender
identity. During that hearing, we heard testimony from experts who
cautioned that some of the provisions in that bill could be confusing,
difficult to comply with, and potentially fraught with litigation.
Complex questions were raised about how that bill would impact
employers; whether it would preserve religious freedom and encroach on
employee privacy; and how it would comply with existing anti-
discrimination statutes.
The bill's sponsors scrambled to address these questions and
concerns. Ultimately, they decided to split the original ENDA bill,
separating the protections based on sexual orientation and gender
identity and attempting to address some of the technical concerns. But
only the new bill involving sexual orientation discrimination was
rushed to the House Floor for a vote. The flawed bill still raised many
of the same serious concerns that were previously identified. After the
bill passed the House in November 2007, it stalled in the Senate, where
it still awaits action.
I can only speculate as to why no legislative action was taken on
the other bill that sought protections based on gender identity.
Despite the good intentions of those who supported these proposals,
there still appeared to be too much uncertainty and too many unanswered
questions. This explains why we are here today, examining an issue that
perhaps should have been reviewed in greater detail before rushing to
legislate.
We are all committed to the principle that no employee should be
subject to discrimination. Before we consider and enact any new federal
mandates, however, we must first determine whether a new law is
necessary. Is there evidence that this type of discrimination is
occurring? Are current laws and employer policies unable to protect
employees? We have numerous federal and state laws and employer
policies already on the books that help prevent discriminatory
practices. Do we need yet another federal law? It is my view that the
role of this Committee, and Congress, is to build upon this framework
only when needed, and to avoid legislating for its own sake.
I look forward to hearing the testimony to be offered by our
witnesses about the practical impact, benefits, and problems associated
with this issue. I'm pleased that we will hear multiple perspectives on
this topic, and hope this testimony will help ensure that any future
well-intentioned efforts do not result in harmful, unintended
consequences.
I yield back the balance of my time.
______
Chairman Andrews. Without objection, the opening statement
of any member of the committee who wishes to include may as
well. The chairman of the full committee, Mr. Miller, is here.
I would ask if he would care to make an opening statement.
Mr. Miller. No.
Chairman Andrews. Is Mr. McKeon here also? I would extend
the same courtesy to Mr. McKeon should he be interested?
Mr. McKeon. No.
Chairman Andrews. Okay. We are going to proceed with the
first panel being two of our esteemed colleagues in the House;
Representative Barney Frank, who is the chairman of the
Financial Services Committee, an active member on so many
issues. He has devoted countless hours to the housing crisis
facing this country today. I know he is involved in very
important negotiations with the Senate as we speak on how to
address that crisis. I want to thank him for two things this
morning; one is his leadership in so many areas of American
law, and his good spirited approach to these issues.
In the middle of our days we sometimes need to laugh with
each other and not at each other. And Barney Frank has the
unique ability to help us see the humorous insights at some
very stressful times. And then the second is obviously for his
leadership on civil rights issues in general and these issues
in particular. Many of us believe that Mr. Frank is an
inspiration for his work, and we are honored that he is with us
here today.
Representative Tammy Baldwin has a rare skill in the
Congress that she is a great listener in a place where people
love to talk. And she is a good talker too, a very good talker.
But I very much enjoy the fact that I have seen her interact in
situations that are sometimes stressful and divisive and she
always listens with respect and dignity to the other side of
any question. She has developed an outstanding legislative
record in areas of consumer protection, environmental affairs,
civil rights, education, national defense policy. And it is our
honor to have her with us today as well.
So I would ask if our two colleagues would begin with
opening statements. I will tell you one thing this subcommittee
has done in sort of an unofficial practice, is that because we
want to get to our lay witnesses as quickly as we can, we open
the panel to any questions from our colleagues, but we
frankly--I won't say we discourage questions. I will say it. We
discourage questions to our colleagues unless someone has
something they really want to ask so we can get to the lay
witnesses as quickly as we can. So Representative Frank and
Representative Baldwin, thank you very much for your
attendance, and you may begin.
STATEMENT OF HON. TAMMY BALDWIN, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF WISCONSIN
Ms. Baldwin. Thank you, Chairman Andrews and Ranking Member
Kline, for inviting the two of us, and inviting me to testify
at this very historic hearing. Many of my colleagues have asked
me about the phrase ``gender identity'' and why employment
protection is based on gender identity and expression ought to
be included in any employment discrimination legislation this
Congress takes up. And I will do my best to answer any
lingering questions and clarify what drives many in the LGBT
community to demand an inclusive approach to eliminating
discrimination in the workplace, one that does not leave behind
the smallest and most vulnerable part of our community. As you
may know, gender identity is a person's internal sense of his
or her gender. In the vast majority of the population, an
individual's gender identity and his or her birth sex match.
But for a small minority of people, gender identity and
anatomical sex conflict.
A common way that many transgender people describe this
feeling is to say something to the effect of being trapped in
the wrong body. Gender identity and sexual orientation are not
the same, and transgender people may be heterosexual, lesbian,
gay, or bisexual. There are thousands of transgender Americans
who lead incredibly successful stable lives. They are dedicated
parents; they contribute immeasurably to their communities and
to their country. I personally know transgender people who work
in fields as diverse as defense contracting, broadcasting,
community organizing and the legal profession and I could go
on. They have transitioned successfully, many with the full
support of their employers.
Despite these successes, because an individual was born one
sex and presents oneself to the world as another, or in a way
that other people may think is inconsistent with how a man or a
woman should present themselves, he or she may face many forms
of discrimination.
Hate crimes against transgender Americans are tragically
common. Transgender people also face discrimination in the
mundane tasks of the every day; trying to find housing,
applying for credit or even seeing a doctor. And of course, the
focus of today's hearing, in trying to provide for themselves
and their families.
As some of you know, I practiced law in a small general
practice firm before I was elected to the Wisconsin assembly.
On occasion, I represented clients who were fired from jobs in
violation of Wisconsin's landmark 1982 nondiscrimination law
that added sexual orientation to our State's anti-
discrimination statutes. During that time, I met a transgender
woman who has left a lasting impression upon me. This woman had
been fired from a management position at a large local employer
when she announced to her boss that she intended to transition.
And because Wisconsin's law gave her no legal recourse, she
faced an impossible situation and ended up moving to a
different State. I remember a time in my own life when I
thought I had to choose between living my own life with truth
and integrity about who I am as a lesbian or pursuing the
career of my dreams in public service. Among the things that
made me change my mind was Wisconsin's nondiscrimination law
that had passed only four years before I first ran for local
office as an out lesbian. The importance of nondiscrimination
laws cannot be overstated. Substantively they provide real
remedies and a chance to seek justice.
Symbolically they say to America, judge your fellow citizen
by their integrity, character and talents, not their sexual
orientation or gender identity or race or religion for that
matter. Symbolically, these laws also say that an irrational
fear, an irrational hate have no place in our work places.
Today, 39 percent of Americans live in areas explicitly banning
discrimination based on gender identity and expression. And at
least 300 major U.S. businesses now ban discrimination based on
gender identity and expression. Corporate America and the
American people are way ahead of the Congress in acknowledging
the basic truth we hold to be self-evident that all of us are
created equal, and the laws of the land should reflect that
equality. It is high time that America declared discrimination
based on gender identity and expression to be unlawful.
Mr. Chairman, I wholeheartedly support your committee's
efforts to do just that. For the record, I support, like you,
an inclusive bill which ensures that hard working Americans
cannot be denied job opportunities, fired or otherwise
discriminated against just because of their sexual orientation,
gender identity or gender expression. All of us who have had
the honor of working in this institution know that one of the
greatest things about America is that it is not only a Nation,
it is also an idea. And our American dream promises that no
matter where we start, no matter who we are, that if we work
hard, we will have the opportunity to advance. This committee
can help fulfill that promise. Thank you, Mr. Chairman.
Chairman Andrews. Thank you very much Congresswoman Baldwin
for the incisive legislative record you built and the dignity
with which you conduct yourself. Thank you.
[The statement of Ms. Baldwin follows:]
Prepared Statement of Hon. Tammy Baldwin, a Representative in Congress
From the State of Wisconsin
Thank you Chairman Andrews, Ranking Member Kline, and members of
the Committee for allowing me the opportunity to testify today at this
historic hearing.
Many of my colleagues have asked about the phrase ``gender
identity'' and why employment protections based on gender identity and
expression ought to be included in any employment discrimination
legislation Congress takes up. I'll do my best to answer any lingering
questions and clarify what drives many in the LGBT community to demand
an inclusive approach to eliminating discrimination in the workplace--
one that does not leave the smallest and most vulnerable part of our
community behind.
As you may know, gender identity is a person's internal sense of
his or her gender. In the vast majority of the population, an
individual's gender identity and his or her birth sex ``match.'' But
for a small minority of people, gender identity and anatomical sex
conflict. A common way for many transgender people to describe this
feeling is to say something to the effect of being ``trapped in the
wrong body.'' Gender identity and sexual orientation are not the same
and transgender people may be heterosexual, lesbian, gay or bisexual.
There are thousands of transgender Americans who lead incredibly
successful, stable lives, are dedicated parents, contribute
immeasurably to their communities, their country. I personally know
transgender people who work in fields as diverse as defense
contracting, broadcasting, community organizing, the legal profession--
I could go on. They have transitioned successfully, many with the full
support of their employers.
Despite these successes, because an individual was born one sex and
presents themselves to the world as another--or in a way that other
people may think is inconsistent with how a man or a woman should
present themselves--he or she can face many forms of discrimination.
Hate crimes against transgender Americans are tragically common.
Transgender people also face discrimination in the mundane tasks of the
everyday--trying to find housing, apply for credit, or even see a
doctor * * * and, of course, in the focus of today's hearing: trying to
provide for themselves and their families.
Some of you know that I practiced law for a few years in a small
general practice firm before I was elected to the Wisconsin Assembly.
On occasion, I represented clients who were fired in violation of
Wisconsin's 1982 non-discrimination law that added sexual orientation
to our state's anti-discrimination statutes. During that time, I met a
transgender woman who left a lasting impression, though she was never a
client. This woman had been fired from a management position at a large
local employer when she announced to her boss that she intended to
transition. And because Wisconsin law gave her no legal recourse, she
faced an impossible situation--and ended up moving to a different
state.
I remember a time in my own life, when I thought I had to choose
between living my life with truth and integrity about who I am, as a
lesbian, or pursuing the career of my dreams in public service. Among
the things that made me change my mind was Wisconsin's Non-
Discrimination law that passed four years before I first ran for local
office * * * as an out lesbian.
The importance of nondiscrimination laws cannot be overstated.
Substantively, they provide real remedies and a chance to seek justice.
Symbolically, they say to America, judge your fellow citizens by their
integrity, character, and talents, not their sexual orientation, or
gender identity, or their race or religion, for that matter.
Symbolically, these laws also say that irrational hate or fear have no
place in our work place.
Today, 39% of Americans live in areas explicitly banning
discrimination based on gender identity and expression and at least 300
major U.S. businesses now ban discrimination based on gender identity
and expression. Corporate America and the American people are way ahead
of the Congress in acknowledging the basic truth we hold to be self-
evident * * * that all of us are created equal * * * and the laws of
the land should reflect that equality. It is high time that America
declare discrimination based on gender identity and expression
unlawful.
Mr. Chairman, I wholeheartedly support your Committee's efforts to
do just this. For the record, I support an inclusive bill which ensures
that hard-working Americans cannot be denied job opportunities, fired
or otherwise be discriminated against just because of their sexual
orientation, gender identity, and gender expression.
All of us who have had the honor of working in this institution
know that one of the greatest things about America is that it is both a
nation and an idea. Our American Dream promises that no matter where we
start, no matter who we are, if we work hard, we will have the
opportunity to advance. This Committee can help fulfill that promise.
Thank you.
______
Chairman Andrews. Mr. Chairman.
STATEMENT OF HON. BARNEY FRANK, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF MASSACHUSETTS
Mr. Frank. Mr. Chairman, to you and to the chairman of the
full committee my deepest appreciation. Having become a
chairman of a full committee, I understand the problems of
trying to fit everything in. And there are a lot of members who
would have put this hearing, let us be honest, pretty low on
the totem pole. And in fact, it wouldn't have been hard to find
an excuse not to have this hearing. And give us the opportunity
to meet our responsibility, confront something some people
might pretend not to be here.
My colleague has given you a very good explanation of this
issue, although I have to say, to get focused, when she said
that people express this as having a feeling they are trapped
in the wrong body, I was talking to the chairman of the full
committee, the phrase having something trapped in the wrong
body is how we often feel when our legislation goes to the
Senate. We have a lot of legislation trapped in the wrong body.
But to get to this issue, and my colleague has laid it out,
first of all, we should be very clear, the overwhelming
majority of legal interpretation is that gender identity is not
covered when you ban sexual orientation. It simply isn't
covered. And frankly, nobody who thinks it should be covered
uses that argument. I mean, if you think it should be covered,
if there is any uncertainty--let us put it this way. Whenever
members of this body object to something on the grounds that it
is redundant, I am skeptical. We are a profession, many of us
lawyers, where redundancy is part of our code here in Congress.
I mean, using a few extra words is rarely something that we
object to.
So when people say they don't want it because it is
redundant, they mean I don't want it, but I don't really want
to tell you why I don't want it. But in this case, there is no
argument for redundancy. Any lawyer will tell you. People are
excluded.
The next argument is, well, it can be disruptive. I mean,
these are for people who say there should be equality. And I
appreciate the gentleman from Minnesota saying a principle I
think we all agree with; that people should not be denied a
chance to earn a living because of some essential element of
their personality that is really relevant directly to them and
causes no harm to anyone else. So the argument though is
sometimes it can be disruptive. I have been--I filed a gay
rights bill in 1972, unlike my colleague, who was both younger
and had the chance being from Wisconsin, and she said because
of that law she didn't have to face this choice of living
without--but I did and I made the wrong choice for a while, and
behaved irresponsibly because of it. I was ultimately able to
get freed from it.
And let me just say at this point what I hope will be
relevant as people get to know people in the transgender
community and as we make progress here, I recognized when I
first got involved in politics, if I was honest about who I was
I would have made some people nervous, but they got used to me.
I just want to reassure people here, you are going to get used
to them. I understand this is new and we are human beings and
new and different sometimes make us nervous. But you know,
look, Tammy Baldwin and I, early on in our careers, given the
nature of prejudice, frankly in this society, we were seen as
exceptions. People were nice to us, but we were exceptions, we
were the good ones.
Well, we didn't want to be exceptions. And now I think we
are not exceptions, we are examples. We are examples of the
benefits all around when you overcome prejudice. Let us give
the country a chance to expand that experience to people of
transgender. And as for the disruption, I filed the gay rights
bill in 1972. I have filed and worked for any discrimination
measures; sexual orientation, race, gender, ethnicity,
disability.
And I will address for those who say, well, you got to do
it all at once, I have never done it all at once. As a matter
of fact, for a long time, I have worked for legislation which
protected other people, not me. I finally got old enough to
benefit from age discrimination in legislation. But every bill
that I have ever been involved with where we tried to ban
discrimination has met the same argument; I got nothing against
those people, they are okay, but it will be disruptive. I have
heard that with regard to sexual orientation, with affirmative
action.
Certainly I mean, not with race, aside from affirmative
action, with ethnicity, with gender, with disability. People
always say it is going to be disruptive and it never is. I wish
somebody who has got some time would go back and look at every
anti-discrimination measure we have ever enacted and see the
similarity of the arguments, and nobody goes back and says,
well, where was the disruption? There almost never is
disruption. As a matter of fact, the sad truth about any
discrimination legislation, as people know, there are some
people here who practiced it, it tends to be under enforced
because the people who want to discriminate can get
sophisticated, and the burden of proof is always on the one who
is charging discrimination.
So the argument that it can be disruptive just doesn't
work. The argument that it is already done, it is not true. So
as to need, you are going to hear from a witness who applied
for and was granted a job by the Library of Congress. We are
not talking about some benighted institution out in some remote
part of the country. The Library of Congress, our intellectual
and cultural center, a person was hired. And when that
individual told the hiring agent, well, I am going through a
gender change, she lost her job. And she lost her job, and I am
deeply offended by this because the hiring people said, oh, do
you know what, you are going to working on terrorism, Members
of Congress won't respect you.
Well, I very much resent having that prejudice imputed to
me and to you. And I hope that the Library of Congress will
come to its senses and rescind this terribly bigger decision.
But let us be clear. You asked if there is a need if this can
help a qualified military veteran here in the Library of
Congress. Of course, there is a need in other parts of the
country. And let me just close personally. And I understand,
let us again be honest, I realized--look, when I first realized
I was gay, it made me uncomfortable 50 years ago. It is not
something--sexuality and difference, they come together, they
get to the core of our human frailty, but we do get used to
each other.
And in virtually every case where we have confronted a
prejudice it has worked out fine and we now boast about the
lack of it. We are simply saying this is a new category to some
people. But everything else that applies in every other case
applies here. And for people for whom you think, well, gee, it
makes you uneasy, well, how do you think it makes the people
who are themselves transgender feel? Does anybody think anybody
would volunteer to engage--to feel the kind of tension that my
colleagues have so well described, to feel trapped in the wrong
body? And these are people who have courageously tried to deal
with that so that they can maximize their ability to live the
same lives we all want to live.
Why would we deny them protection? I understand--as I said,
people got used to it. But that is all they are asking. Nobody
is asking anybody to have dinner with people that make you
uneasy or take them to the movies. Let them work, let them
work. People are asking for the right to have a job and be
judged on that job by the way in which they do the job. Why
should that be considered disruptive? And the fact that they
are this or that or the other, it is no more relevant than it
used to be about their race or their gender or their sexual
orientation.
And as my colleague pointed out, American corporations have
benefited from this. No one is being given a license to
misbehave, no one is being given a license here to be bizarre,
although this institution has a tolerance for the bizarre that
maybe other institutions would well emulate. But that is all we
are asking.
So just to summarize, you have heard from my colleague who
we are talking about. Not a huge number of people. But they are
people who, first of all, had a deep anguish and have
courageously dealt with that. And they are only asking to be
constructive citizens and to be allowed their personal space.
But to be judged in their impersonal work, their economic work,
solely by their merits. They are not now protected by the law.
The argument that it would be disruptive is simply not true.
It hasn't been disruptive in major corporations or in those
States that have done it. These are people who are grappling
with something that many here, let us be honest, are probably
grateful that you don't have to grapple with. Can't you help
them? That is all we are talking about. We are talking about
responding as a compassionate society knowing that fighting
discrimination legally has worked well for this country, to
extend it to a group that may be new, that is certainly new,
may be disturbing to a few people. But there is no more reason
to deny them that than there was to anybody else. Thank you.
Chairman Andrews. Thank you. And we appreciate the
compliments to the committee. But the way we operate here is we
don't measure our duty by the quantity of those who are
aggrieved. We measure it by the depth of the grievance that
those who have been discriminated against suffer. So we are not
concerned about how many people have been discriminated
against, we are concerned about the gravity of the
discrimination. The way that I would like to proceed is if--do
any of our members have questions on the majority side for
either of our colleagues? That is very good.
Mr. Frank. Can I ask, as the chairman of a full committee,
can I ask you two questions? How do you get them to not make
opening statements and not ask questions?
Chairman Andrews. Ask Mr. Miller. He is good at that. Any
on the minority side for our colleagues? I would propose that
we have a number of floor votes, we will go cast our votes, we
will immediately return and proceed with the next panel and we
will stand in adjournment until then.
[Recess.]
Chairman Andrews. Ladies and gentlemen, the subcommittee
will reconvene. We thank you for your patience. Hopefully there
will be a hiatus in floor votes so we can get to our business.
I am going to begin by reading the biographies of our
witnesses who are here for our second panel. And we will then
proceed with statements from the panelists and questions from
our colleagues that are present here.
COL Diane Schroer served for 25 years in the Army Special
Forces as a key strategist on homeland security. After entering
the Army, Colonel Schroer completed Ranger and Airborne School
and eventually rose to position senior assessment director. The
Colonel is an honors graduate of the U.S. Army Special Forces
Qualification Course and holds an undergraduate degree from
Northern Illinois University.
Colonel, welcome, and thank you for your service to our
country.
Diego Sanchez is the director of Public Relations and
External Affairs for the AIDS Action Committee. Mr. Sanchez has
26 years of experience in public and media relations--we could
use you--marketing and diversity management. Hispanic Business
magazine named him among the top 100 most powerful Latinos/
Latinas in corporate America. Mr. Sanchez is a Rhodes Scholar
candidate and an UMass Boston emerging leader senior fellow. He
holds a BA from the University of Georgia.
Welcome, Mr. Sanchez. Glad you are with us.
JC Miller is a partner at the law firm of Thompson Hine LLP
focusing on labor and employment law as well as business
litigation. Prior to entering private practice, Ms. Miller was
an assistant attorney general for the State of Florida, chief
of litigation for the Florida Department of Labor and
Employment Security, and special counsel to the Florida
Department of Corrections. She holds a BA from Smith College
and a JD from the University Of Notre Dame Law School.
Welcome, Ms. Miller. Glad that you are with us.
Bill Hendrix has worked for the Dow Chemical Company since
1989 and has been active in the company's Gay, Lesbian and
Allies at Dow, which is GLAD, the acronym, network almost since
its inception in 2000. Mr. Hendrix has made presentations on
LGBT topics at the Out and Equal Conference and for local
employee resource groups. He also serves on the Board of the
Indiana Youth Group, a local LGBT youth advocacy agency. Mr.
Hendrix holds a Ph.D. from Iowa State University.
Welcome. It is Dr. Hendrix, I guess it should be then,
right? Welcome.
Glen Lavy is senior counsel and senior vice president for
marriage litigation for the Alliance Defense Fund. Before
joining the ADF, Mr. Lavy practiced litigation matters such as
securities fraud, antitrust and tax law. He also worked for two
years as senior law clerk to the Honorable John L. Coffey,
United States Court of Appeals for the Seventh Circuit. Mr.
Lavy is a graduate of the Harvard Law School where he served as
executive editor of the Harvard Journal of Law and Public
Policy.
Welcome, Mr. Lavy. We are glad that you are with us.
Sabrina Marcus Taraboletti worked for 23 years as a space
shuttle aeronautics engineer with a NASA contractor at the
Kennedy Space Center. Ms. Taraboletti currently works for the
Florida Department of Transportation. She earned her
undergraduate degree from SUNY Maritime College, earning a
Coast Guard license to be a Merchant Marine Officer.
Welcome, Ms. Taraboletti. Glad you are with us.
And finally, last but not least, Shannon Minter is legal
director for the National Center for Lesbian Rights, one of the
Nation's leading advocacy organizations for lesbian, gay,
bisexual, and transgender people. He also serves on the
American Bar Association Commission on Sexual Orientation and
Gender Identity and holds a J.D. from the finest law school in
America, the Cornell Law School, and an honorary degree from
the City University of the New York School of Law.
I say that because I am hopelessly biased but also
inscrutably accurate.
In front of you, you will see a panel of lights. This is so
that we can keep people's testimony under some time constraints
and get to questions from the members of the committee.
Your written statements will be accepted, without
objection, to the record in their entirety.
As far as your oral statements are concerned, we ask that
you limit them to five minutes. When the green light goes on,
you should begin speaking. When the yellow light appears, that
means you have one minute, and we would ask you to summarize
your oral remarks. And when the red light goes on we would ask
you to stop, so we can move on to the next person.
And with that, we will begin, Colonel, with you. And we
welcome you to the subcommittee.
STATEMENT OF COL DIANE J. SCHROER, U.S. ARMY, RETIRED
Colonel Schroer. Mr. Chairman and committee members, thank
you for the opportunity to appear and testify here today.
My name is Diane Schroer, COL, U.S. Army, retired, and I am
a transgender woman. I grew up in Chicago as David Schroer with
two older brothers in the most normal of loving families. I
entered the U.S. Army through ROTC as a second lieutenant
immediately following graduation from Northern Illinois
University in 1978. I completed Ranger and Airborne School, and
in 1987, I was an honor graduate of the U.S. Army Special
Forces Qualification Course.
I served 16 years in Special Forces, including tours as a
detachment commander, company commander and battalion
commander, accumulating 450 parachute jumps. I participated in
combat operations in Panama and Haiti, as well as operational
missions in the Middle East, Central America, Africa, and
Europe. Additionally, I initiated humanitarian demining
operations in most of southern Africa.
At U.S. Special Operations Command, I orchestrated the
Program Objective Memorandum, or POM, reviewing 5,000 program
lines, covering all aspects of Special Operations for four
years. I knew every unit, piece of equipment, operation,
exercise, development program and construction project, where
every dollar was supposed to be spent, and where it actually
was spent.
Following 9/11, I was selected to organize and direct a
classified 120-person interagency organization responsible for
all Department of Defense operations against the country's most
significant terrorist threats and all long-term planning for
the global war on terrorism.
After almost two years of successful operations, with 25
years in the Army, 12 of those in command positions, I retired
in January 2004. Cumulatively, the U.S. Government had spent 30
years and several million dollars educating me and perfecting
my experience in the fields of insurgency and counterterrorism.
I currently run a small independent consulting company that
has done work for the Department of Homeland Security, the U.S.
Coast Guard, the National Guard, and the Federal Bureau of
Investigation, focused on homeland security and maritime high-
risk counterterrorism operations. I possess a Top Secret
Special Compartmented Information capable security clearance,
which was updated without issue in July 2007.
I am here today, because in fall 2004, I applied and
interviewed for the position of specialist in terrorism and
international crime with the Congressional Research Service of
the Library of Congress. In December, I was told I had been
selected for the position, and after some rapid salary
negotiations, I accepted the job.
At the time I applied for the position, I was in the
process of my gender transition from Dave to Diane, although
still legally David, and therefore applied as David. When I was
offered the job at CRS in December 2004, I felt it would cause
less confusion all around if I simply started work as Diane. So
I invited my future supervisor to lunch so I could tell her
about my plans and help her ensure everything went smoothly.
I met my future supervisor at her office, and she
introduced me to several new colleagues. At lunch, she spoke at
length on my new responsibilities involving preparing,
publishing, and informing Members about the critical issues
surrounding terrorism and homeland security.
Midway through lunch, I mentioned a personal item that I
wished to discuss. I asked her if she knew what it meant to be
transgender. I explained that I had a female gender identity
and was going to be living full time as a female. My intent was
to start when I commenced work at CRS.
I knew that whether I was David or Diane, I would provide a
wealth of background knowledge and superb research support to
the Congress. I had truly felt that my future supervisor at CRS
would feel the same way. Yet as we parted company following
lunch, she mentioned that I had given her a lot to think about.
The following day, she called and said that, after a long
and sleepless night, she decided I was not a good fit for the
Library. In 24 hours, I had gone from a welcome addition to the
staff to someone who was not a good fit. As we used to say,
hero to zero in 24 hours.
I enlisted the assistance of the ACLU. And in June of 2005,
they filed suit in Federal Circuit Court against the Library of
Congress. In its legal papers, the Library has claimed it
didn't hire me because I would lose my colleagues in the
Special Operations community. Ironically, these are precisely
the people who have been second only to my family as my
staunchest supporters. The Library has claimed that it could
not hire me because it was concerned I would lose my security
clearance, yet it was recently renewed without issue. The
Library has claimed that it could not hire me because I would
have no credibility with Members, yet I testify in front of
this committee here today.
In summary, I hope every day for the call to come from the
Library saying, ``we have made a tremendous mistake.'' I am
ready and able to serve this country once again. And I look
forward to doing so.
Thank you.
[The statement of Colonel Schroer follows:]
------
Chairman Andrews. Colonel, thank you very much for your
time.
Mr. Sanchez, welcome to the committee.
STATEMENT OF DIEGO MIGUEL SANCHEZ, DIRECTOR OF PUBLIC RELATIONS
AND EXTERNAL AFFAIRS, AIDS ACTION COMMITTEE
Mr. Sanchez. Mr. Chairman and members of the subcommittee,
thank you for adding my voice to those you hear today.
My name is Diego Miguel Sanchez, and I am a 51-year-old
transsexual Latino man. I was born female and transitioned to
male. I grew up as an Army brat and ended up in Augusta,
Georgia, where my 80-year-old mother lives today. When I was
five, I told my parents I was born wrong, that I felt like a
boy inside.
My mother showed me a magazine with Christine Jorgensen on
the cover. She has told me that she didn't know if there were
other people like me, people who were born a girl and felt like
a boy, but that this woman was born a boy, grew up to be a man,
and became a woman later in life. And she said that by the time
that I grew up, that it would be okay. From that time, my
parents gently, privately, dually socialized me. My mother
taught me to do the things that girls needed to do. And my
father raised me to know the lessons that men would have to
know.
It was difficult and painful. I have to be honest. I had as
many tutus as Tonka trucks. But I could survive the former
because of the latter. My parents always gave me hope, and my
positive outlook on life is the fruit of that loving labor.
Mom was mostly right. It is usually pretty okay for me
these days. I am grateful to be gainfully employed by the AIDS
Action Committee of Massachusetts and AIDS Action Council here
in Washington as the director of Public Relations. My degree is
in journalism from the University of Georgia. I have a major in
public relations. I am the only male Georgia letterman that I
know of who earned that letter on the women's tennis team.
I was one of those straight-A perfect-attendance types. Dad
always told me, ``the harder you work, the luckier you get.'' I
worked hard, and I am lucky.
Because sex reassignment procedures weren't as developed in
1980 as they are now, I focused on work, hoping to change
things later. I spent nearly 20 award-winning years climbing
the corporate ladder in global companies, names that you would
know, like Coca-Cola, Burson-Marsteller, Holiday Inn Worldwide,
ITT Sheraton, and Starwood Hotels.
I am a loyal worker, a passionate leader, and a man who had
to wait for fear of being fired to be who I was always destined
to be, Diego Miguel Sanchez, an honorable man.
My career entailed navigating the newly defined glass
ceiling. It entailed probing limited opportunities for female
professionals of color. And it entailed trying to find a way to
be a man while I looked like a woman in the workplace. It was
heartbreaking and painful. But it was necessary, and it was the
only way that I knew to save money to have sex reassignment,
which I did later from my own savings.
I struggled to find self-respect in a world that I never
imagined would allow, let alone accept or embrace, someone like
me, someone who seemingly was born wrong. I was an honest
person who could be honest about everything, except myself. I
negotiated with my corporate colleagues for things that would
moderately affirm me. Things that would mean nothing to anyone
else meant so much to me. It meant everything to get a tie
instead of a scarf as the company talisman. I asked people to
use my first initial as my first name until I could change this
medically and legally.
I have lived long enough to achieve these gains because I
was able to do the one thing that military families are taught
when there is a challenge: I sucked it up. But when my head
hits the pillow every night, I close my eyes and think about my
friends who are transgender whose lives aren't so easy. I miss
my friend Alexander John Goodrum, who took his own life. I feel
guilty about my brother, my friend, Ethan St. Pierre, who lost
his job just because he began his transition from female to
male. I still recognize that he lost his job because he was
brave and honest.
And because I work in public health, I know countless
transgender people who are homeless. These are good people who
can't get work. I flash my ID every day. It is never
questioned. But I have friends whose licenses and IDs don't
match their gender identity. So they are disclosed as
transgendered the minute that they have to show that ID,
including when they try to get work. I see this burden when
recruiting firms do their due diligence and check my Social
Security number. It closes doors for me, and it limits the
lives of my friends.
I grew up in the south where I wasn't allowed to be in
public swimming pools because I am not white. This experience
of employment discrimination against trans people feels like a
flashback. Please treat us, including me, transgender people,
as you treat others.
Thank you.
[The statement of Mr. Sanchez follows:]
Prepared Statement of Diego Miguel Sanchez
Mr. Chairman and Members of the Subcommittee: Thank you for adding
my voice to those you hear today. My name is Diego Miguel Sanchez, and
I am a 51-year old transsexual Latino man. I was born female and
transitioned to male. I grew up as an Army brat around the world,
ending up in Augusta, Georgia, where my 80-year-old mother lives today.
When I was five, I told my parents that I was born wrong, that I
felt like a boy inside. My mother showed me a magazine with Christine
Jorgensen on the cover. She told me that she didn't know if there were
other people like me--girls who felt like boys--but that this woman was
born a boy, felt like a girl and was able to become a woman later in
life. Mom told me that by the time I grew up, it would be okay. From
that time, my parents gently, privately, dually socialized me, but it
was our secret, of sorts. My mom prepared me for life as girls are
expected to be, and my dad taught me the lessons that boys needed to
become men. It was rough--I had as many tutus as Tonka Trucks. But I
could survive the former because of the latter. My parents always gave
me hope, and my positive outlook on life, despite painful hardships, is
the fruit of that loving labor. Mom was mostly right; it's almost okay
for me these days.
I am grateful to be gainfully employed as the Director of Public
Relations & External Affairs at AIDS Action Committee of Massachusetts
and AIDS Action Council in Washington, D.C. My college degree is in
Journalism with a major in Public Relations from the University of
Georgia. I am the only male Georgia letterman I know of who earned it
on the women's tennis team. I was one of those Straight A, perfect
attendance students. Dad always told me, ``The harder you work, the
luckier you get.'' I worked hard. I am lucky.
Because sex reassignment procedures weren't as developed in 1980 as
today, I focused on work, hoping to make changes in the future. I spent
nearly 20 award-winning years climbing the corporate ladder at several
global companies including Coca-Cola, Burson-Marsteller, Holiday Inn,
ITT Sheraton and Starwood Hotels.
I'm a loyal worker, a passionate leader and a man who had to wait,
for fear of being fired, to be who I was always destined to be: Diego
Miguel Sanchez, an honorable man. My career entailed navigating the
newly named Glass Ceiling, probing limited opportunities for female
professionals of color and trying to find a way to be a man while I
looked like a woman in the workplace. It was heart-breaking and
painful. But it was necessary. I did it because it was the only way I
knew to save money to pay for sex reassignment, which I did later from
my own savings.
I struggled with finding self-respect in a world that I never
imagined would allow--let alone accept or embrace--someone like me,
someone born seemingly wrong. I was an honest person who could be
honest about everything except about me. I negotiated with my corporate
colleagues for things that would moderately affirm me. It's the little
things that seem like `nothing' to others, that meant so much. It
warmed my heart to receive a tie rather than a scarf as a company
talisman. I asked people to use my first initial as my first name until
I could change things medically and legally.
I have lived long enough to achieve those gains because I was able
to do the ONE thing that military families are ordered to do when
there's a challenge: I sucked it up.
But when my head hits my pillow every night, I close my eyes and
think about my friends who are transgender whose lives aren't easy. I
miss my friend Alexander John Goodrum who took his own life. I feel
guilty about my friend Ethan St. Pierre who lost his job just because
he began his transition from female to male. I was the first transman
he met, and he lost his job because he is brave and honest. It wasn't
right. I still lose sleep over that injustice.
Because I work in public health, I know countless transgender
people who are homeless, and I know these people by their names and
character. These are good people who can't get work and whose lives are
cast to the streets in large cities and small towns. It's a disgraceful
injustice.
I flash my ID every day without concern. It's not questioned
because I have had the luxury of personally paying to transition to
male and aligning my IDs and myself. But I have friends whose licenses'
and passports' gender don't match their identity, so they are disclosed
as transgender the minute they show an ID, including when they try to
get a job. I face these burdens when recruiting firms ask for my former
names as part of their due diligence. It closes doors for me, and it
limits the lives of my friends.
It's an injustice that we are ever evaluated for employment based
on other people's comfort with our existence. I grew up in the South,
where I wasn't allowed to swim in public pools because I'm not white.
This experience today feels like a flashback.
I am before you today to affirm that transgender and transsexual
people, including me, are equally human and deserve to be treated like
other people. Thank you.
______
Chairman Andrews. Mr. Sanchez, thank you very much for your
statement.
Ms. Miller, I look forward to hearing from you.
STATEMENT OF JC MILLER, PARTNER, THOMPSON HINE LLP
Ms. Miller. Thank you, Chairman Andrews and Ranking Member
Kline and members of the committee.
I have spent 19 years as a trial lawyer after graduating
from what I still believe is the world's finest law school, the
University Of Notre Dame.
Chairman Andrews. Your testimony is now concluded. Thank
you very much.
Ms. Miller. There are more fighting Irish than fans of Big
Red, Chairman.
Chairman Andrews. I will point out--and I will not take
this away from your time--was Dean Blakey the dean when you
were at Notre Dame?
Ms. Miller. Yes, sir, he was.
Chairman Andrews. That is right. He was merely a professor
at Cornell.
Ms. Miller. We saw his talent.
My purpose in speaking to you today is not to encourage or
dissuade the committee from passing legislation on workplace
discrimination against transgender persons.
Rather, my intent is to provide you with some insight into
the potential unintended legal consequences of using certain
language in any proposed legislation and the challenges that
the American businesses may face in implementing that
legislation.
Promoting a workplace free of discrimination is not only
laudable; it is sound business practice. However, anytime new
legislation is enacted impacting the workplace, there is a
subsequent disruption in the workplace as managers, human
resource professionals and employees all try to implement the
new policies and adjust their working routine to comply with
the new legal mandate. This disruption can be minor, or it can
be significant.
At times well-intended legislation is enacted without
regard to the practical implications it will have in everyday
operations of the American business. Responsibility for
ensuring that the new law is applied to the workplace rests
with somebody in the company; often it is human resources
staff. But very often, with smaller companies, with 15 or more
employees, say 15 to 25, there is no dedicated human resources
position. It is instead a task that falls to someone else in
the company who is already juggling other duties, whether that
is the owner or one of the managers.
Even in those companies that have sophisticated human
resources staff, the implementation of new legislation can be
difficult if the law is particularly complex, or too vague, or
requires a drastic change in the work environment. As a trial
attorney, I have seen numerous instances where confusion over
what is required by a statute that is unclear has led to a
lawsuit and that, nonetheless, an employer who has tried to
comply in good faith with the law still gets sued.
And for these reasons I would ask the committee to
carefully consider the implications of any legislation which
might be enacted regarding transgender discrimination. I
respectfully suggest that the committee consider three specific
areas for any proposed legislation:
The first would be in the definition of gender identity or
transgender. Some of the proposed language which has been
brought to my attention would include the word ``mannerism.''
That is disturbing. We do not classify protected classes under
the law based on mannerisms. And I am concerned that if we use
that word in any definition, we actually may be perpetuating
stereotypes. For instance, 100 years ago, a firm handshake may
have been a hallmark of masculinity. In today's world, I would
hope that if a businesswoman has a firm handshake that is a
sign of not masculinity, but of the fact that she is confident
and she is very competent. And again, mannerisms are something
that can be changed. Intrinsic characteristics are not. So
please be careful in using the type of language that you would
use if you decide to go forward with this bill and define what
is transgender or gender identity.
The second purpose I would like--the second item I would
like the committee to consider would be the carve-out exemption
for an area of certain ``shared facilities.'' Some of the
language I have seen has also indicated that the shared
facilities would be places where there would be showers or
dressing areas or an area where viewing someone unclothed would
be unavoidable. To quote one of my dear mentors from the South,
that seems to be that we went around the block the long way to
get where we need to be. The word ``restroom'' really needs to
be in the legislation if there is any legislation. Quite
frankly, you don't want to have trial lawyers litigating over
whether the ladies room is a place where seeing somebody
unclothed is unavoidable or not unavoidable. The word
``restroom'' clearly needs to be inserted into any type of
legislation.
And the carve-out is important, and I would encourage the
committee to continue to use those carve-outs. Employees have a
very high expectation of privacy in certain areas, such as
dressing rooms, locker rooms and restrooms. I handled a case a
few years ago up in my home State of Massachusetts where a
female employee had brought a Title VII lawsuit, alleging
hostile work environment under Title VII based on the fact that
there was a hole in the ladies room which was about knee high
that, that was not put there intentionally, but it still
allowed, if someone bent down, the opportunity to view into the
restroom. And she felt that that was significant enough to her
to go ahead and rest part of her Federal lawsuit upon it.
Again, you need to be aware of the fact that employees do find
certain areas of privacy very important.
Finally, the issue of notification. There is some issue
here about what to do with an individual who might be
transitioning from one gender to another. And that is not easy.
I understand that the committee will be challenged if it
addresses that. We do need to have some sensitivity to the
employer. At what point does the employer need to make
modifications to their work room for individuals who might be
transitioning? If the person gives notice on Monday, does the
employer need to then allow them to use the restroom of the
opposite sex on Tuesday?
Finally, I would encourage the committee to consider
jurisdiction if there is any type of legislation that is
passed. With all due respect to the State judiciary, Federal
courts are far more equipped to handle discrimination suits.
They are better funded. The judges see them more often, and
they process through the court system much more rapidly than at
the State level. And for that reason, I would encourage that
this committee consider the jurisdiction of the Federal courts
to be exclusive if there is any such type of legislation.
And finally, prevailing costs or costs and fees to a
prevailing party is also important. Employers are getting
hammered by legal fees and costs to fight frivolous lawsuits.
And they need to have some sort of mechanism to be able to
recoup some of those costs.
[The statement of Ms. Miller follows:]
Prepared Statement of JC Miller, Partner, Thompson Hine LLP
Chairman Andrews, Ranking Member Kline, members of the Committee, I
am honored to have been invited to testify before you today on ``An
Examination of Discrimination Against Transgender Americans in the
Workplace.''
For the past 19 years I have represented both public and private
clients in litigation of discrimination claims such as sexual
harassment, equal pay, race, age, religion and disability. Prior to
entering private practice, I was an Assistant Attorney General for the
State of Florida, the Chief of Litigation for the Florida Department of
Labor and Employment Security, and Special Counsel to the Florida
Department of Corrections, where I represented public agencies in
litigation, torts and constitutional challenges and oversaw legislative
analyses of proposed bills. I have extensive experience in addressing
discrimination in the workplace, and I have been recognized in court as
an expert witness in the fields of workplace investigations and sexual
harassment.
My purpose in speaking to you today is not to encourage or dissuade
the Committee from passing legislation on workplace discrimination
against transgender persons, specifically H.R. 3685. Rather, my intent
is to provide some insight into the potential unintended legal
consequences of using certain language in any proposed legislation.
Promoting a workplace free of discrimination is not only laudable
it is sound business practice. However, any time new legislation is
enacted impacting the workplace, there is a subsequent disruption in
the workplace as managers, human resource professionals and employees
all try to implement new policies and adjust their working routine to
comply with the legal mandate. This disruption can be minor or
significant depending upon the nature of the new legislation.
At times, well intended legislation is enacted without regard to
the practical implications it will have on the every day operations of
the American business. Responsibility for ensuring that the new law is
applied to the workplace rests with someone in the company, often the
human resource staff. But at smaller companies, for instance many of
those with less than 25 employees, there is no dedicated full time
human resource position and the task to implement the new law falls to
an owner, or manager who is already juggling other duties. Even in
those companies that have a sophisticated human resources staff, the
implementation of new legislation can be difficult if the law is
particularly complex, too vague, or requires drastic change to the
working environment.
Legislation that is vague, overbroad, or imposes radical change
frequently leaves business managers frustrated and confused trying to
conform to the new law. Vague or impractical legislation significantly
increases the risk of litigation. When language in a statue is unclear
the consequence can be radically different interpretations of rights
and responsibilities by the employer and employee. These different
interpretations of the law can result in an impasse in the workplace so
severe it leads to litigation. As a trial attorney I have seen numerous
instances where confusion over what is required or permitted under a
statute has led to a lawsuit by an employee against an employer that
nonetheless had made a good faith attempt to comply with the law. For
these reasons I urge the Committee to carefully consider the
implications of any legislation which might be enacted regarding
transgender discrimination.
I respectfully suggest the Committee consider three specific areas
when drafting any legislation on the issue: the definition of gender
identity; the issues surrounding shared facilities; and jurisdiction
over enforcement of rights.
While I recognize that the definition of gender beyond
physiological or biological parameters is challenging, an overly broad
definition will not provide the necessary guidance to a business
manager to deal with the matter. Definitions which include a reference
to ``mannerisms'' without more precise language is confusing and could
inadvertently perpetuate sexual stereotypes. After all what is a gender
related ``mannerism''? For example, at one time a firm handshake was
the hallmark of masculinity; however in our current society a business
woman with a firm handshake is not perceived as `masculine' as much as
she is viewed as confident and professional. But legislation that
suggests that any mannerism is still more frequently attributed to one
gender more than the other inherently perpetuates the stereotype.
Asking a business manager to first proscribe certain mannerisms to one
gender rather than the other, then to refrain from discriminating
against any employee with that mannerism because it maybe part of the
employee's ``gender identity'', is counterproductive. Our goal should
not be to label a mannerism as ``masculine'' or feminine'', but rather
to determine if certain conduct is acceptable or unacceptable in the
work environment-regardless of which gender displays the mannerism.
Second, my understanding is that any legislation regarding gender
identity would include a ``carve out'' exemption for shared facilities,
where there may be showers or undressing. This exemption is crucial to
ensuring that any legislation protecting one class of employee would
not adversely impact the rights of another class. However, it is vital
that the language of legislation be clear and uncomplicated when
defining ``shared facility''. Some of the proposed language which I
have seen exempts ``shower or dressing facilities in which being seen
unclothed is unavoidable''. Remarkably absent from this language is the
word ``Restroom''. Not all restrooms contain showers, nor is being seen
unclothed in a restroom, particularly a ladies room unavoidable. Yet
employees do have expectations of privacy in restrooms and complaints
regarding restrooms in the workplace are not uncommon to Human
Resources staff. Thus restrooms ought to be included in the exemption.
Additionally, the language of the exemption must better address the
process of providing adequate facilities to an employee in the process
of transforming gender. Any requirement that the Employer provide
comparable dressing room/restroom facilities to an employee after
notification that the employee is undergoing a gender transformation
needs to be examined pragmatically. At what point after
``notification'' must an employer act? If the employee notifies the
Employer on Monday that he or she is undergoing gender transformation
must the Employer permit the Employee access to the restroom or
dressing room of the opposite gender on Tuesday? Or must the Employer
find an alternative yet comparable facility within hours of the
notification? Furthermore, if the Employer's facility is such that it
is unable to provide an alternative comparable facility, at what point
in the transformation process should the Employee be given access to
the facility of the gender to which they are transitioning? If access
is given early in the transition process the Employer risks violating
the privacy of employees currently using the facility who might be
offended that a co-worker currently manifesting all the physiological
attributes of the opposite gender is using the same facility. Finally
legislation should consider the implication of requiring a business
that provides a single, same sex facility for both employees and
customers to provide a facility for an employee ``undergoing'' a
transition to the opposite gender, and what consequence the requirement
may have on the customers unprepared to share a facility with an
employee still with the physical attributes of the opposite gender.
Third, any legislation should carefully consider jurisdiction
issues for the enforcement of rights. With all due respect to the
institution of the court state systems and the many fine members of the
state judiciaries, federal courts are better equipped to deal with
litigation of federal rights. Making the enforcement of rights under
ENDA or its progeny, the exclusive jurisdiction of the federal courts
can promote more expedient resolution of litigation as well as the
likelihood of more consistent outcomes. Unlike state courts which apply
each state's rules of evidence and procedure to suits, federal courts
uniformly apply the same federal rules of civil procedure and evidence.
State courts are often caught in the uncomfortable position of trying
to apply substantive federal case precedent to an action involving a
federal claim that is constrained by state rules of procedure.
Finally, on a related note, any legislation should provide for fees
and costs to a prevailing party in the litigation. Even if Congress
determines that federal courts should not have exclusive jurisdiction
of an action brought under the bill, the legislation should nonetheless
provide for fees and costs to an Employer if the Employer prevails in
the litigation. Litigation costs incurred by small to medium business
defending themselves from frivolous litigation are exorbitant. These
costs are generally unanticipated by the business and often the company
is not budgeted to absorb the costs without sacrificing another
business opportunity such as adding a new position, or expanding the
business.
In closing, the work of the Committee in addressing discrimination
in the workplace is laudable and critical. However it is important to
recognize that most Employers promote diversity and recognize that
discrimination in the workplace is both costly and counterproductive.
As any legislation that mandates a change in the workplace is
disruptive, that disruption should be kept to a minimum and the
statutory language should provide the business manager with clear guide
posts which acknowledge the practicalities of the workplace.
I am honored to have had this opportunity to address the Committee
and I thank you for your time and consideration this morning.
______
Chairman Andrews. Ms. Miller, thank you very much. I
appreciate it.
Dr. Hendrix, welcome to the subcommittee.
STATEMENT OF WILLIAM H. HENDRIX, III, PH.D., GLOBAL LEADER,
GAYS, LESBIANS AND ALLIES, THE DOW CHEMICAL CO.
Dr. Hendrix. Thank you very much.
Mr. Chairman and members of the subcommittee, my name is
Bill Hendrix, and I am a product stewardship specialist for the
Dow Chemical Company, and I have worked for them for 19 years.
In addition to my role as a product stewardship specialist,
I also serve on the company's Gays, Lesbians and Allies at Dow,
or the GLAD network. It is an affinity group advocating for
gay, lesbian, bisexual, and transgender, and allied employees
within the company. GLAD is one of the six employee networks at
Dow all working towards promoting an increasingly diverse and
inclusive workplace. Dow thanks the subcommittee for holding
this committee to examine the discrimination that many
transgender Americans face in their workplace.
First let me provide just a little bit of background on
Dow. Dow was founded 110 years ago in Midland, Michigan. Our
small-town, Midwestern roots have encouraged us to establish
enduring core values of integrity and respect for people. It is
these values that form the very heart of our approach to
diversity and inclusion. At Dow, we serve customers in 160
countries, and we have about 43,000 employees.
Clearly diversity underpins our workforce, our culture, and
indeed our very business model. We know that it is our human
element that is key to our success. As a result, we know that
creating a respectful inclusive working environment is not only
a matter of fairness and equality, but it is one of critical
economic and business importance. With a shrinking talent pool,
particularly in the sciences and engineering, it is essential
for us to actively include everyone to ensure that we attract
and retain the very best talent that is available to us. As an
industrial business-to-business supplier with virtually no
consumer marketing, we must work even harder to have an
identifiable employer brand.
When we discuss LGBT workplace policies, we do so knowing
that these policies give us an advantage. Because we don't have
major offices or facilities in the metropolitan areas of the
U.S., our LGBT employees often have more protection from
discrimination under Dow's policies than they do in the laws of
their State or locality. Specifically, our LGBT policies have
been good for our workplace for two main reasons: Number one,
retention of our LGBT employees, because they know that they
can perform their job without fear of repercussion and,
therefore, have more reason to be committed to the company; and
number two, better recruitment of allies and younger workers
who often use things like employee benefits, such as our
transgender policies, our flexible work hours, as a litmus test
for prospective employers.
For Dow, like most companies, the offering of benefits to
LGBT employees has been a result of a multistage journey. We
first instituted sexual orientation in our employee
nondiscrimination policies in 2000. We then added parity for
domestic partner benefits in 2002. And we added protection
based on gender identity in 2005. Of special note, we have
implemented this globally for all 160 countries that we do
business in.
When comparing our company to other Fortune 500s, Dow is
one of the nearly 300 that currently offer protection for our
employees based on gender identity. Loss of talent comes at a
very significant cost to employers, many of whom, like Dow,
will suffer from shortages of qualified workers as Baby Boomers
retire.
For our workplace transgender policy, we leveraged the
policy developed by the Human Rights Campaign and then modified
it slightly for our specific workplace conditions. This policy
strongly emphasizes the mutual respect and good communication
between the transitioning employee and his or her supervisor.
Communication to the transitioning employee's work group is
also critical. For example, working with the transitioning
employee, training seminars can be created to prepare
coworkers. Our policy also addresses questions such as
transitioning name change, updating company databases, and
offering support for other legal documents, such as passports,
that are required for work.
As I have mentioned, it has been a journey for my company.
On the whole, our program has gone remarkably well. We have had
one employee transition in the workplace since 2005 and utilize
these policies. As expected, coworkers have had a few questions
and concerns. But our company has been able to address them and
to ensure that the workplace remains very respectful and
productive. In discussions with the transitioning employee, she
felt that most of her coworkers were quite accepting and
supporting.
Overall, we have achieved a positive reception of our
transgender policy both internally and externally. Internally,
because of our strong commitment to our human elements campaign
policies, very little negative notice was taken of the
inclusion on gender identity. This is just one more diversity
factor within a comprehensive program that our company offers.
Dow appreciates the chance to share our views and applauds the
committee's work to gather more information on gender identity
within the workplace, and we welcome any further questions you
may have.
[The statement of Dr. Hendrix follows:]
Prepared Statement of William H. Hendrix, III, Ph.D., Global Leader,
Gays, Lesbians and Allies at Dow
Mr. Chairman and members of the Subcommittee, my name is Dr. Bill
Hendrix, and I am a product stewardship specialist for the
Insecticides, Seed & Traits business within Dow AgroSciences LLC, a
100% wholly owned subsidiary of The Dow Chemical Company. I hold a
Ph.D. in Entomology from Iowa State University and have worked for Dow
for 19 years.
In addition to my role as a product stewardship specialist within
Dow, I also serve as the chair of the Company's Gays, Lesbians and
Allies at Dow (GLAD) Network, an affinity group advocating for gay,
lesbian, bisexual, transgender and ally employees within the company.
GLAD is one of six employee networks at Dow, all working toward
promoting an increasingly diverse and inclusive workplace. GLAD was
first established in 2000.
Dow thanks the Subcommittee for holding this hearing to examine the
discrimination that many transgender Americans experience in their
workplace.
First, I will provide some background on Dow. Dow was founded 110
years ago in Midland, Michigan, a small town of about 40,000 people
just over 100 miles north of Detroit. Our small town Midwestern roots
have encouraged us to establish our enduring Core Values of Integrity
and Respect for People. It is these Values that form the very heart of
our approach to Diversity and Inclusion.
Over the years, as we have grown and become a major player in the
global economy, Diversity and Inclusion have truly become key elements
of our corporate culture. Just consider our footprint: we serve
customers in 160 countries, we have manufacturing sites in 35 different
countries, and at last count, my 43,000 colleagues represent about 100
different nationalities.
Clearly, diversity underpins our workforce, our culture and,
indeed, our business model. In a highly competitive world where
innovation is the key to securing competitive advantage, we know that
it is our ``Human Element'' that is key to our success. As a result, we
know that creating a respectful, inclusive working environment is not
only a matter of fairness and equality, but also one of critical
economic and business importance.
With a shrinking and ever more diverse talent pool--particularly in
the sciences and engineering--it is essential for us to actively
include everyone to ensure we attract, develop and advance the very
best talent available in the marketplace. As an industrial, business-
to-business supplier with virtually no consumer marketing, located
largely in smaller rural areas, we must work even harder to have an
identifiable employer brand to attract top talent. We see our proactive
stance on diversity and inclusion as a key element of this brand.
Our open policy allows us to hire the best employees, with the
greatest range of perspectives. When we discuss the LGBT policies in
the workplace, we do so knowing that this policy gives us an advantage.
Because we don't have major offices or facilities in the metropolitan
areas in the US, our LGBT employees often have more protection from
discrimination under Dow's policies than under the laws of their state
or locality. In fact, according to the latest report from the Human
Rights Campaign (HRC), only twelve states and the District of Columbia
prevent employment discrimination based on gender identity; no federal
law clearly prohibits employment discrimination against LGBT employees.
Specifically, our LGBT policies have been good for our workplace
for two main reasons: a) retention of our LGBT employees has been
enhanced, because they know that they can perform their jobs openly
without fear of repercussion and therefore have more reason to be
committed to the company in return, and b) better recruitment of allies
and younger workers, who often use employee benefits, such as support
for domestic partnerships and flexible work hours, as a litmus test for
prospective employers.
For Dow, like most companies, the offering of benefits to LGBT
employees has been the result of a multi-stage journey. We first
instituted sexual orientation in our employment nondiscrimination
policies in 2000. We then added parity for domestic partnerships in
2002. We added protections based on gender identity in 2005. A copy of
our policy is attached as exhibit A. Of special note, we have
implemented this globally for all the 160 countries in which we have
employees!
When comparing our company to other peer Fortune 500 companies, Dow
is one of the nearly 30 percent that currently offer protection for
employees based on gender identity. While non-discrimination policies
are just one component of inclusive workplaces, increasingly, U.S.
employers are becoming like Dow and providing similar workplace
protections. Surveys have shown that at least one of every five
transgender people has experienced workplace discrimination and
harassment. Such discrimination, and subsequent loss of talent, comes
at a significant cost to employers, many of whom, like Dow, will suffer
from shortages of qualified workers as baby boomers retire (Transgender
Inclusion in the Workplace 2nd edition, April 2008, Human Rights
Campaign Foundation Report, 64 pg).
For our workplace transgender policy, we leveraged the policy
developed by HRC and then modified it slightly for our specific
workplace conditions. A copy of this policy is attached as exhibit B.
This policy strongly emphasizes mutual respect and good communication
between the transitioning employee and his/her supervisor. However, if
the employee doesn't feel comfortable talking directly with their
supervisor, they may elect other options such as their HR
representative or a leader from the GLAD network. Communication to the
transitioning employee's workgroup is also critical. Working with the
transitioning employee, training seminars or educational emails can be
created to prepare co-workers. Our policy also addresses the questions
of a transitioning employee's workplace dress, as well as changing that
employee's name, including updating company databases and offering
support for other legal documents such as passports, an important
document for global company employees.
While already a welcoming workplace, Dow's commitment to
transgender inclusion in our workplace continues to grow. Currently,
Dow is looking at ways to expand our transgender health benefits to
include coverage of hormone therapy and long-term counseling. We now
provide counseling relating to gender transition through our Employee
Assistance Program. While, many companies, like Dow, are exploring how
to provide better health coverage for transgender workers, there are
some companies that do offer these types of benefits. According to the
HRC Foundation Report on Transgender Inclusion in the Workplace 2nd
edition (April 2008), there are 78 companies that offer transgender
health benefits without exclusion to their transgender employees. These
include large employers such as IBM, General Motors, and Eastman Kodak.
As I have mentioned, it has been a journey for my company. On the
whole, our program has gone remarkably well. We have already had one
employee transition in the workplace and utilize the policies. As
expected, co-workers have had a few questions and concerns, including
about restroom use in the workplace, but, our company has been able to
address them and ensure that the facility in question remains a
respectful and productive environment. In discussions with the
transitioning employee, she felt her transition was going well, and
most of her coworkers were quite accepting and supportive. Of interest
is that this employee is based in a rural, coastal Texas location.
Overall, we have achieved a positive reception of our transgender
policy, both internally and externally. Externally, one of the key
metrics for our company is the HRC Corporate Equality Index, where we
have maintained a 100% rating since 2005. Transgender policies are
currently a key component of the ranking criteria. Internally, because
of our strong commitment to our Human Element campaign's policies, very
little negative notice was taken of the inclusion on gender identity.
This was just one more diversity factor within our comprehensive
program.
Dow appreciates the chance to share our views and applauds the
committee's work to gather more information on gender identity within
the workplace. We strongly support protections against discrimination
based on gender identity and sexual orientation in the workplace and
welcome any further questions you may have.
Exhibit A.--Our Global Policies for Inclusion--Respect and
Responsibility
http://www.dow.com/diversity/beliefs/inclusion.htm
We encourage a culture of mutual respect in which everyone
understands and values the similarities and differences among our
employee, customers, communities and other stakeholders. We work to
provide an atmosphere that encourages positive interaction and
creativity among all employees.
It is the policy of The Dow Chemical Company that employees be
provided a work environment which is respectful and free from any form
of inappropriate or unprofessional behavior, such as harassment
including sexual harassment, pestering or bullying and any form of
unlawful discrimination based on sex, gender, race, sexual orientation,
gender identity, disability, age, ethnic origin, or other inherent
personal characteristic protected by law.
Exhibit B.--Workplace Guidelines for Transgendered Employees
Overview
At Dow, we want our employees to be at their maximum productivity.
Employees who can be honest about who they are can put their full
energy into their job. As a result, we prohibit discrimination against
or the harassment of employees based on their sexual orientation or
gender identity or characteristics.
Scope
This document is intended to provide guidance to transgendered
employees and their leader(s) to help both understand the workplace
issues that transgendered employees may face as they undergo gender
transition.
It in no way obligates The Dow Chemical Company to provide any
employee benefit beyond what may be allowed in existing Summary Plan
Descriptions (U.S.) or similar benefits programs' policy descriptions
in other countries.
This document is also not a statement of policy of The Dow Chemical
Company, but rather is intended to offer guidance to employees and
their leaders within the provisions of policies and programs separate
from this document.
Definitions
Gender Identity refers to those individuals who, with the
documented support of medical or psychological professionals and in
accordance with the recognized Informed Consent Model of Care or the
Harry S. Benjamin Standards of Care, are changing or have changed their
physical characteristics to facilitate personal and public redefinition
of their sex as opposite that which there were assigned at birth.
Transitioning Employee refers to an individual who is in the
process of modifying his/her physical characteristics and/or manner of
expression to satisfy the standards for membership in a gender other
than the one he/she was assigned at birth.
Transitioning Employee Guidance
If you are a transitioning employee, you should be comfortable
being openly who you are. This means expressing your gender identity,
characteristics or expression without fear of consequences. It is
important, however, that you inform key personnel in your workplace who
need to know about the change and the impact on your work (the need to
be away from work for treatment, for example). Your first point of
contact may be your immediate supervisor, and/or your local human
resources or Employee Assistance Program (EAP) representative. If you
are not sure or perhaps uncomfortable contacting the above-mentioned
individuals, you may wish to first contact a leader (steering team
member or Site Implementation Leader) or other participant in the Gays,
Lesbians and Allies at Dow (GLAD) employee network for support and
guidance.
Explain to the person that you've selected to speak to your
intentions, needs and concerns. Remember you are covered under Dow's
equal opportunity policy. Your leader, HR and others may not be
educated about transgender issues and may not understand clearly what
your needs may be. You should be prepared to spend some time educating
people. Providing them with a copy of these guidelines may help. As you
prepare to make your situation more widely know to your co-workers, you
need to expect them to be unfamiliar with your situation and your needs
during this time. You and your leader will need to work together to
develop a strategy to address this mutual education process.
Leader Guidance
If you have an employee who is transitioning, it is important that
you demonstrate an understanding, sensitive approach to his/her needs
and concerns. It may be frightening to an employee to make himself or
herself vulnerable to a person upon whom their job depends. Our culture
supports diversity and inclusion. If your employee informs you of his/
her desire to transition or if an employee is currently in the
transitioning process, your support is critical. Your actions may
determine if the transition is successful or not. If you are not
familiar with transgendered individuals, allow the impacted employee to
educate you. Be open-minded and discuss with the employee his/her needs
and concerns. Make it clear to the employee that your conversation will
be held in the strictest of confidence and you will share the
information only with those who have a business need to know the
information, such as your HR partner. Explain any concerns you might
have and ask the employee's opinion regarding the best method and time
for informing co-workers about the transition process.
During the early stages of an employee's transition, few, if any,
accommodations will be required on your part. However, at some point,
issues dealing with an employee's physical appearance and usage of
restroom facilities must be addressed. You should be prepared to
address the questions and concerns of co-workers; however, the utmost
care must de taken to assure the transitioning employee that his / her
personal situation will continue to be held in confidence during these
discussions. Along these lines, communications are best handled one-on-
one versus group settings or mass communication methods like E-mail.
Restroom and Locker-Room Access Issues
Restroom and locker-room access issues need to be handled with
sensitivity, not only to our obligation to provide transitioning
employees with the same level of access available to non-transgendered
employees, but also to the emotional responses to co-workers to the
idea of sharing facilities with a transgendered co-worker.
An employee should use the facility based on his/her current
gender. The transitioning employee and leader may want to explore the
use of alternative facilities during the transitioning process.
However, once transition is complete, a transgendered employee has the
right to the same access as a non-transgendered employee of the same
gender.
Attire and Appearance Guidance
Employees who are transitioning are required, prior to surgery, to
assume the role for their reassigned gender. This process is known as
the real life experience. Although professionals may recommend living
in the desired gender as a step to surgery, the decision as to when and
how to begin the real-life experience remains the employee's
responsibility. Part of that experience is dressing and adopting other
appearance characteristics in the reassigned gender role.
A transitioning employee's attire and appearance should remain
appropriate to the office or work setting in which they work and the
job they hold. The same dress expectations apply to transgendered as to
other employees. If, as a leader, you are concerned about the
appearance your transgendered employee will present when she or he
starts coming to work in the other gender role, ask for a picture of
her or him in work attire. If you still have concerns, these should be
addressed with your employee. If she or he dresses or behaves
inappropriately, this issue should be dealt with the same way it would
with any other employee. Similarly, co-workers are expected to maintain
a respectful work environment and any behavior to the contrary should
also be dealt with by the leader.
Medical Requirements
Transitioning employees should provide regular medical updates to
Dow Health Services (at least every six months during the transition
process). This information should come from the employee's primary
health care provider and should detail where the employees is in the
transition process and what type, if any, restrictions apply to the
employee's work activities. Time off from work as a result of surgery
or other medical inability to work is generally paid and covered under
Employee Illness Leave.
Additional Resources
Many additional resources are available through the Human Rights
Campaign, a U.S.-based civil rights organization that advocates for
equal rights for gay, lesbian, bisexual and transgender Americans.
These are available on-line at http://www.hrc.org (follow links to
Workplace issues).
______
Chairman Andrews. Thank you, Dr. Hendrix. We appreciate
your perspective very much. Thank you for being here.
Mr. Lavy, welcome to the subcommittee.
STATEMENT OF GLEN LAVY, SENIOR COUNSEL AND SENIOR VICE
PRESIDENT FOR MARRIAGE LITIGATION, ALLIANCE DEFENSE FUND
Mr. Lavy. Mr. Chairman and members of the committee, thank
you for allowing me to testify today. You are hearing stories
of painful experiences in the workplace.
Chairman Andrews. I am sorry, Mr. Lavy. Will you pull the
microphone a little closer to you? I think it is on, but it is
a little muffled.
Is it on? Is your light on?
Mr. Lavy. You are hearing stories of painful----
Chairman Andrews. We won't take this from your time either,
even if you didn't go to Cornell.
Mr. Lavy. You are hearing stories of painful experiences in
the workplace. You are being asked to make a moral judgment
about the treatment of transgendered persons in the workplace.
You are being asked to make the judgment that it is immoral for
employers to refuse to accommodate a person's belief that he or
she is a member of the sex that is opposite their anatomical
sex.
What you have not heard is that some employers have deeply-
held religious beliefs about these issues. Other employers do
not have a ready ability to be able to accommodate a
transgendered employee without violating the rights of other
employees or members of the public when it comes to the use of
restrooms. And unless an employee specifically requests an
accommodation for his or her belief that he or she is a member
of the opposite sex, an employer has no means of knowing the
employee's views.
Most transgender anti-discrimination laws refer to actual
or perceived gender identity or expression. This type of
provision is highly problematic for employers. How is an
employer to know what an employee's sense of themselves is
without the employee expressly disclosing it? The subjective
nature of gender identity makes it wholly unlike an objective
and mutable characteristic like race. An employer seldom, if
ever, needs to wonder what an employee's race is. That is
something that the employer can simply tell by observation.
It is often, probably usually, impossible to tell simply by
looking at a person what that person's concept of their gender
identity is. Indeed, gender identity often is as unobservable
as religious beliefs. And religion has never received
protection under Title VII without the employee specifically
requesting an accommodation of a religious belief. Even then,
even when an employee does request an accommodation, employers
are not generally required to provide the accommodation if it
is too expensive or too inconvenient for them to be able to do
so.
The problems raised today do not have a simple solution
that can be solved by mandating accommodation by employers. In
addition to religious objections, many people have genuine
privacy concerns about the use of restrooms. I am sure you have
been hearing about the debate in Montgomery County, Maryland,
where Montgomery County passed legislation that does allow men
to use a woman's restroom before having sexual reassignment
surgery.
Some employers cannot accommodate the restroom issue for a
transitioning employee, regardless of whether they want to. The
Etsitty case from the 10th Circuit that I cited in my testimony
is an example. A Utah Transit Authority bus driver dressed as a
woman but had male anatomy. While driving his route, he had to
use public restrooms. The employee could not necessarily find a
restroom that was available for single use because every day
the employee had a different bus route. This was a substitute
bus driver. The employer had the choice of keeping the employee
and risking claims of violation of privacy of other people in a
public restroom or terminating the employee. If there were a
Federal law creating protection for gender identity, the
employer would have been forced to accept the risk of liability
for violations of other people's privacy in public restrooms.
That is a very real risk that a number of employers would face
if this committee were to prepare legislation giving specific
protection to gender identity.
I am not asking this committee to make a moral judgment
about transgendered persons. What I am suggesting is that the
Federal law should not make that moral judgment for all
employers. Thank you.
[The statement of Mr. Lavy follows:]
Prepared Statement of Glen Lavy, Senior Counsel, the Alliance Defense
Fund
Chairman Andrews, Ranking Member Kline, members of the Committee,
thank you for inviting me to testify today on the issue of ``An
Examination of Discrimination Against Transgender Americans in the
Workplace.''
I am senior counsel at the Alliance Defense Fund. For more than 7
years my colleagues and I at ADF have been working to protect the
unique status of marriage as being between one man and one woman. Three
times I have argued in support of marriage in the California courts,
most recently in the California Supreme Court, and have been involved
in some capacity in every major marriage case in the country. But the
radical efforts to eliminate the unique, opposite-sex nature of
marriage are only a precursor to the opposition's most dangerous
principle. That principle is simply stated: that biological sex and
gender are utterly divorced from one another. If the proponents of the
idea that individuals have the right to pick their own gender succeed,
upholding the definition of marriage as a man and a woman will be
meaningless.
Today I speak out of my experience because of the palpable danger
to religious liberty and freedom of conscience if Congress were to
define gender identity and expression as a protected class. Certainly
there are individuals who suffer very real emotional strife from sexual
confusion--it is a distinct psychological diagnosis in some cases.
Declining to accommodate an employee's belief that he or she is
actually a member of the opposite sex, however, is not a form of
invidious discrimination. This is not an issue that should be the
subject of federal legislation.
Religious Liberty and Rights of Conscience in the Workplace
It is important to recognize that religious objections to the
concept of ``transgender'' are based on theological beliefs rather than
discomfort with or fear of the unfamiliar. The concepts of male and
female being established at birth and the two sexes being joined in
marriage are integrally related to theological beliefs about the
relationship between God and the church. Forcing persons with such
beliefs to treat ``transgender'' as a valid concept is like forcing an
Orthodox Jew to eat pork. Regardless of one's views of the merits of
such beliefs, it is undeniable that such good faith beliefs exist.
Trampling those beliefs raise serious constitutional issues under the
First Amendment.
The sincerity of religious beliefs about male and female is why
creating federal protection for gender identity and expression would
have an unavoidable negative impact on religious liberty and rights of
conscience in the workplace (providing such legislation were not
ultimately deemed unconstitutional as applied to religious persons or
organizations). The legislation would infringe on religious liberty and
rights of conscience of both religious employers and ordinary business
owners. This would be true even if the legislation included the same
religious exemptions provided under Title VII.
Section 702(a) of Title VII allows religious organizations to
discriminate on the basis of religion for ``work connected with the
carrying on by such corporation, association, educational institution,
or society of its activities.''1 But we've already seen that these
``exemptions'' are not sufficient to protect the fundamental right to
freely exercise religion. For example, when a person who professes the
same religious beliefs as an employer engages in behavior the
organization deems immoral, the employer may at least face costly
litigation. In 2005 Professor John Nemecek began appearing on campus as
a woman at Spring Arbor University, a Christian liberal arts school.
When the university fired him for his behavior, he filed a claim with
the Equal Employment Opportunity Commission.2 The professor asserted
that he had not violated a tenet of the university's faith. Although
the university should have prevailed if it had litigated the issue, it
settled the claim rather than endure costly litigation.
Many Christians exercise their faith through religious ministries--
often called ``parachurch ministries''--that have even less protection
than traditional churches have under these ``exceptions.'' There is a
great deal of debate over how closely such a ministry must be connected
to a church to qualify for exemption. For example, one court held that
a United Methodist children's home was not a ``religious
organization.'' It made this astonishing ruling despite the fact that
the home was hiring a new minister specifically to protect its
religions mission.3 Another court recently devised a nine-part,
subjective ``balancing'' test to decide whether a Jewish community
center was ``religious'' under Title VII. The court said that ``not all
factors will be relevant in all cases, and the weight given each factor
may vary from case to case.''4 Importantly, two of the nine
``secularaizing'' factors identified by the court are very common among
parachurch ministries: few such ministries are directly controlled by a
church; and many will provide ``secular'' products (such as food,
shelter, counseling, or legal services that are not of themselves
religious). That includes organizations like mine, ADF. In sum, many
parachurch ministries may not be protected by the Title VII exemptions.
That could result in the ministries being forced to hire employees who
openly violate the ministries' standards.
Commercial business owners with strong religious views about
transsexual issues would have no protection at all under Title VII
exemptions. That would be especially problematic for small business
owners who are closely associated with the business. In addition to
violating the employer's conscience, employing a man who dresses as a
woman and wants to use the women's restroom would have a negative
impact not only on other employees and customers, but would reflect on
the business owner's reputation in the community. It creates an
implication that the owner approves of the behavior, or at least
accepts the behavior as valid. That is an even bigger issue for owners
of day-care centers and religious book stores, where customers have an
expectation that their values will be respected.
The Ambiguity of ``Gender Identity and Expression''
Gender identity and expression are extremely vague concepts. Gender
Public Advocacy Coalition (``GenderPac''), an organization dedicated to
eliminating gender norms, defines gender identity as ``an individual's
self-awareness or fundamental sense of themselves as being masculine or
feminine, and male or female.'' GenderLaw Guide to the Federal Courts
and 50 States, p. 3 of 90 (available at http://www.gpac.org/workplace/
GenderLAW.pdf; viewed June 24, 2008). It defines gender expression as
``the expression through clothing and behavior that manifests a
person's fundamental sense of themselves as masculine or feminine, and
male or female. This can include dress, posture, vocal inflection, and
so on.'' Ibid. In essence, the concept of gender expression is that the
totality of the way a person looks, dresses, and acts is his or her
gender--in other words, there are an infinite number of genders.
Everyone really has their own gender.
Typical gender identity provisions prohibit discrimination based
upon ``actual or perceived'' gender identity or expression. This type
of provision is highly problematic for employers. How is an employer to
know what an employee's actual gender identity is without asking? Could
an employer ask without eventually being accused of discrimination? How
is one to know how an employer perceives an employee's gender identity
or expression? The ultimate subjectivity in gender identity and
expression arises from the idea that a person can self-identify his or
her gender identity, and this subjective self-identification can change
an infinite number of times without notice to the employer. There is
simply no objective criteria an employer can utilize to ascertain an
employee's gender identity.
The subjective nature of gender identity makes it wholly unlike an
objective, immutable characteristic like race. An employer seldom, if
ever, needs to wonder whether an employee is African American, Asian,
Latino, or Caucasian. He or she can tell by observation. That is
impossible with the concept of gender identity. Indeed, gender identity
is as unobservable as religion. And religion has never received
protection under Title VII without the employee specifically requesting
an accommodation of a religious belief. Even then, employers are not
generally required to provide the accommodation if it is too
inconvenient.
Gender expression is likewise a problematic criterion for
employers. How could an employer ever adopt and enforce dress codes if
gender expression is a protected category? How is an employer to know
whether a person's attire, posture, vocal inflection, and so on really
reflects that individual's ``fundamental sense of themselves as
masculine or feminine, and male or female''? If the totality of the way
a person presents oneself is ``gender,'' then gender is the ultimate
reason that any employee is disliked. That concept is too subjective
and elastic for an employer to know what is required.
Adding gender identity and expression to employment
nondiscrimination laws could result in providing special protection for
most employees. For example, according to GenderPac, ``At some point in
their lives, most people experience some form of discrimination or bias
as a result of gender stereotyping.''5 Under this view, any employment
law prohibiting discrimination based on gender expression or identity
may give rise to a significant number of discrimination claims, no
matter what an employer does. If ``most people'' can claim gender
identity or expression discrimination when they are terminated from
employment, lose out on a promotion, fail to obtain a job, etc.,
``employment at will'' will have lost all meaning.
Gender identity or expression laws have not existed long enough to
allow a thorough analysis of how they will be applied. But there have
already been lawsuits by transsexuals against employers claiming the
right to use restrooms reserved for members of the opposite sex. In
fact, eight years ago the Minnesota Court of Appeals ruled that an
employer violated an employee's rights by designating restrooms and
restroom use on the basis of biological sex. Goins v. West Group, 619
N.W.2d 424, 429 (Minn. App. 2000). Fortunately, the Minnesota Supreme
Court reversed the decision (635 N.W. 2d 717, 723 (Minn. 2001)). The
Court of Appeals opinion, however, shows how some courts are likely to
construe employment laws creating a protected class for gender identity
or expression.
Rights of Privacy
Many women in particular are concerned about the infringement on
their right to privacy in restrooms if transsexuals with male anatomy
are permitted to use women's restrooms. Parents also have a legitimate
concern if persons who exercise authority over their children, such as
teachers or day care workers, are permitted to use restrooms that are
inconsistent with their physical anatomy. The extent of these concerns
is evident from recent events in Montgomery County, Maryland, where
citizens are attempting to challenge a new gender identity law in a
referendum. One of the primary complaints of those challenging the law
is that it allows men to use a women's restroom when women and girls
are in it.6 The primary privacy concern is not what happens after a
transsexual has surgical alteration, but what may happen if physical
anatomy is not the criteria for restroom usage. With gender identity
being totally subjective, who could challenge any male who says he
wants to use a women's restroom? Women and girls should not have to
risk having their privacy violated by anatomical males using women's
rest rooms.
Given the extent of concern about rights of privacy in restroom
usage, employers have a legitimate concern about how to deal with
employees who wish to use a restroom designated for members of the
opposite sex. The concern is most obvious when a transsexual employee
retains his or her original anatomy, but is dressing as a member of the
opposite sex. That is the situation that arose in a recent case from
Utah, Etsitty v. Utah Transit Authority.7 A man who had been diagnosed
with Gender Identity Disorder and had been taking female hormones for
nearly 4 years obtained employment as a substitute bus driver. As a bus
driver, the employee had to use public restrooms along whatever route
he drove. The employee dressed as a man when hired and during
orientation, but notified his supervisor of his intent to present
himself as a female soon after being hired. While presenting as a
woman, the employee began using public restrooms designated for women.
When the operations manager learned of the situation, she and a human
resources generalist met with the man to inquire about his
circumstances. The company ultimately terminated the employee because
of concerns about his use of women's restrooms while retaining his male
anatomy. The United States Court of Appeals for the Tenth Circuit
upheld the termination as valid because gender identity is not covered
by Title VII. If gender identity or expression were a protected
category, however, the transportation company would have been forced to
keep the man as a bus driver. It would have also been forced to face
the risk of liability to the public for knowingly allowing a male
employee to use public restrooms designated for women.
Conclusion
I strongly urge the committee to reject pressure to extend
protected class status to gender identity and expression. The concepts
are far too ambiguous to be susceptible to objective regulations that
would protect the privacy rights of the public and other employees, or
the religious liberty and rights of conscience of religious
organizations, parachurch ministries, and commercial employers.
``Transgender discrimination'' is not an issue that should be the
subject of federal legislation.
Thank you
endnotes
\1\ Section 703(e)(1) provides an exemption for discrimination on
the basis of religion, sex, or national origin where they are ``a bona
fide occupational qualification reasonably necessary to the normal
operation of that particular business or enterprise.''
\2\ ``Christian College Fires Transgender Professor,'' Associated
Press via Detroit Free Press (Feb. 4, 2007), http://
www.religionnewsblog.com/17388/transgender.
\3\ Fike v. United Methodist Children's Home of Virginia, Inc., 547
F. Supp. 286 (E.D. Va. 1982), aff'd, 709 F.2d 284 (4th Cir. 1983).
\4\ LeBoon v. Lancaster Jewish Community Center Ass'n, 503 F.3d
217, 226-227 (3rd Cir. 2007).
\5\ GenderPac says that ``Gender Stereotyping can be considered the
root cause of discrimination based on gender expression, identity, or
characteristics, and--in an expanded reading--discrimination based on
sex and sexual orientation.'' Ibid, p. 3 of 90.
\6\ ``Transgender Bill Facing New Round of Opposition,'' Courtney
Mabeus, The Examiner (Jan. 17, 2008), available at http://
www.examiner.com/a-1163314?Transgender--bill--facing--new--round--of--
opposition.html.
\7\ 502 F.3d 1215 (10th Cir. 2007).
______
Chairman Andrews. Mr. Lavy, thank you very much for your
testimony.
Ms. Taraboletti, welcome to the subcommittee.
STATEMENT OF SABRINA MARCUS TARABOLETTI, AERONAUTICS ENGINEER
Ms. Taraboletti. Mr. Chairman and all members of the
committee, thank you for inviting me here today.
My name is Sabrina Marcus Taraboletti. And I am the parent
of two beautiful children who I love and who in turn love me. I
am also a transgender woman.
I grew up in a very conservative traditional middle-class
Italian Catholic family in Pelham, New York. We were a close
loving family, much like you would see in the movie, ``My Big
Fat Greek Wedding.'' I attended SUNY Maritime College, one of
the country's premiere Merchant Maritime academies, and
graduated with a degree in engineering and a Coast Guard
license to be an officer in the Merchant Marine.
Shortly after college, I moved to Florida to work on the
space shuttle at Kennedy Space Center. Most who know me will
share that I am passionate about the space program and honored
to be part of its history. After 20 years of service, my final
employer was United Space Alliance, the prime contractor of the
shuttle program.
So what happened to my dream job? In 2003, I was summarily
fired six weeks after announcing that I would be changing my
sex from male to female. After assigning security personnel to
follow my every move, charges were drummed up. And I was
suspended without pay, pending a board hearing for dismissal. I
was escorted off the Space Center grounds and told not to
return. I was told the actions were the result of an
investigation initiated by an anonymous hotline call.
To my knowledge, I was the fourth person attempting
transition at the Space Center while trying to keep their job.
The first three before me also failed. The first woman was a
union machinist who could no longer take the harassment of her
fellow employees and left the Center to find work elsewhere.
The second woman was isolated and given no work to do. She was
fired after she made enough mistakes. The last woman was a
launch pad technician who was jeered and scoffed at until she
finally took her own life, an all too often occurrence.
We fail because there are no formal transgender policies or
procedures at the Space Center. There are no policies because
there are no laws at the State or Federal level requiring
employees to have them. My future, therefore, was left up to
the interpretation of people who have no education in
transgender issues or needs. Worse yet, no one really cared or
wanted to learn, even though I made a diligent effort to
educate them. It was easier for them to find a way just to have
me removed.
I cannot tell you how meaningless life feels when an event
like this happens. I didn't know where to turn or what future I
had. I was humiliated. I was fired. After 20 years of service,
I received no severance pay, nor was I allowed to collect
unemployment. I have had to tell future employees, or future
potential employers, I was dismissed. It has made finding new
employment almost impossible.
What is even more troubling is that I had anticipated the
possibility of my job loss and worked furiously to avoid it. I
reached out to my management, my coworkers, H.R. and even the
associate administrator of EEO for NASA. But there was no help
from any level.
Four years later after submitting what seems like hundreds
of applications, I have not been able to find a new position in
the space program, which is not only the field I love, but is
one of the few industries in my area where an engineer like me
can find a job.
There are those who believe that being transgender is a
lifestyle or a choice. Personally, I have lost my wife, most of
my assets and my home in divorce. I have been abandoned by half
of my family and friends.
At the same time, I have had to find $79,000 of funding and
endure the extreme pain of electrolysis and various other
surgeries required to complete the transition from male to
female, all this while trying to stay employed.
Believe me, no one wakes up one morning and says, hey, I
think I am going change my sex today. No one says, you know,
living with that discrimination and hatred won't be all that
bad after all. Being transgender is something you are born with
and something you have to deal with just the best way you can.
There is more to my life than just my profession. During my
time at the Space Center I married and, after 14 years,
unfortunately, divorced. I have two children. I am their
father; something I assured them would never change. My
relationship with my children is very strong, and I am active
in both their academic and personal lives. My daughter, 19,
presently lives with me. She attends the University of Central
Florida on a full chemistry scholarship. My son, 17, is still
in high school but recently was accepted to attend at my alma
mater.
But my family is not really separate from my job. My
economic security impacts them as well. My feeling of worth
also impacts them. So when I face discrimination, they face it,
too. What happens to me because I am transgender also happens
to them, not only because they love me but because I still
provide for them. How I am treated is how they are treated as
well.
I am a good engineer, I am a good parent, and I am a good
person. I am still a practicing Catholic, and I honor my
country. I do not deserve the job discrimination that I faced.
People should be judged by the quality of their work, by the
quality of their character. So many of us face what I have
faced. More are preparing to face it in the future. It needs to
stop.
Chairman Andrews. Ms. Taraboletti, thank you very much. We
appreciate you being here. Thank you.
[The statement of Ms. Taraboletti follows:]
------
Chairman Andrews. Mr. Minter, you are our final witness on
this panel. Welcome.
STATEMENT OF SHANNON MINTER, LEGAL DIRECTOR, THE NATIONAL
CENTER FOR LESBIAN RIGHTS
Mr. Minter. Mr. Chairman, members of the subcommittee,
thank you. Thank you very much for convening this hearing. This
is the first time that members of the transgender community
have had a chance to talk with Congress so directly about our
lives, and we very much appreciate that, and it is an honor to
be here today with Colonel Schroer and the other witnesses.
The focus of my testimony is on the urgent need for a
Federal law to protect transgender workers. In addition to
speaking to you today as an attorney who specializes in
transgender legal issues, I am also pleased to be able to speak
to you as a transgender man. I was born female and transitioned
from female to male several years ago.
Some transgender people are fortunate to have support in
the workplace. Very often, however, when a person discloses
that they are transgender or when the employer otherwise
discovers the person's transgender status, learns of that
status, that employee is very likely to face termination,
harassment or even violence.
Just last year, for example, Steve Stanton had served as
the city manager of Largo, Florida, for 14 years. He was
incredibly effective, he was very well respected in that
position, he just received a glowing evaluation, but literally
within days of discovering that Stanton was transgender,
intended to transition from male to female, he was gone. The
city commission of Largo abruptly fired him and acknowledged
that it was doing so because of his transgender status.
Another case, a small town in Vermont hired an experienced
law officer, a police officer. Everything was going fine until
a town official discovered on a Web site that the officer was
transgender and was born female, had undergone sex reassignment
many years earlier. That information was communicated to that
officer's superiors who then shamefully, deliberately embarked
on a campaign to try and intimidate him into leaving his job
and even went so far as to endanger his physical safety by
issuing him faulty security equipment. And he was driven from
his job, and this discrimination came to light only because a
former police chief disclosed what had happened to the Vermont
Attorney General.
Now, States and localities across the country are passing
laws to address this type of discrimination. Twelve States and
the District of Columbia now have laws that protect transgender
workers. Over 100 localities have also enacted local anti-
discrimination laws. Many employers, both large and small, have
voluntarily adopted policies that prohibit discrimination
against their transgender workers.
And those are very important advances, but we need more
than a patchwork of State and local laws and employer policies.
The brutal reality is, in most places in this country, a
transgender worker who is fired or harassed for being
transgender has no legal protection. As a direct result, there
are many people in the transgender community who are forced
into chronic, persistent unemployment, poverty and
homelessness.
Existing Federal law does not prohibit workplace
discrimination against transgender employees. That includes
Title VII. As a logical matter, when a person is fired for
changing his or her sex, a court should say that is sex
discrimination, and it should be covered under Title VII. In
practice, however, there is not a single Federal Court anywhere
in the country that has held that Title VII prohibits
discrimination against transgender workers because they are
transgender. We need Congress to make clear the discrimination
against transgender people because of their gender identity is
against the law.
Thank you for your leadership on this issue. Growing up in
a small town in Texas I literally could not have imagined this
day. There are so many transgender people in our families all
across the country waiting and hoping that you will take action
to protect us.
Thank you.
Chairman Andrews. Mr. Minter, thank you very much for your
testimony.
[The statement of Mr. Mintner follows:]
Prepared Statement of Shannon Price Minter, Esq., Legal Director,
National Center for Lesbian Rights
Mr. Chairman and Members of the Subcommittee: This is truly a
historic day, and one that is deeply meaningful not just to transgender
people, but to all of our family members and loved ones as well. This
is the first time that most transgender people have had the reality of
our lives addressed by Congress. I am grateful to have this chance to
speak to you today both as an attorney who specializes in transgender
legal issues and as a transgender man.
I was born female and transitioned from female to male at the age
of thirty-five, about twelve years ago. Growing up as a transgender
young person in rural East Texas, I never would have dreamed of having
this opportunity to address our nation's legislators. I am keenly
aware, as I am sure my fellow witnesses are as well, that we speak to
you on behalf of your transgender constituents across the country,
whether it be others living in rural Texas, suburban New Jersey, or
metropolitan Minneapolis.
I am going to touch on three issues: who transgender people are;
the pervasiveness of workplace discrimination against transgender
people; and the inadequacy of current federal law to address that
discrimination.
Transgender people are individuals whose internal identification as
male or female does not match their assigned sex at birth, including
many who undertake the medical process of changing their physical
gender. Transgender people have existed throughout history and have
been part of almost every culture and community. In the United States,
transgender people come from every racial and ethnic group and live in
every part of our country. Transgender people also work in virtually
every occupation.\1\
Like other Americans, transgender people fervently wish to be able
support ourselves and our families and to have the dignity of being
treated as equal members of society. As employees, we want to be judged
based on our skills and our qualifications--on what we have to offer,
not on whether we happen to be transgender.
Many transgender people are fortunate to have support in their
workplace and are able to continue working in their chosen careers both
during and after their transition from one gender to another;
unfortunately, however, many others face some of the most blatant and
severe workplace discrimination imaginable, to a degree that is often
truly shocking. All too often, the mere disclosure that a person is
transgender and intends to undergo, or has undergone, sex-reassignment
results immediately in severe harassment or job loss. That is true even
for highly skilled employees who may have served in their position for
years.
For example, in a case that attracted national attention last year,
Steve Stanton had served as the City Manager of Largo, Florida for 14
years, longer than any other City Manager in Largo's history.
Throughout his tenure, Mr. Stanton always received excellent job
evaluations and was widely respected as one of the most effective city
managers in the country. During his last evaluation, in September,
2006, he was given a large raise in recognition of his long tenure and
accomplishments. But just seven months later, the Largo City Commission
abruptly fired Mr. Stanton after a local news article disclosed that he
was transgender and intended to transition from a man to a woman. The
Commission refused to reconsider its decision. As a result, the City of
Largo lost a valuable employee, and Stanton, who has subsequently
changed her first name to Susan and is now living as a woman, has been
unable to find another job.\2\
Unfortunately, there are many similar stories, most of which
receive little or no public attention. One such story concerns Kathleen
Culhane, a veteran who also served in the Iowa National Guard. Prior to
her transition from male to female, Ms. Culhane had worked for several
years as a research assistant at a state university in Iowa. She
informed her supervisor that she was transgender and would be
transitioning from male to female. Within weeks of that disclosure, Ms.
Culhane was told she would be fired. She applied for positions in other
departments, but no one was willing to hire a transgender person. Ms.
Culhane lost her job and was forced to move to another state to find
work, leaving behind her home of sixteen years.\3\
In another case, Anthony Barreto-Neto, an experienced and skilled
police officer, was hired by a local police department in Hardwick,
Vermont. Shortly thereafter, town officials found a website that
described Mr. Barreto-Neto as ``transsexual'' and disclosed the fact
that he had been born female and had undergone sex-reassignment several
years earlier. The town officials communicated that information to
senior police department personnel, who then subjected Mr. Barreto-Neto
to severe harassment and dangerous workplace conditions, including
issuing him faulty security equipment. In a subsequent investigation by
the Vermont Attorney General, a former police chief testified that he
was directed to make Mr. Barreto-Neto so uncomfortable that he would
leave the force. Mr. Barreto-Neto was able to settle his case; however,
the police department took the position that discrimination against a
transgender person was not prohibited by law.\4\ A few years later, the
Vermont Legislature enacted a statewide law specifically prohibiting
such discrimination.
As lawyers who specialize in this area are well aware, such stories
of discrimination are painfully common. Employees who disclose their
transgender status or who attempt to transition on the job risk being
summarily dismissed, regardless of their qualifications or prior
history.
State and local lawmakers throughout the country increasingly are
addressing this type of discrimination. Currently 12 states and the
District of Columbia have laws that specifically ban workplace
discrimination based on gender identity: California, Colorado,
Illinois, Iowa, Maine, Minnesota, New Jersey, New Mexico, Oregon, Rhode
Island, Vermont, Washington, and the District of Columbia.\5\ The first
such statewide law was passed by Minnesota in 1993; however, most have
been enacted in the past three to five years. Several other states are
considering similar laws, and earlier this month, on June 3, 2008, the
New York State Assembly passed the Gender Expression Non-Discrimination
Act by a vote of 108 to 34.\6\ More than 100 cities and counties have
enacted local non-discrimination laws protecting transgender
workers.\7\ And many of the country's employers, both large and small,
have adopted non-discrimination policies that prohibit gender identity
discrimination.\8\
Despite these advances, the current patchwork of local and state
laws is inadequate to remedy the pervasive gender identity
discrimination taking place across the country. Most transgender
employees do not live in a jurisdiction that provides them with legal
protection. In most states, a transgender worker who is fired or
harassed for being transgender has no legal recourse.
Existing federal law, including Title VII, does not adequately
protect transgender employees. As a logical matter, discrimination
against a person for changing his or her sex should be recognized as
discrimination based on sex, just as discrimination against a person
for changing his or her religion or nationality is recognized as
discrimination based on religion or nationality. Many legal scholars,
as well as women's rights and civil rights advocates, strongly support
the view that the prohibition of sex discrimination in Title VII
logically, and as a matter of principle, should prohibit transgender
discrimination. In practice, however, most courts have rejected that
view, creating a significant loophole in sex discrimination law. For
decades, starting in the 1970s, courts summarily held that Title VII
does not protect transgender people from discrimination.\9\ Too often,
those decisions not only denied protection, but spoke about transgender
people in disparaging and demeaning terms. In recent years, some
federal courts have begun to hold that, at least under some
circumstances, Title VII may protect transgender people who are
discriminated against because they do not conform to gender
stereotypes.\10\ The most notable example is the Sixth Circuit, which
thus far is the only federal appellate court to issue such a
decision.\11\ This is a welcome development, and has provided a remedy
for some transgender employees against some forms of gender identity
discrimination. For the most part, however, courts have continued to
apply Title VII narrowly to exclude transgender people.\12\ Moreover,
even the few courts, including the Sixth Circuit, that have held that
Title VII may protect transgender people against discrimination based
on gender stereotypes have stopped short of holding that Title VII
prohibits discrimination simply because a person is transgender.
Thus, it is essential that Congress make clear that discrimination
against transgender people because of their gender identity is against
the law.
Thank you for your leadership in convening this historic forum and
for the opportunity to testify. Growing up in my small Texas town, I
could not have imagined a day like this. So many transgender people and
their families around the country are waiting and watching, hoping that
Congress will take action to address this harmful discrimination and to
help ensure that transgender people have an equal opportunity to work.
endnotes
\1\ The representation of transgender people in virtually all
professions is evidenced by the broad range of occupations that have
been the subject of transgender employment discrimination actions. See,
e.g., Enriquez v. West Jersey Health Systems, 777 A.2d 365 (N.J. Ct.
App. Div. 2001) (medicine); Ulane v. Eastern Airlines, Inc., 742 F.2d
1081 (7th Cir. 1984), cert. denied, 471 U.S. 1017 (1985) (airline
industry); Broadus v. State Farm Ins. Co., 2000 WL 1585257 (W.D. Mo.
Oct. 11, 2000) (insurance industry); Mitchell v. Axcan Scandipharm,
Inc., 2006 WL 456173 (W.D. Pa. Feb. 17, 2006) (sales); Smith v. City of
Salem, 378 F.3d 566 (6th Cir. 2004) (firefighting); Barnes v. City of
Cincinnati, 401 F.3d 729 (6th Cir. 2005), cert. denied, 546 U.S. 1003
(2005) (law enforcement); Schroer v. Billington, 525 F.Supp.2d 58
(D.D.C. 2007) (terrorism research analysis).
\2\ Deborah J. Vagins, ``Working in the Shadows: Ending Employment
Discrimination for LGBT Americans,'' at 17 (American Civil Liberties
Union, Sept. 7, 2007).
\3\ Id. at 19.
\4\ Mr. Baretto-Neto was represented by Gay & Lesbian Advocates &
Defenders. For a description of his case, see http://www.glad.org/
News--Room/press73-4-23-04.html.
\5\ California (Cal. Gov't Code Sec. Sec. 12926(p), 12940, 12955,
Cal. Penal Code Sec. 422.76); Colorado (Colo. Rev. Stat. Sec. 24-34-
401(7.5)); Illinois (775 Ill. Comp. Stat. 5/1-102, 5/1-103(O-1)); Iowa
(Iowa Code Sec. 216.6); Maine (Me. Rev. Stat. Ann. tit. 5, Sec. 4552,
4553(9-C)); Minnesota (Minn. Stat. Sec. 363A.03(44)); New Jersey (N.J.
Stat. Ann. Sec. 10:5-3 et seq.); New Mexico (N.M. Stat. Ann. Sec. 28-
1-2(Q)); Oregon (Or. Rev. Stat. Sec. Sec. 175.100, 659A.030); Rhode
Island (R.I. Gen. Laws Sec. 28-5-6, R.I. Gen. Laws Sec. 11-24-
2.1(a)(8)); Vermont (Vt. Stat. Ann. tit. 1, Sec. 144); Washington
(Wash. Rev. Code Sec. 49.60.040); and the District of Columbia (D.C.
Code Ann. Sec. 2-1402.11).
\6\ A06584A, 231th Leg. (N.Y. 2008).
\7\ National Gay and Lesbian Task Force, ``Jurisdictions with
Explicitly Transgender-Inclusive Non-Discrimination Laws'' (April
2008), available at http://www.thetaskforce.org/downloads/reports/
fact--sheets/all--jurisdictions--w--pop--4--08.pdf.
\8\ Transgender Law & Policy Institute, ``Employer and Union
Policies Prohibiting Discrimination Against Transgender People,''
available at http://www.transgenderlaw.org/employer/index.htm.
\9\ See, e.g., Ulane v. Eastern Airlines, Inc., 742 F.2d 1081 (7th
Cir. 1984), cert. denied, 471 U.S. 1017 (1985) (pilot did not have a
cause of action under Title VII because, based on the plain meaning of
the word ``sex'' and the legislative history of Title VII, sex does not
include a person's transsexual status); Sommers v. Budget Marketing,
Inc., 667 F.2d 748 (8th Cir. 1982) (Title VII does not encompass
discrimination against transgender persons); Holloway v. Arthur
Andersen & Co., 566 F.2d 659 (9th Cir. 1977) (Congress did not intend
for Title VII to protect transgender employees); James v. Ranch Mart
Hardware, Inc., 881 F. Supp. 478 (D. Kan. 1995) (same); Powell v.
Read's, Inc., 436 F. Supp. 369 (D. Md. 1977) (same); Voyles v. Ralph K.
Davies Medical Center, 403 F. Supp. 456 (N.D. Cal. 1975) (same), aff'd,
570 F.2d 354 (9th Cir. 1978); Oiler v. Winn-Dixie Louisiana, 89 Fair
Empl. Prac. Cas. (BNA) 1832, 2002 WL 31098541 (E.D. La. Sept. 16, 2002)
(male grocery store clerk denied Title VII protection when fired for
wearing female clothing off the job).
\10\ Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004) (holding
that transgender firefighter who was transitioning from male to female
was discriminated under Title VII against based on failure to conform
to masculine gender stereotypes); Barnes v. City of Cincinnati, 401
F.3d 729 (6th Cir. 2005) (holding that transgender police officer who
was transitioning from male to female was discriminated against under
Title VII based on failure to conform to masculine gender stereotypes),
cert. denied, 546 U.S. 1003 (U.S. 2005); Lopez v. River Oaks Imaging &
Diagnostic Group, Inc., 542 F.Supp.2d 653 (S.D. Tex. 2008) (denying
employer's motion for summary judgment and holding that transgender
plaintiff was entitled to prove her gender stereotyping claim).
\11\ See Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004); and
Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005), cert.
denied, 546 U.S. 1003 (U.S. 2005).
\12\ See, e.g., Sweet v. Mulberry Lutheran Home, 2003 WL 21525058
(S.D. Ind. June 17, 2003) (holding that termination because of
employee's intent to change sex was not actionable as sex
discrimination under Title VII); James v. Ranch Mart Hardware, Inc.,
881 F. Supp. 478 (D. Kan. 1995) (holding that Title VII does not
prohibit discrimination against transgender people).
______
Chairman Andrews. I would like to thank each of the
witnesses for very provocative, thoughtful testimony.
We are going to try to have questions back and forth so we
can draw out some of the points that have been made.
First, I do want to introduce two things for the record.
One is a letter--without objection that will be entered--from
the Business Coalition for Workplace Fairness dealing with
these issues.
[The information follows:]
Prepared Statement of Kathleen Marvel, Senior Vice President and Chief
Diversity Officer, the Chubb Corp.
On behalf of The Chubb Corporation, one of America's leading
diversified-financial corporations, I would like to express our strong
support for extending basic job protections to transgender Americans.
We applaud the Committee for holding this hearing and appreciate the
opportunity to provide this statement for the Congressional Record.
In 1993, Chubb added sexual orientation to its non-discrimination
policy to strengthen our workplace values of fairness for our 10,000+
employees. That policy stated, ``It is our policy to provide equal
employment opportunities to employees and applicants based on job-
related qualifications and ability to perform a job, without regard to
race, sex, color, religion, age, national origin, sexual orientation or
disability.'' Gender identity, however, was not part of the policy. A
truly all-inclusive workplace remained an elusive goal.
In 2002, Chubb employees in our Gay & Lesbian Employee Network
(GLEN) began to educate themselves at the annual ``Out & Equal''
workplace summits about the issues and challenges faced by the
transgender community at work. Once educated, GLEN members presented
the case to senior management for broadening Chubb's nondiscrimination
policy to specifically include gender identity. The process was
challenging since there were no employees known to the organization to
be in need of such protection, but in 2004 the Corporation agreed to
make the necessary policy changes to be fully inclusive of transgender
employees.
These changes enable us to now state--unequivocally--that at Chubb,
we are totally committed to providing equal employment opportunities to
all employees and applicants based on job-related qualifications and
ability to perform a job without regard to race, sex, color, religion,
age, national origin, sexual orientation, gender identity or
disability.
In the years since its implementation, our policy of non-
discrimination has been embraced broadly throughout the organization,
and we believe this acceptance has had a positive impact on our
corporation's bottom line: we employ the best-qualified insurance
professionals in the financial services industry, bar none. Their
collective work ethic helped make Chubb the 180th largest diversified-
financial corporation in the U.S. for 2007. Our gay, lesbian, bisexual
and transgender employees feel that they are equally protected and
valued by the company. And it has further reinforced, for ALL of our
employees, that fairness and non-discrimination remain fundamental
tenets in our workplace.
Interestingly, although since broadening our non-discrimination
policy to include gender identity we have not had any employees
transition on the job, we have been able to provide direction to one of
our insurance customers who knew of our policy and needed advice in
order to help a transitioning employee of their own. After consulting
with our customer, we were able to connect them with several expert
transgender issues resources to provide specific best practices. Our
outreach efforts on behalf of a valued customer helped them support an
employee with dignity, fairness and respect, and in turn helped us
strengthen our relationship with the customer.
This story underscores the reason why we take particular pride in
being recognized by such organizations as Catalyst and the Human Rights
Campaign Foundation as a company that consistently treats its
employees, customers and investors alike with dignity, fairness and
respect. We are very proud to have received a 100% rating on the Human
Rights Campaign's Corporate Equality Index since 2004. Additionally we
were recognized in 2007 by DiversityInc as one of the Top 10 Companies
for Gay, Lesbian, Bisexual & Transgender Employees. We are also proud
to be an active member of the Business Coalition for Workplace
Fairness, an ever-growing group of FORTUNE 500 corporations that have
added their collective voice in support this legislation.
Enhancing our work environment to prohibit discrimination on the
basis of gender identity has not been a financial burden to Chubb. On
the contrary, we believe that our philosophy and practice of valuing
and celebrating the diversity of our workforce actually strengthens our
financial underpinnings, by encouraging the full and open participation
by all employees at every level of the organization.
Businesses that drive away talented and capable employees are
certain to lose their competitive edge, an outcome that we simply
cannot afford to accept in today's competitive global marketplace. We
believe that including gender identity protection in workplace non-
discrimination legislation will have a positive impact on our country's
ability to compete on the world stage, by extending this protection in
the majority of states where employees can still be turned down for a
job, or fired from a job, simply because they happen to be gay,
lesbian, bisexual or transgender.
It has long been the law of the land that employment discrimination
is unacceptable based on race, gender, religion, ethnic origin or other
non-performance-related considerations. At a time when we are
considering adding sexual orientation to the list, it is also time to
include gender identity.
Diversity is about recognizing, respecting and valuing differences.
We realize the challenges involved in integrating and valuing diversity
in its many shapes, and are committed to fostering an environment in
which all employees can realize their fullest potential. We believe
that Chubb benefits from the competitive advantage such diversity
provides. We pride ourselves on being a great place to work, as
evidenced by the many workplace awards we have received. That great
place to work includes our gay, lesbian, bisexual and transgender
employees, and is why Chubb strongly supports the inclusion of gender
identity in any workplace fairness legislation being considered by the
Committee. Such legislation would be consistent with our corporate
principles of treating all employees with fairness and respect.
I thank Representative Andrews, a fellow New Jerseyan, and the
Committee for its leadership on this critical workplace issue, and am
pleased to submit this Statement for the Record.
______
------
[The statement of Ms. Lunaris follows:]
Prepared Statement of Alynna E. Lunaris
Mr. Chairman Andrews, and members of the Subcommittee, thank you
for the opportunity to submit written testimony as a part of this
hearing. I am Alynna Lunaris.
For the past two years, I have been living full-time as a female,
after thirty six years of life as a male. For the last 20 years, I have
looked forward to transitioning from the male body to which I was born
into the female that I always knew I really was. While I am very happy
with my decision to transition, the process has been full of
challenges. These challenges do not entail just the physical,
psychological and financial cost that one would anticipate incurring;
they also include the particularly difficult obstacles relating to
employment. In fact, after being terminated from a terrific position as
a Humane Law Enforcement Officer with the Washington Humane Society
(WHS) I have found it impossible to find employment. I have been
searching for over a year and despite many interviews, and follow-up
interviews, I have not yet been able to find a position.
My employment with the Washington Humane Society (a private not-
for-profit law enforcement agency that was charted in 1870 by Congress
to enforce the District of Columbia's anti-cruelty to animal laws)
ended on June 28, 2007. In addition to their private law enforcement
activities, WHS also holds a multi-million dollar comprehensive animal
care, control, and disease prevention contract with the District of
Columbia Department of Health. During my time with WHS, I worked in
both their private and contracted functions to make the District of
Columbia a safer and more hospitable place for animals and people.
I was hired by WHS in January of 2005, as a front desk assistant at
the District of Columbia Animal Shelter. At the time, WHS human
resources, their executive director, and upper management were all
aware of my transgender status, and of the possibility that I would
begin my transition while employed under their contract with the
District. At the time, management was open and even seemed to be
supportive of my anticipated transition.
After approximately six months with WHS, I was promoted from front
desk assistant to a field position as an Animal Control Officer (ACO).
In that position, I was responsible for enforcing the District's Animal
Control Laws and zoonotic disease regulations, as well as assisting
local and federal law enforcement agencies with animal related issues
and responding to animal related emergencies such as animals hit by
cars and animal bite cases. I held this position for a year as a male
and five months as a female. My excellent performance as a male in this
position is well documented by letters of commendation from District
residents, an award from the Metropolitan Washington Council of
Governments (MWCOG), and an outstanding performance evaluation. While
working as a male in this position, management and my colleagues were
aware of my initial steps to become a female (not very easy to hide the
changes, as you might imagine), and many were accepting. Some, however,
made it clear that they had strong negative feelings about transgender
people through their comments and actions.
In June of 2006, I began hormone therapy, facial hair removal and
voice therapy. In September of 2006, I took vacation from my post as
ACO. I informed WHS Human Resources and management that when I
returned, I would be returning as a female. When I returned, I
submitted a court order changing my name. I also submitted a copy of my
new driver's license, which now held a female designation.
Within two weeks of my return I started experiencing discrimination
from WHS management. The first incident of discrimination was the loss
of an anticipated promotion to Field Services Supervisor. Initially I
was asked by the former Field Services Supervisor, who was taking a
different position in the company, to apply for the position. I began
work on my resume and application for submission for the position only
to be told by the same supervisor that an application from me would not
be accepted.
Over the next five months I was given multiple disciplinary write-
ups. In some cases the incidents in question involved other officers;
yet, I was the only one cited for the incident. In other instances, I
was written up for policies that were not in existence at the time of
the incident and WHS refused to provide to me or other officers with
written evidence of the change in policy that resulted in my write-up.
In every incident, the write-up was unfounded, poorly investigated, and
initiated by the same two managers.
The situation became so intolerable that WHS Human Resources made
the decision to transfer me to a position in the private law
enforcement department as a Humane Law Enforcement Officer (HLEO). This
position took me out of the chain of command of the two managers who
initiated the disciplinary actions.
Interestingly, while I was told that this was a lateral move, not a
promotion, the new position did come with a pay raise and five months
of back pay for the time between my outstanding performance review
while presenting as a male, and the months of disciplinary write-ups
for my performance as a female.
I worked as a HLEO for approximately six months, from mid-January
of 2007 to the end of June, 2007. There were no further incidents until
the Executive Director resigned and one of the managers who had been
supervising me during my transition and while I was an Animal Control
Officer was promoted to Interim Executive Director. Upon her promotion
to this position, the harassment, discrimination, and fabricated write-
ups began once again. Within three months of her promotion I was fired
from my position for gross negligence. The final incident was again
unfounded and poorly investigated.
The District of Columbia Office of Human Rights is currently
investigating this case for wrongful termination based on transgender
discrimination. I would like to commend the District of Columbia for
amending their non-discrimination statement to include gender identity
or expression through the issuance of Mayor's Order 2006-151. While the
discrimination and resulting termination that I experienced was
devastating, I am truly grateful that I was employed in a jurisdiction
that takes these matters seriously.
Although this order does not prevent discrimination from occurring,
I take great comfort in the fact that the District is fully committed
to investigating claims of transgender discrimination and is working to
ensure that the transgender men and women who work and reside in the
District of Columbia are fully protected and have the same
opportunities available to them as other men and women. It is my hope
that the Federal Government will follow the good example set forth by
the District of Columbia and many other jurisdictions by including
transgender people in the national non-discrimination language.
Since I have been terminated from WHS, I have had many promising
interviews. None of which have resulted in a job offer. I have applied
with and been turned down for Animal Control positions throughout the
National Capitol Region. I have applied for work in veterinary clinics,
animal boarding facilities, and various types of office and retail
positions. Every potential employer I talk to seems excited about my
qualifications and the unique set of skills and abilities I bring to
the table. I'm sure you can imagine how frustrating and financially
devastating it is to be unemployed for so long. While I do not know the
reasons for being turned down for these jobs, there's always the voice
in the back of my head that tells me it is because of my experiences
with my previous employer and because of my status as a transgender
woman.
As an illustration for the problems facing a transgendered
individual--I have recently applied for a position with the Federal
government. There is a question on the Declaration for Federal
Employment form (OMB No. 3206-0182) that has caused me great difficulty
in answering. As most of you distinguished members know, not answering
or answering incorrectly any question on a Federal application is cause
for either not being hired or worse being terminated after employment
for cause.
Imagine yourselves in the position I find myself in and think how
you might correctly answer this question.
It reads, ``Are you a male born after December 31, 1959?''
I know that this question is intended to determine selective
service registration. It does however, unintentionally force me to
``out myself'' to a potential employer. Additionally, I am in a
quandary as to the correct way to answer the question.
According to my birth certificate, I am a male born after December
31, 1959, and I am registered for the Selective Service; however, my
name and my state issued driver's license identify me as a female.
Trying to answer this question truthfully, but in a way that will
protect myself from the possibility of further discrimination has been
difficult. In the end, I believe that my only option is to be fully
honest and submit an explanation of why, while was I'm a male born
after December 31, 1959, I am one of only a few women in the country
who are registered for the Selective Service.
I respectfully ask that this subcommittee consider the following:
Review the federal employment forms and investigate the
possibility of rewriting them with gender neutral language, and
Explore the possibility of including gender identity in
the national non-discrimination language.
Thank you for convening this hearing to discuss the important issue
of transgender equality in the workplace. I greatly appreciate the
opportunity to submit testimony on this issue.
______
[Article from the Los Angeles Times, dated November 19,
2000, follows:]
[From the Los Angeles Times, Sunday November 19, 2000]
Through the Gender Labyrinth
How a bright boy with a penchant for tinkering grew up to be one of the
top women in her high-tech field
By Michael A. Hiltzik
Late in 1998, a young researcher delving into the secret history of
a 30-year-old supercomputer project at IBM published an appeal for
help. As Mark Smotherman explained in an Internet posting, he knew that
the project had pioneered several supercomputing technologies. But
beyond that, the trail was cold. IBM itself appeared to have lost all
record of the work, as if having experienced a corporate lobotomy.
Published details were sketchy and its chronology full of holes. He had
been unable to find anyone with full knowledge of what had once been
called ``Project Y.''
Within a few days, a cryptic e-mail arrived at Smotherman's Clemson
University office in South Carolina. The sender was Lynn Conway, one of
the most distinguished American women in computer science. She seemed
not only to know the entire history of Project Y, but to possess reams
of material about it.
Over the next few weeks, Conway helped Smotherman fill in many of
the gaps, but her knowledge presented him with another mystery: How did
she know? There was no mention of her name in any of the team rosters.
Nor was any association with IBM mentioned in her published resume or
in the numerous articles about her in technical journals. When he
probed, she would reply only that she had worked at the company under a
different name--and her tone made it clear there was no point in asking
further.
What Smotherman could not know was that his appeal for strictly
technical information had presented Lynn Conway with a deeply personal
dilemma. She was eager for the story of IBM's project to emerge and for
her own role in the work to be celebrated, not suppressed. But she knew
that could not happen without opening a door on her past she had kept
locked for more than 30 years.
Only after agonizing for weeks did Conway telephone Smotherman and
unburden herself of an extraordinary story.
``You see,'' she began, ``when I was at IBM, I was a boy.''
Nature directs living things into a vast maze of sexual diversity
from which our culture provides only two acceptable exits: male and
female. Gender is the most fundamental component of our self-image, the
foundation of the personality we present to everyone around us. Think
of the very first question one asks about a newborn: ``Is it a boy or a
girl?''
Today the intricacies of gender have worked their way into
cultural, scientific, even political debate. Why shouldn't girls
compete against boys in math, or on the playground? Would little boys
be less beastly if society discouraged rough play? Where, in fact, does
our gender identity reside: In our physique? Our brain? Or somewhere
deeper, in our soul?
That society has begun to grapple openly with these issues suggests
how profoundly absorbing the subject is. ``There's a little bit of each
gender in each person, so there's something intriguing about what
exists on the other side,'' says George Brown, a psychiatrist at the
Veterans Administration Medical Center in Johnson City, Tenn. ``But
there's also a threat that in exploring the subject I might find out
something I feel is very dangerous.'' This implicit threat may explain
why, over the past 30 years, science has learned less about the
mysteries of gender than about the origins of the universe.
Transsexualism, the most extreme expression of gender discordance,
may be our last taboo. At least 40,000 Americans have undertaken the
surgery and therapy to make the transition from male to female and as
many as 20,000 more may have gone from female to male. But so strong is
the stigma, so blatant the discrimination, that most keep the change a
secret by shedding their old lives, jobs and friends along with their
old gender. Lynn Conway, among the first Americans to undergo a sex
change, came to give the secret life into which it forced her a name:
``stealth.''
Today Conway lives in a home outside Ann Arbor, where she is
professor of computer science emerita at the University of Michigan.
Slim and tall, with light brown hair, long, slender fingers and an
engineer's unsentimental directness, she says she knew that the
operation that changed her gender would consign her to a life of
hardship. And she knew it would be worth it. Peering out over the 24
acres of meadow, marsh and woodland she shares with her boyfriend of 13
years in a rural district of lower Michigan, she recalls the risks she
confronted three decades ago. ``The prediction by everyone then was
that what was happening to me would be a disaster,'' she says. ``But
sometimes in your gut, you know something is right.''
A child, whom for reasons of family privacy we shall call Robert
Sanders, was born in Mt. Vernon, N.Y., to a schoolteacher and a
chemical engineer who divorced when he was 7. A round-faced little boy
with direct blue eyes, Robert by the age of 4 was giving off signals--
faint to outsiders but alarming to his parents--that he was not a
normal male child. He shunned the other boys and preferred the sedate
play of girls in groups. One day, walking through a clothing store in
Scarsdale with his mother, he stopped, transfixed by a girl's cotton
print dress, one with puffy sleeves like his little friend Janet wore.
``Can I have one like that?''
He had just gotten out the words when he felt as though every eye
in the store was fixed on him. ``No, you may not have that dress,'' his
mother snapped. ``You are not a girl!'' It was obvious even to his 4-
year-old ears that he had committed some terrible blunder, but he did
not know what.
From that point on his parents watched carefully for any signs of
effeminacy, which they mercilessly exterminated. They cut his hair back
almost to the scalp, leaving just enough in the front to be combed
back. His mother stopped cuddling him, barely touched him anymore, as
though fearing that her previous expressions of maternal love had
somehow softened him. He ended up feeling that he was being watched all
the time.
The vigilance ebbed slightly after his parents' divorce. Robert's
mother was so busy teaching that he and his younger brother, Blair,
were left to their own devices after school. The brothers shared an
unquenchable interest in nature and science. The house was full of the
flotsam and jetsam of their mother's schoolroom assignments--scrap
lumber, galvanized tin, all kinds of junk that became the raw material
for countless backyard projects. Whatever was not on hand they
scrounged during weekend forays to the public dump.
When school ended for the summer, the projects started, fueled by
Robert's precocious talent for design and construction.
He hand-built a hi-fi system, and then a wood-framed enlarger for
the brothers' hobby of photography. In high school he resolved to build
a radio-telescope. It was 1952, and searching the skies for radio waves
emitted by cosmic bodies--now an indispensable tool of modern
astronomy--barely ranked as an authentic scientific application.
Nevertheless, Robert studied nonstop, drafted a design, acquired the
necessary lumber and aluminum sheeting and, with Blair's help, erected
in the backyard a working contraption, 12 feet in diameter. ``Robert
had this very strong personality trait of studying things well, coming
up with a plan and carrying the plan through to completion,'' Blair
says. ``There's no stopping a person who continually does that.''
What Blair did not comprehend was that his older brother's
determination shrouded--or perhaps counterbalanced--deep inner turmoil.
With puberty Robert's unremitting feelings of girlishness boiled over,
setting up a violent conflict with the inexorable masculinization of
his body. He did everything he could to forestall what was happening--
surreptitiously shaving his legs, shaping his eyebrows, pilfering
women's clothes from relatives' homes. But these pitiable cosmetic
measures only sharpened his internal conflict.
In 1950s Westchester County, sex remained firmly outside the bounds
of polite discussion, even within families. There was no one he could
talk to for support, encouragement or explanation. His mother glared at
any signs of incipient effeminacy but never raised the issue in
conversation. The denial within Robert's family was fully reflected in
society at large.
The prevailing view of transsexualism as a psychological
disturbance is both the cause and the result of the poverty of
scientific research into the foundation of gender identification. What
is known is that there are four broad and somewhat related elements.
These can be categorized as genetic, hormonal, physical and
neurological. In most cases all four are in sync. A female child
inherits one X chromosome from each parent and develops, under the
influence of the ``female'' hormone estrogen, secondary sex
characteristics such as breasts and the ability to ovulate. This child
has a vagina, uterus and ovaries, and considers herself psychologically
a girl. A male child inherits one X and one Y chromosome and develops
facial hair and greater muscle mass under the influence of
testosterone. This child has a penis and testes and psychologically
considers himself a boy. But it sometimes happens that nature, usually
so efficient at managing the cascade of biological events that produces
a newborn, leaves one or more of these elements out of sync. The Y
chromosome might lack a gene allowing the body to respond to the male
hormone, in which case the result is an XY female--outwardly
indistinguishable from a normal female. The reproductive system is
susceptible to a wide range of defects that come under the category of
``intersex''--the presence of biological elements of both genders. In a
surprisingly high number of births--as many as one in 500, according to
pediatric surgeons--a child is born with anomalous genitalia that in
the most severe cases leave its gender hard to determine.
In the rarest cases the sole element out of sync is the
neurological. The cause and, therefore, the remedy for the mental
conviction that one is a whole being trapped in a perfect, but
profoundly inappropriate, body is a mystery buried deep in the
labyrinth of the mind.
Robert could do little to explore this maze until he left home at
17 to study physics at MIT. University life was liberating. He thrived
in the rarefied competition of 900 of the country's brightest high
school graduates, finishing his freshman year in the top 2% of his
class. For the first couple of years he kept one foot planted uneasily
in the ``normal'' life of a young heterosexual, going out occasionally
with groups of male and female friends. On these dates, ``he was as
normal as any innocent kid,'' recalls Dorothy Hahn, who married
Robert's closest MIT friend, Karl. ``He was awkward with girls, but not
excessively so.''
But release from his mother's repressive scrutiny also gave him the
space to air what he sensed was his truer self. He gave his
increasingly assertive female persona the name Lynn--a derivative of
his middle name--and clandestinely purchased women's clothing from the
Sears catalog. When he learned that a group of acquaintances was
burgling pharmacies for narcotics, he did a characteristically thorough
survey of the endocrinological literature and presented them with an
order, crafted with a physician's precision, for injectable estrogen.
The hormones did their job. Robert's skin and features softened, his
body hair thinned, he began to develop breasts. Gingerly, he began
coming out to a few close friends, then wearing women's clothing in
public, where his androgynous femininity attracted male attention. A
photographic self-portrait from this period shows a waif-like ``Lynn''
in a modest black dress, hair tucked behind one ear, bare legs shod in
simple pumps. Some of his new male friends became lovers, yet Robert
never saw these as homosexual relationships, for although his partners
knew he was male, they regarded him not as a boy but as a girl, as
``Lynn.''
This lonely experimentation anticipated what has since become the
professional standard in the treatment of transsexuals--the ``real life
experience,'' in which the medical and legal systems require patients
to live for a year in their ``psychological gender'' before being
judged ready for sex-change surgery. Without professional support,
however, Robert's double life--he still attended class as a man--only
intensified his profound psychic confusion. By his senior year the
strain was starting to tell. His female identity and his black-market
hormones were increasingly at war with his body's determination to
create the brow ridge and other features that telegraph masculinity to
others on a subconscious level.
He started drinking heavily, self-medicating his psyche with buck-
a-bottle fortified wine the way he self-medicated his body with
estrogen. He expressed abhorrence of his physique and talked about
castrating himself to arrest his body's relentless output of
testosterone, going so far as to investigate how to create a germfree
environment to undertake the surgery. Karl Hahn, who had transferred to
a premedical program at Boston University, was sufficiently alarmed
that he found Robert a psychologist.
The man Karl had in mind was a professor at the medical school who
reputedly knew something about transsexuality and the available
options. (News of Christine Jorgensen's Danish sex-change operation had
broken not long before.) At the very least, Karl reasoned, this would
provide Robert with a professional shoulder to lean on, someone to
assure him that he wasn't going insane, that he need not grapple with
his bewildering condition in hopeless isolation.
The consultation began auspiciously. Robert described his feelings
of sexual disjunction as the doctor listened tolerantly. Then,
abruptly, with a serene detachment that gave his words a horrible
finality, he punctured Robert's hopes.
``Unfortunately, there isn't anything you can do to become a
woman,'' he said. Crisply he outlined the stark choices. Robert could
cease the hormone-taking and resolve to end this phase of sexual
experimentation on his own, or the state of Massachusetts would do it
for him, by institutionalizing him as a sexual deviant.
``But I've heard about these operations,'' Robert protested. ``I
thought you would tell me where to go to get them.''
``Those operations don't make you into a woman,'' came the reply.
``They just make you into a freak.''
Robert hit bottom. He flunked out of MIT. On what was to have been
his graduation day he was in San Francisco, living on the fringes of
the gay community, still desperately searching for where he fit. But he
found no answers there, because he did not see himself as a gay man
attracted to other men, but rather as a woman attracted to men--if only
he could rectify nature's dirty trick.
After his hormone supply ran out the following winter, he ended up
back home, working days as a repair technician at a hearing-aid
company. With Blair away at college, Robert and his mother occupied the
house alone, coexisting uneasily in mutual avoidance, rarely speaking,
rarely even passing through the same room, lest the slightest physical
encounter remind them of the unaddressed issues between them. Having
failed to find a community that would have him, Robert felt degraded
and humiliated. The silence of the house settled on him like a
reproach.
Again, it was intellectual restlessness that stirred him from his
torpor. The deadening busywork of hearing-aid repair could not keep him
for long, so in 1961 he enrolled at Columbia University. There he once
again excelled, earning bachelor's and master's degrees in electrical
engineering after only two years. More important, his sterling work
landed him a job offer from Herb Schorr, a Columbia instructor who was
also a research executive at IBM.
Schorr's secret ``Project Y'' team was engaged in designing the
world's fastest supercomputer. Soon to be renamed ACS, for ``Advanced
Computing System,'' the project had the special status of being a pet
of IBM's chairman, the imperious Thomas J. Watson Jr., who was irked
that his company had fallen behind its rivals in its efforts to reach
and hold this prestigious beachhead.
As elite and insular as the Manhattan Project, ACS was shortly
relocated to Menlo Park, Calif., where the team of 200 engineers
occupied its own building on Sand Hill Road--a stretch of highway
famous today as the center of Silicon Valley's venture capital
community. For Robert the sheer cerebral bravado of the group was a
revelation. Energized by the pioneering work taking place around him,
one day he experienced a flash of insight that at a stroke solved one
of the team's hardest problems.
The issue, vastly simplified, was how to allow the machine to
execute more than one instruction--say, adding, multiplying, or
comparing two numbers--at a time. A computer can handle several
instructions at once if they are independent--say, if two instructions
involve adding two unrelated pairs of numbers. But often one
instruction cannot be executed until another is completed--for example
the addition of two numbers, one of which is the sum of two others
summed by a prior instruction. The trick is to figure out which
instructions can be jumped ahead in line.
Robert's insight, which became known as ``dynamic instruction
scheduling,'' or DIS, was a way of constantly analyzing a string of
instructions and ordering them efficiently while keeping the number of
transistors performing these logical tests--still, in the mid-1960s,
extremely expensive--to a minimum. Within days the team had
incorporated DIS into the ACS architecture. Over the years it would
filter into generations of high-performance, so-called ``superscalar,''
computers.
Yet as he reached this pinnacle of professional achievement
Robert's personal life was coming apart. For he had not moved to
California alone.
During the summer between Columbia terms Robert had befriended a
co-worker at the hearing-aid company named Sue. (Her name has been
changed.) She was a pretty brunet from a Catholic family working to
raise tuition for nursing school. When school resumed that fall they
continued meeting socially in the city. They took walks in the park and
enjoyed casual lunches, forging a relationship that the inexperienced
Robert, oblivious to Sue's real feelings, considered platonic. One
night after one of their non-date ``dates,'' Sue got affectionate and
Robert, despite himself, got aroused. The next thing they knew, Sue was
pregnant. For months Robert fended off Sue's insistence that they
marry, but finally gave in. ``I felt like it was a trap,'' Lynn says.
``But the fact there was going to be a baby seemed like a miracle. I
really looked forward to it. It was, like, `Robert's getting trapped,
but Lynn gets to have a baby.' I didn't realize the implications.''
To friends aware of Robert's psychological struggle, his marriage
suggested that he had decided to surrender to living with a permanent
dichotomy in his sexual being. For a while that might have been true,
as Robert immersed himself in the mundane demands of married life.
Their daughter Kelly was born in February 1964. (The daughters' names
have been changed.) Amid the excitement of his new work and the daily
routine of raising a family on his $15,000 salary, the conflicts of
gender seemed to recede.
Any personality quirks he did display melted into the
eccentricities of a team of gifted engineers engaged in teaching a
room-sized contrivance of transistors and wiring how to cogitate.
Robert ``was always somewhat strange, but all these guys were
strange,'' recalls Herb Schorr, chuckling. ``My nickname was `The
Zookeeper.' ``Erudition in this group ran deep rather than wide; they
could debug the circuits of a digital machine from deep within its
logic structure, but of the outside world they were as innocent as
monks. ``When these guys went out for beers in the evening, they would
sit and talk about technical things, not sexual things,'' Schorr says.
No one seemed to notice even a hint of effeminacy in Robert's manner;
if anything he had a reputation of being ``macho,'' an aficionado of
high-speed motorcycle riding, fit enough to easily handle hikes on
social outings to Mt. Whitney or Yosemite National Park that left his
colleagues winded.
Meanwhile, the medical establishment was finally starting to
acknowledge gender identity issues. In his 1966 book ``The Transsexual
Phenomenon,'' Harry Benjamin, a prominent New York endocrinologist, not
only gave the syndrome a name but also chided his peers for their
ignorance: ``Even at present, any attempt to treat these patients * * *
in the direction of their wishes--that is to say `change of sex'--is
often met * * * with arrogant rejection and/or condemnation.'' Benjamin
wrote of patients he had treated with hormones and steered toward
surgery. Robert, however, reacted to this glimmer of professional
understanding not with relief but despondency.
As physical masculinization was catching up to him, his marriage to
Sue was faltering under the pressure of mutual frustration. Their
sexual relations had been rare and unsatisfying, although not
nonexistent: A second girl, Tracy, was born in 1966.
He was 28, already raising a family, manacled so firmly into the
role of father, husband and man that he felt it would take a Houdini's
skills to extricate himself.
The motorcycle rides became more breakneck, the rock climbing more
adventurous. At first the fear was distracting. But implicit in the
danger-seeking was self-destructiveness, a subconscious hope that an
accident might bring his inner guilt and turmoil to an end. Deliverance
never came.
On a drive home from a dinner party one evening, he pulled to the
side of the road, overcome by feelings of alienation. Breaking down in
tears he blurted: ``I need to be a woman.'' It was the first time Sue
had heard her husband put his feelings of disaffection into words. But
that did not make them easier to talk about. The isolation only seemed
to increase. Brooding alone one night in 1967 as Sue and the children
slept, he broke down again. Weeping uncontrollably, he dug out a Colt
.45 automatic pistol he had used for target practice and placed it to
his head. He was holding it when Sue, awakened by the wailing and
sobbing coming from the next room, appeared at the door, frozen in
shock. The next thing Robert knew, the gun was on the table and Sue was
assuring him that they would do anything they could to relieve his
torment.
With Sue's consent, Robert contacted Benjamin, then in his 80s and
on the eve of retirement. Benjamin agreed to accept him as one of his
last patients. Under Benjamin's care, Robert resumed estrogen therapy
and prepared for an operation that would remove the physical signs of
his maleness and give him female genitalia, the ``change of sex'' he so
ardently desired. The operation would prove to be the easy part.
Robert had visualized a nearly seamless transition from male to
female. At IBM he would have his supervisors change his records so that
he was no longer Robert, but Lynn, and he would transfer to another lab
to start afresh. At home, following the separation and divorce he knew
were unavoidable, he would simply visit as ``Aunt Lynn''; at 2 and 4
the children should be young enough to barely register the change. But
problems surfaced immediately. At work, his supervisor, an engineer
named Don Rozenberg, recognized instinctively that IBM possessed
exactly the wrong culture to indulge Robert's unprecedented proposal.
``It was still white shirts, blue serge suits and wingtip shoes,''
Rozenberg says. ``This simply wasn't the IBM image.''
Indeed, IBM corporate management, unable to see how Robert could
keep his past secret from his co-workers, feared disruption. ``The
decision was made,'' Rozenberg recalls, ``to quietly move him out of
the company.'' For Robert the loss of his job could not have come at a
worse time. His sex reassignment surgery, as it was formally known, was
scheduled to take place in a few months. It would cost about $4,000--an
enormous sum in 1968--not including several thousand dollars in
ancillary costs: electrolysis, counseling, hormone therapy. Beyond the
financial implications, the stigma of banishment from one of the
world's most respected corporations fell upon him like an
excommunication.
The few friends and colleagues Robert told of his medical situation
identified with Sue, berating him for misleading her and exposing his
young family to shame and disgrace. Nevertheless, Robert felt he had to
go through with the surgery; it was change or die. In November 1968 he
boarded a PSA plane for San Diego, then a bus to the Mexican border and
a taxi through Tijuana to the medical clinic of Dr. Jose Jesus Barbosa,
a plastic surgeon with an elite practice among affluent Americans.
Barbosa also had experience performing the so-called penile inversion
procedure, in which the sensitive skin of the penis is used to
construct a vaginal canal. In a 4 1/2-hour operation Barbosa
transformed Robert's genitalia into those of a woman, fully sensitive
and even capable of orgasm.
But the surgery failed to address another issue. Under pressure
from family and friends who saw Robert's choice as something depraved,
Sue wavered about letting ``Aunt Lynn'' stay in the girls' lives. Her
doubts grew when, after Robert left IBM, the family spent three months
on welfare. The troupe of county social workers thus introduced into
their lives were openly appalled at Robert's decision. Sue, worried
that the children might be taken from her, finally barred the girls'
father from their lives on threat of obtaining a court order.
Lynn, now living as a woman, did not underestimate the threat. An
encounter with the law would mean public exposure and the undoing of
all her efforts to start life over. So she capitulated. Sue granted her
a final visit with the children in late January 1969. Dressed as a man
for the last time in her life, Lynn spent a few hours watching her
towheaded toddlers chase their shadows across the playground of a Palo
Alto park and tried to stifle the flood of family memories that washed
over her, such as the camping trips on which Robert would hike
Yosemite's trails with little Kelly strapped into a carrier on his
back.
When the setting sun signaled that the afternoon was drawing to an
end, Lynn called to them, enveloped each girl in hugs, and tried
casually to deflect their questions about why Daddy had to leave so
soon and where he was going. Finally, her heart breaking, she walked
away. She would not see either of them again for 14 years.
As the '60s wound down, the peninsula stretching from San Jose to
San Francisco was undergoing a transformation. The orchards blanketing
its rolling ridges were falling under the bulldozer, peach trees making
way for low-slung industrial complexes. Although it would be several
years before a local newspaperman coined the term ``Silicon Valley,''
the region's growing electronics industry already evinced an unflagging
demand for electrical engineers.
After the operation, Lynn had moved ``Robert'' out forever. She had
her surname legally changed to Conway, after the dynamic heroine of a
favorite Helen MacInnes adventure novel, and began life anew.
It was not easy. For one thing her medical history proved a
formidable obstacle to employment. Firm after firm made tentative job
offers, only to change their minds as soon as she disclosed her
condition on medical questionnaires. A local RCA research lab,
intrigued by her skills but nervous about her history, offered her a
position on condition she pass a psychiatric examination. Years later
Lynn produced a copy of the psychiatrist's report from her meticulous
files: two stapled pages, with the faded, grainy quality that bespeaks
repeated photocopying: ``Lynn Conway is a 31-year old transsexual * * *
articulate, composed, attractive, and neatly attired * * * comfortable
and optimistic about her life * * * no indication of any abnormal
mental trends * * * very superior intellectual capacity * * * [nothing]
that would preclude her appropriateness for employment.''
RCA withdrew the offer.
Eventually she hooked up with a small company desperate for
experienced programmers. That job led to one at Memorex, the recording
equipment company, which had decided to plunge into the computer
manufacturing business and needed an experienced designer. Her
reputation grew, and in 1972 she found herself weighing the most
intriguing offer of her career.
The offer had come from a new electronics lab established by Xerox
Corp. in an industrial park adjacent to Stanford University. Xerox,
anxious that the emerging technology of digital computing might render
obsolete its monopoly in office copying, had hired a few score of the
smartest young engineers and scientists it could find, placed them in a
California glade as far from its Connecticut headquarters as geography
allowed and instructed them to follow their imaginations. The Palo Alto
Research Center, or PARC, would eventually oblige by inventing the
personal computer, the laser printer, Windows-style computer displays
and much more in a legendary burst of innovation.
When Lynn joined PARC in 1973, much of this work was underway. The
lab's revolutionary personal computer, the Alto, was already
established as an indispensable office tool, each one linked to scores
of others via the lab's ingenious data network known as Ethernet. But
her own work would follow a slightly different path.
One of PARC's outside consultants, Caltech engineering professor
Carver Mead, had proclaimed a revolutionary technical advance in
computing. By imprinting ever more miniature circuits on silicon
wafers, scientists had turned the traditional axioms of computer design
on their heads. Computers were made of devices (transistors) and wires
(their connections). Historically the transistors were expensive and
the wires cheap, which dictated not only the architecture of the
computer but the uses to which it was put--largely sequential,
arithmetical computation. But silicon reversed the costs. Transistors,
printed on layers of silicon, became cheap, while the infinitesimal
connections became the cost bottlenecks. Mead foresaw that the
difference would require a new kind of design but would open the
possibility of nonarithmetic computation. Computers, Mead wrote, would
no longer be big machines, useful only for crunching numbers, but tiny
ones ``deep down inside our telephone, or our washing machine, or our
car.''
Lynn was among the few engineers at PARC to buy into Mead's
dramatic rethinking of computing's potential. To his crystalline
intuition she contributed the hands-on engineering experience and deep
understanding of computer architecture she had gained at IBM and
Memorex. (``I had never designed a computer,'' Mead says. ``She had.'')
She also contributed the concept of design rules for the new
technology of ``very large-scale integrated circuits'' (or, in computer
shorthand, VLSI). These were principles that could be applied to almost
any particular VLSI design, the way one can use the same-sized bricks
to build an infinite variety of walls. Lynn and Carver Mead codified
their work in a textbook that was issued in 1979 as ``Introduction to
VLSI Systems'' or, as it became known to a generation of engineering
students, ``Mead-Conway.''
Mead was already a national figure in engineering, but the book
cemented Lynn's reputation. Even before its formal publication she had
begun proselytizing about VLSI at universities across the country,
including a semester spent teaching at none other than MIT (where she
kept her previous matriculation a secret). ``It really did change the
view the technical world had of the potential of silicon,'' Mead says.
This set the stage for a genuine computer revolution and the ultimate
realization of VLSI principles: the Pentium chip, which today powers
millions of desktop computers.
In the broadest sense, the intellectual energy of Silicon Valley
mirrored Lynn's own flowering, which had begun with her operation. Her
mind and body finally synchronized, she felt as though she had been
reborn as a new emotional being. ``I was experiencing a complete and
profound new internal and external reality,'' she says, ``going through
what amounted to a second puberty.''
Her social life blossomed. She frequented singles bars, sampled the
novel technology of computer dating, stayed out dancing and socializing
into the small hours. A photograph from the period shows her nestled in
the driver's seat of her new red Datsun Z-car in a miniskirt and purple
blouse, the prototypical single professional. She carried on an active
sex life and, like any woman in her 30s, contemplated love and
marriage.
But she was not like any other woman, and her expectations
gradually faded. She got close enough to a number of boyfriends to
share her past with them. At that point the relationships typically
stalled out. ``I backed off, thinking I would never find anybody,'' she
says. ``I felt good about myself, but I was also thinking that someone
might not want to marry someone like me.''
Such episodes reminded her of the ever-present danger of exposure.
For the most part she kept the truth behind a shroud. At PARC, a place
where your academic credentials were as much a part of your identity as
the music you listened to or the books you read, she managed never to
let on that she had attended MIT and worked on a pioneering
supercomputer at IBM. No one ever probed too deeply: It was as if she
emitted some imperceptible signal telling colleagues that there were
places in her past where one did not go.
Paul Losleben, a computer engineer who worked with her in a 1980s
government program, recalls hiking with her one afternoon in the Palo
Alto foothills. ``I came away just brimming with new ideas without
being really sure where they came from,'' he says. ``I was just
overwhelmed by her intelligence, her creativity, her grasp of topic.''
Only later did he reflect on how little she had given up of herself.
``It was as though she was a totally professional person,'' Losleben
recalls, ``without any personal side.''
For all that, through the '70s and '80s Lynn detected hints that
social attitudes toward transsexuality were changing. In 1983, when
Lynn was recruited to head a supercomputer program at the Defense
Department's Advanced Research Projects Agency, or DARPA, she sailed
through her FBI background check so easily that she became convinced
that the Pentagon must have already encountered a transsexual or two in
its work force.
Transsexualism may not have achieved mainstream acceptance, but at
least it was no longer universally viewed as a transgression against
nature. For one thing, there was more public awareness of the
condition. Eugene Biber, an American plastic surgeon, had performed his
first sex-change operation at his clinic in Trinidad, Colo., in 1969.
(``Then the grapevine started,'' says Biber, who has since performed
more than 4,500 operations.) Meanwhile, Harry Benjamin's teachings on
transsexualism had spread. Stanford University established a program
studying the condition, lending transsexuals valuable credibility. From
time to time a prominent transsexual was ``outed''--in 1976 it was the
tennis player Renee Richards--and to the extent she managed to come
through the attendant derision with her dignity intact, transsexualism
shed a bit more of its eccentricity. By the late 1970s an estimated
1,000 Americans were undergoing the surgery every year.
Lynn had to forge this path herself. Her mother and father died in
the 1970s, still refusing to accept Robert's transition. But by then
she had already reconnected with her brother Blair, visiting him while
he was in San Francisco for an academic conference.
Blair had been aware of her transition, but they had never had a
conversation about it. Now they sat in his hotel room, facing the
mutual challenge of brother and brother recalibrating their lifelong
relationship--this time as brother and sister. For years Blair, now an
astronomer at the University of Wisconsin, would struggle to reconcile
the male role model of his formative years with this accomplished woman
who was part stranger. Over time he found the answer that allowed them
to come together again as family. ``I think of them now as two
different people,'' he says.
And then, in 1983, Lynn arrived at the most disquieting stretch of
uncharted familial territory.
For Kelly and Tracy, their father's absence was a mystery that
reasserted itself at regular intervals. At Christmastime, Lynn paid for
presents that would appear under the tree marked ``Love, Dad''--
apparently so designated by Sue without Lynn's knowledge. Kelly
recalled blurting to a teacher in kindergarten or nursery school that
she had once glimpsed her father wearing women's clothes (the teacher
summoned Sue to warn her against such loose talk). And there were the
monthly checks of child support, signed by a ``Lynn Conway,'' whom the
girls imagined to be a lawyer or agent of some sort.
``I had no memory of my father,'' Tracy recalls, ``although I had
the image in my mind of someone really fabulous.'' Of the two children,
it was she who showed the greater interest in their father. When she
turned 15 she began peppering her mother with questions. ``I was a
teenager watching all my friends be Daddy's little girls, and I wanted
to know who my dad was.''
But her mother, who had spent more than a decade carefully dodging
the painful issue of the phantom Robert, was not about to confront it
head-on. Instead she chose to deal with the questions at a safe remove.
One day while traveling on business, Sue set down the broad details of
Robert's transformation in a letter and mailed it home, addressed to
Tracy.
Tracy opened the envelope and moments later burst into her older
sister's room. ``You're not going to believe this!'' They read the
letter together. There was something about how their father was ``no
longer a he, but a she,'' and how their mother knew something was not
right with Robert but not exactly what. The letter could not help but
raise more questions than it answered, but Sue remained loath to fill
in the gaps. The girls struggled with wrenching questions, including
the bedrock riddle of why their father, whatever his condition, had
stayed out of their lives.
Finally, when Kelly turned 18 in 1983, Lynn made contact. She
reintroduced herself via a series of short notes, then called to invite
her daughter to their first face-to-face meeting since that desolate
day at the playground. The bafflement and denial that had swept over
Kelly upon reading her mother's letter two years earlier had given way
to a wary curiosity. They met at a French restaurant in Palo Alto,
where Kelly, who had never been to such a place, marveled at how every
dish seemed slathered in rich sauce. As they ate, neither knew quite
what to say. ``It was almost like two strangers meeting, because we
really were strangers,'' Kelly recalls.
Guardedly she brought Lynn up to date on her own life--she was
already married and had a baby boy at home. But the strained formality
of the setting prevented her from raising the most painful issues
between them, including the girls' profound feelings of abandonment.
Throughout the dinner she stole glances at the unfamiliar woman across
the table, as though searching for signs of herself. ``I was trying to
come to terms with what our relationship was supposed to be,'' Kelly
recalls. ``Was she a friend? My dad? An aunt?'' The encounter left
Kelly impressed by Lynn's humor and intelligence, but also left too
many ancient hurts unhealed. ``I didn't know after that night if I'd
ever see her again,'' Kelly says. ``She'd been away forever, and I
didn't know if she'd really be around.''
They met a few more times in California. Then in 1985, after Lynn
moved to the University of Michigan as a professor and associate dean,
she invited Kelly and Tracy to her new home in Ann Arbor, treating them
to a shopping trip, lunch at the university, a day of canoeing, a hint
of what she had become during all those years offstage.
Epilogue
The rewards and professional accolades of a distinguished career
kept coming in. Lynn received appointments to the board of trustees of
MIT's Draper Laboratory and the board of visitors of the U.S. Air Force
Academy (commemorated on her kitchen wall by a group photograph of the
trustees, all in flight suits, lined up against the redmountained
landscape of Colorado Springs). A figure of undisputed authority in
some of the most abstruse corners of computing, Lynn won election to
the National Academy of Engineering in 1989.
There was, however, a lingering resentment. DIS, the logic system
she had invented at IBM, had become a standard of computer design. Yet
others were now claiming credit for the process, years after her
brainstorm. Reflecting on her life's tortuous path and wondering if her
achievements and those of her IBM colleagues had ever surfaced, she
typed the word ``superscalar'' into an Internet search engine and came
up with Mark Smotherman's Web page. It was headed: ``ACS--The first
superscalar computer?''
Lynn was not surprised that Smotherman had problems unearthing ACS'
history. Shortly after Robert Sanders' firing, the project had landed
on the wrong side of an internal power struggle at IBM and been shut
down. The team members dispersed and IBM's own institutional memory
faded. The one place where that memory resided, as it happened, was in
Lynn's files. The corporation had been so intent on ushering Robert
Sanders out the door that it had neglected to ask him to return any of
the project documents in his possession. Lynn still had them: reams of
minutes, memos, diagrams--the complete history of a forgotten
breakthrough in computer science.
Lynn wrestled with the infinite complications that would be raised
should she make the cache public, thereby ``outing'' herself. Was she
entirely comfortable in her role as a woman? Was there perhaps some
hint still of shame? Was she a transsexual who happened to be a woman?
A woman who happened to be transsexual? Or simply, at last, a woman?
There were many reasons to remain quiet, but threaded through her
own life experience, Lynn also glimpsed a reason to step forward. Tens
of thousands of transsexuals, whether they had had their operation,
were contemplating one, or had chosen to live as the opposite sex
without undergoing surgery still were forced to make their way alone,
as she had. Who could know how many suffered in solitude, unaware of
their options and opportunities, of what their predecessors had learned
about living with their condition? Only when homosexuality had come out
of the closet did enlightenment start to ease the burden of gays and
lesbians. Maybe it was time for transsexuals to benefit from the same
process. Almost before knowing it, she had decided. Lynn copied the
most important papers. After carefully eradicating her old name and
inserting the new on every title page, she sent them to Smotherman and
a few old colleagues. She was emerging from stealth.
With the same determination she once devoted to designing and
building backyard radio-telescopes and room-sized computers she made
contact with old friends, revealed her past and challenged them to see
her whole. She directed some to her Web site, www.lynnconway.com, where
she posted a candid ``retrospective'' of her life. Many were surprised
at the information, but no one shunned her. ``I reassured her that I
had known about it and it was OK then and it was OK now,'' Carver Mead
says.
For Lynn herself, the process meant reexamining a lifetime of
decisions and choices. Recently, on a drive home from her office in Ann
Arbor, Lynn reflected on the path onto which nature had steered her.
``I sometimes think that all this stuff''--the achievements of a hard-
fought career--``is overcompensation. If I'd been born 20 years later
and transitioned at the age of 20, I probably would have found a
husband and adopted kids. But I was just too early, and the transition
came just too late.'' She stopped for a few moments. The tears passed.
``But I've got to the point where that's just a fact of life.''
Besides, she will tell you, she has too much to cherish now to
dwell on regrets.
One day in 1987, at a canoe shop in Ann Arbor, she fell into
conversation with a fellow enthusiast of nature. She ran into him again
a few weeks later at a canoeing party. He was a professional engineer
named Charlie, a hunter and outdoorsman who would shortly introduce her
to his other passion, amateur motocross racing.
A new possibility, long renounced, reappeared. Within a few months
they were living together and by 1994 they were looking for a house to
buy. In a rural township about a half hour from Ann Arbor there was a
trim little cottage on a few acres of marsh, meadow and wild woodland.
Tentatively, as though testing a stove top that had burned before, Lynn
sat Charlie down one night and broached a subject she knew she had left
too long unaired.
``I think there's something you need to know about me,'' she said.
``She began filling me in on things I'd never begun to suspect,''
Charlie recalls. ``I've got to say it was a little bit stunning. I was
in a fog for a while, absorbing it. But I knew it was probably as hard
for her to get into as it was for me to hear it.''
He was a single man, never married, distant from his family. Like
her, a soul looking for companionship and more. Despite his confusion,
he offered reassurance. ``On the Huron when we met,'' he said later,
``we were both at a point in our lives where we needed someone like the
person we saw the other to be.''
That's all Lynn ever wanted. To be seen by others as she had always
seen herself. And that's the person her friends and family members have
now accepted. Tracy and Kelly have welcomed her into their lives. To
their children she is, at last, their beloved ``Aunt Lynn.'' Says
Kelly, ``I love her and love for her to be in our lives. We're very
close and very similar. To us what happened in the past doesn't matter
anymore.''
______
Chairman Andrews. I also want to take a moment and thank
some constituents and friends from New Jersey that are present
today from Garden State Equality: the Vice Chair of that group,
Barbra Casbar Siperstein. Barbra, welcome--Babs, I should say.
Lilly McBeth and Angela Rain. They are constituents and
friends. We are very glad that you are with us, as all of our
guests, today.
I want to thank each of the witnesses for very thoughtful
testimony; and, Mr. Lavy, I wanted to explore with you the
concept of religious liberty and rights of conscience in the
workplace and how it would interact with attempts to protect
members of the transgender community. When you use an example
that is saying forcing persons with beliefs, certain religious
beliefs, to treat transgender as a valid concept is like
forcing an Orthodox Jew to eat pork, it is the law though
today, isn't it, that if an Orthodox Jew runs a law firm that
he or she cannot refuse to employ a person because they are
Catholic, is that correct, if the law firm is larger than a
certain size?
Mr. Lavy. That would be correct.
Chairman Andrews. Is that a violation of the Orthodox Jew's
religious principles?
Mr. Lavy. Not that I am aware of.
Chairman Andrews. Well, what if the person says, look, my
principles are that I want people who read the scripture the
way I do, who understand and worships the way I do. So if
someone believes that there is a human being who is supreme
overall in the name of the Pope, I don't want someone who
believes in papal supremacy working for me because it violates
my understanding of the scripture. Does that orthodox Jewish
law firm have the right to deny work to the Catholic applicant?
Mr. Lavy. Under Federal law?
Chairman Andrews. Right.
Mr. Lavy. No, he does not.
Chairman Andrews. In your opinion, should they be able to?
Mr. Lavy. I am unaware of someone having a religious belief
that employing someone with a different religious belief
violates their conscience.
Chairman Andrews. Well, of course, this is not a matter of
someone having a different religious belief. What we are
arguing about here is, if someone believes that sexual identity
at birth is a matter of religious belief and someone who takes
a different view applies for a job, I think your position is
that to compel the employer to disregard that fact would be a
violation of the employer's religious belief, is that your
position?
Mr. Lavy. Not hiring someone with a different view. But I
am saying that there are people who have a deeply held
religious view that employing someone in that circumstance
would violate their religious beliefs.
Chairman Andrews. What about this one? What about if
someone is a member of a religion is pacifist that believes
that taking up arms is a violation of their religious
principles and the center of her religious belief is pacifism.
And the job applicant is a Marine Corps combat veteran. Do you
think the pacifist should have the right to deny employment to
the Marine Corps combat veteran because pacifism is a central
tenet of their religious beliefs?
Mr. Lavy. I don't see how that violates the religious
beliefs of the pacifist.
Chairman Andrews. So if someone believes that taking up
arms and making war is central to their--there are religious
faiths that believe that pacifism is a very central principle.
And if someone doesn't follow that principle are you saying
that doesn't violate that central tenet or belief?
Mr. Lavy. I would say that it would be very different if
the person is actively engaging in war at the time the person--
--
Chairman Andrews. What if the person is a Marine Corps
reservist and they are going to be called up to active duty in
all likelihood in a couple of months. That they would be
actively engaging in combat. How about that?
Mr. Lavy. In that case, it may be a violation of the
religious beliefs but not one that would be accommodated under
Title VII.
Chairman Andrews. No, but I didn't ask you about Title VII.
I asked you what your opinion was. So is it your opinion that
the pacifist employer should not be permitted to deny a job
opportunity to the Marine reservist?
Mr. Lavy. It is my opinion that the pacifist employer
should probably have the right to do that.
Chairman Andrews. Should?
Mr. Lavy. Yes.
Chairman Andrews. Okay. What about the member of a religion
that is white supremacist, that simply believes that whites are
a superior race. In your belief, should that employer have the
right to deprive a job to an African American applicant?
Mr. Lavy. I am not aware of that as a religious belief, but
no.
Chairman Andrews. You think they should not have the right
to?
Mr. Lavy. Right.
Chairman Andrews. So a faith that has racial supremacy as
its core tenet is not a valid faith?
Mr. Lavy. I guess I am thinking in terms of the concept of
religious liberty in our Constitution and the fourteenth
amendment. That was a judgment by Americans that using race as
criteria is not valid regardless of any----
Chairman Andrews. But you seem to say if we make a judgment
that using gender identity is a valid criteria and that is
somehow morally invalid, if we have the power to make the
judgment about race, why don't we have an equally valid power
to make the decision about gender identity?
Mr. Lavy. I am saying that I think it is not a good idea to
do that. I am not saying that you don't have the power to do
it, although there may be a religious----
Chairman Andrews. My time is up. I think you were saying
something a little different. Because it is not how we define
the classifications. I am asking you about the scope of this
religious conscience immunity that people have, and it seems to
me that the scope has to be what the scope has to be. That
there can't be one scope of immunity in the case of a pacifist
employer and another scope of immunity in the case of a racist
employer and another scope of immunity in the case of someone
who is somehow discomforted by transgender people. Shouldn't
the scope be uniform across the board?
Mr. Lavy. I think that the issue is not as simple as being
discomforted by a transgendered employee as much as it is a
deeply held religious belief. I think that under the
Constitution the race issue is a matter that has been
determined.
Chairman Andrews. My final point--and I don't want to hog
the time--but don't you have an establishment clause problem
with that? Because it seems to me that it says that acceptable
religions as we define them will have the zone of immunity so
that deeply held religious beliefs will exempt people from
employment discrimination laws, but other kinds of religions,
be they white-supremacist-based, pacifist-based, don't. Doesn't
that put us in the position of defining what is an acceptable
religion for this exemption and which isn't?
Mr. Lavy. Not when the white supremacist group cannot
exercise that belief because of the fourteenth amendment.
Chairman Andrews. Sure they can. They can publish books
that say that white people are supreme. They can do that. The
fourteenth amendment doesn't preclude that.
Mr. Lavy. Certainly they can publish a book.
Chairman Andrews. They can hold worship services that say
that, can't they?
Mr. Lavy. I am sure they can.
Chairman Andrews. Okay. We may come back and explore this
in the second round.
Mr. Kline.
Mr. Kline. Thank you, Mr. Chairman. Thank all the witnesses
for your testimony, very enlightening as always.
I want to particularly thank the lawyers who are here
because it gives Mr. Andrews particular pleasure in the great
battle of what is the best law school. I guess I would have to
admit that I, frankly, don't care, but he does, so thank you,
thank you for that.
Ms. Miller--an. I don't know if we resolved the issue about
the law school here, but you had very interesting testimony
that I think is extremely important to us as we consider the
possibility of statute. I believe very firmly that the language
that we use matters. Indeed, when we write a law, when we pass
a law, regulatory agencies often come in and write regulations
that may change things somewhat, but fundamentally the language
in the statute is very, very important, and we need to be clear
about that.
You mentioned in your testimony, for example, that the use
of the word ``mannerism'' could be problematic. I want to--
there is some discussion--we have had some discussion in this
committee, in fact, recently, about some language issues that
came up when we were discussing the earlier bill, the ENDA
bill, using the word ``perceived'' in that legislation which
many people thought was problematic. So I am going to look down
my notes here to make sure I get this right.
But the Americans--not just being a lawyer, you
understand--the Americans with Disabilities Act protects not
only qualified individuals with disabilities but also those who
are, in quotes, regarded as having a disability. Some of the
discussion surrounding new protection is based on gender
identity involving providing protection based on an employee's
sexual orientation or gender identity, whether actual or, in
quotes, perceived.
Can you tell us, in your view, is there a difference
between the regarded as test under the ADA and the perceived
test set forth in the earlier ENDA bill and in this bill? I
think we have a stand-alone bill, 3686.
Excuse me. Do you know, Mr. Chairman? Are we taking that
up?
Chairman Andrews. The committee has not made a decision on
that.
Mr. Kline. I see. Go ahead.
Ms. Miller. Yes, sir, I think there is a distinction
between regarded as and perceived; and I would define it this
way.
Regarded as, particularly when we are talking about in the
context of the ADA, would imply that there is some sort of
overt act or conduct by the employer or the manager in treating
this individual and they are regarding them as disabled in
their treatment.
Perception is something totally different. Perception can
become reality. We all know that. But perceived as may be
something that is vague language that is really not actionable
when it comes time to enforcement of rights, because perceived
can be something that is totally internal. It is not
necessarily an expression by the employer or the co-worker.
Regarded as, however, is language that suggests that there
is some sort of an overt action taken.
Mr. Kline. So your testimony then is that there would be
ambiguities which would require court interpretations if the
term perceived is included.
Ms. Miller. Yes, sir, it is.
And it would not just involve court interpretation. It also
would involve a great deal of confusion by the managers and the
human resources people in the field, and we would end up
litigating over the table as to whether somebody's conduct,
whether somebody's personal belief constituted a perception or
not.
We cannot legislate people being nice to each other. It
would be nice to do that, but we cannot. We all know that. And
we cannot legislate people's internal thoughts and processes.
That is part of the part about being in America. We allow
people to have freedom of thought and freedom of expression
internally.
Regarded as is much better language because it implies that
there has been some sort of an action taken in the workplace
and then that can become the subject of any type of debate or
litigation.
Mr. Kline. Okay. So as I understand this then, if we were
to continue to use the word ``perceived,'' for example,
litigation would surely follow, which means that you need
lawyers on both sides and these respective law schools can
grow.
All right. I yield back, Mr. Chairman.
Chairman Andrews. Full employment. Thank you, Mr. Kline.
Next, Ms. Sanchez is recognized for five minutes.
Ms. Sanchez. I am just going to start.
Mr. Holt. Mr. Chairman, may I speak out of order for an
unanimous consent request?
Chairman Andrews. Sure.
By the way, the reason for this is that we, following the
rule, are recognizing in order of appearance.
Mr. Holt. Just for a unanimous consent request to submit a
statement in the record----
Chairman Andrews. Without objection.
Mr. Holt [continuing]. And to excuse myself.
Chairman Andrews. Without objection.
Ms. Sanchez.
Ms. Sanchez. Thank you.
I am going to start with a quote from Martin Luther King,
Jr. He said that laws cannot change people's hearts, but they
can restrain the heartless. And I think that it would do well
for all of us to remember that.
No, we can't legislate what people's thoughts are, but we
can legislate their actions. And where we find discrimination
we can say that that is something that is unlawful. And the
last time I checked, every time the Congress passes a new law
it is subject to interpretation. And, yes, sometimes the courts
have to decide what the statute actually means. So the idea
that, oh, there is going to be all this litigation, every time
we act in this body there is that potential. But that doesn't
restrain us from doing the job before us and trying to tackle
the challenges that we see before us and trying to hopefully
make society a better place in all different respects.
I want to begin my questions with Mr. Minter. In California
and in 11 other States and in the District of Columbia and more
than 100 local governments, they have enacted explicit
employment discrimination protections for transgender
individuals, is that correct?
Mr. Minter. Yes.
Ms. Sanchez. And yet in the background materials that I
have reviewed to prepare for this hearing I have learned that
the Transgender Law Center in San Francisco seems to keep
pretty busy in trying to protect Californians from improper
terminations, as well as on-the-job abuse and harassment.
One of the examples that was given was that a 13-year-old
employee of a--or pardon me, a 13-year old--a 13-year employee
of a San Francisco night club was verbally harassed, demoted
and even subjected to physical assault all because he informed
his employers that he would be transitioning to male. If this
kind of thing is happening where there are legal protections in
place, it makes me wonder just how much worse it is for folks
whose legal recourse for such abuse of incidents is less clear.
And my question to you is, can you please explain for us
why clarifying Federal law would be helpful, given the
treatment that many transgender individuals receive on the job
both in States with explicit protections and those without.
Mr. Minter. Yes, thank you. Well, as you point out,
Congresswoman, merely passing a law does not automatically
change people's hearts or eliminate all discrimination; and we
certainly know that from race discrimination, sex
discrimination, religious discrimination laws. We still have to
deal with those realities in our society.
But what those laws do, the critical, essential thing
accomplished by those laws, is to make it perfectly clear to
everyone, including employers and employees, that we as a
society condemn discrimination on those bases because they are
completely unrelated to a person's ability to perform as an
employee.
Unfortunately, when it comes to gender identity
discrimination, we don't have that clear message; and so what
you see as a result is the kind of blatant, shocking, overt,
unembarrassed discrimination that has been described on the
panel today and that devastates people's lives and literally
leaves people with no way to earn a living and leads to
incredibly high rates of homelessness and poverty in the
transgender community.
This, for our community, is a crisis. Having a Federal law
that makes clear that employers cannot discriminate on the
basis of gender identity without running the risk of liability
would have a transformative effect on our country. There is no
doubt about that. And we have seen that in the States and
localities that have those laws.
True, we still have problems, but it provides a platform
for education, and it provides legal recourse which in the long
run tremendously reduces the level of discrimination. And that
is what our community so desperately needs.
Ms. Sanchez. Thank you, Mr. Minter.
Colonel--and I am not sure how to pronounce your last name,
and I don't want to mispronounce it--I just want to thank you
for your service to our Nation. I think that anyone who wishes
to serve should be able to do so.
I think that oftentimes, you know, certain workplaces are
the richer and the better for the diversity that people bring
to the table, and I think the first panel of witnesses for
today shows how much better Congress is because of that
diversity.
I am wondering, what does our country lose out when they
don't allow people like you to work at the Library of Congress
and brief Members on an area of expertise that you have so much
leadership and ability in?
Colonel Schroer. Congresswoman, I think, without having
numbers, but the issue is very much akin to gay service in the
military. Why should this country deny itself that pool of very
qualified people and that expertise and experience that is
there just because they are transgender? It almost defies
belief.
Ms. Sanchez. And just briefly, if the chairman will indulge
me, have you heard of other incidences similar to yours that
have gone on or is this a very rare occurrence?
Colonel Schroer. No, unfortunately, it is all too common an
occurrence; and, as Shannon's comments bear out, it is,
unfortunately, all too common that the discrimination is
blatant. But there are also legends, scores of cases where the
employer was up to similar methods of removing an employee; and
so, again, I think Shannon's comments are spot on that the
leadership is key.
In my experience, the work that I have been able to do in
this town is key to the relationships that I have built up in
25 years in military service. Those people are the ones who
hire me and push work my way. People that don't know me almost
seem to have an implied sense that there should be
discrimination because I am somehow abnormal or abhorrent. What
we critically need, as Shannon mentioned, is leadership here to
send a clear message that this is not abnormal or abhorrent.
Ms. Sanchez. Thank you. And I want to thank all the
panelists and yield back the balance.
Chairman Andrews. Thank you, Ms. Sanchez.
By unanimous consent, Mr. Payne is here as a member of the
full committee. He is recognized for five minutes.
Mr. Payne. Thank you very much, and thank you for allowing
me to sit in your subcommittee, although I am not a member of
the subcommittee, but this is an issue that I have a tremendous
amount of interest in.
I think discrimination in general is just wrong. You can
see why I think that. There have been a lot of changes, of
course, in the course of the years. I was born in the 1930s,
and so I certainly, growing up, found much discrimination being
a black person in a city that was known for a lot of racial
discrimination even though it was in the north, Newark, New
Jersey.
And it is good to see you again. He harasses me in my
office.
Let me just ask the question regarding restrooms that was
brought up. I saw someone in the audience shaking their head,
and so I just wonder if anybody would like to just discuss that
issue. It is certainly going to be an issue, I would imagine;
and so if you could just have a dialogue on that issue.
Colonel Schroer. Congressman, if I might, I would only say
that from my personal experience it has never been an issue. I
am recognized as a woman wherever I go, and people in all walks
of my employment and personal life have no issues where I go to
the bathroom.
Mr. Minter. And I will just jump in there. You know, we
actually have a lot of experience with this issue now because
there are a number of State and local laws and there are so
many employers now that have adopted nondiscrimination
policies. There is a very standard, tried-and-true approach to
bathrooms. It is the only one that is workable and human and
respectful.
That is for a transgender person to use the restroom that
corresponds to their gender identity when they take that step
of living full time in their true gender. That is consistent
with the medical protocols and with common sense. And what we
have seen time and time again is that any discomfort that co-
workers may feel very quickly dissipates; and that is because a
transgender man really is a man, a transgender woman really is
a woman. Co-workers very quickly come to recognize that.
We have such a great track record on that all across the
country. I mean, there are thousands of transgender people who
every day use the appropriate restroom without any incident or
problem. So that is one issue that is very straightforward and
really, in a practical sense, a nonissue.
Ms. Miller. My suggestion, sir, would be if there is
guidelines already out there and that have been successful that
the committee look to that and use that and put that in any
legislation that this committee may support, propose and that
is passed so that employers are not left trying to wade through
this.
Because, again, we have very sophisticated companies such
as Dow who are here, and they have a very comprehensive policy.
But this proposed legislation may apply to smaller companies.
Again, as I testified to, 15, 16, 17 person employee companies
are not going to have that level of sophistication, and they
are going to take their guidance from whatever Congress passes.
Ms. Taraboletti. The only thing I would like to add to this
is that when I was transitioning--and I think I speak for most
of the community--is that the transgender community was always
very willing to work with our employers to do this in the
most--what is the word I am looking for--we want to work with
our employers to make this as convenient as possible for
everyone. We are not just looking to ourselves. We want to make
our transition as easy as possible for just ourselves and for
the people who work around us. So we want to be considerate as
employees.
Mr. Payne. Thank you very much.
Just, finally, this issue, I imagine, is going to start to,
especially now that we have finally--and, I mean, I commend the
chairman for calling this hearing. As Chairman Frank said
earlier, we could have found one million reasons not to have
the hearing. As a matter of fact, I wasn't even supposed to be
here, so that would have been a good reason not to be here. I
didn't really know the hearing was going on until--I was late
picking up my papers from the last hearing. And we apologize.
You probably all thought, there they go again, they are
discriminating against us, keeping us waiting for this and all
that stuff, right? But, no, it was holdover from yesterday.
In defense of Mr. Andrews, as you know, we had these votes
that were supposed to be done yesterday, so we had to do them
today. So all those conspiracy theories I heard probably
mumbling out there, sorry, they weren't true. There was a real
legitimate reason for the delay.
Now, what was my question at the beginning? I think I was
going to get to the question of how do we--how do--oh, yeah, I
remember now.
The fact that this hearing is held and so, therefore, a
dialogue has begun, a formal dialogue, what suggestions do you
in the transgender community have as it relates to the attempt
to educate Americans? I mean, this is something relatively new.
Coming out into the open is overdue, but it is here. And I
think, one, we should pass laws and have people respect the
law. However, is there any suggestion about how a dialogue in a
broader sense could begin so that education about the subject
could be discussed? Do you think it should be in the workplace?
Do you think it should be like a NAACP-type thing? Or do you
think--how do we start to get a dialogue going?
Chairman Andrews. If I could just ask the witnesses to very
briefly respond, because it is Mr. Hare's turn. Thank you.
Mr. Minter. Well, can we just say how much we recognize
very keenly the demands on you all's time and what it means to
have made time to discuss this topic today to kind of tell you
how important that is. This hearing in itself is a quantum leap
forward on the public education front, and we appreciate that
enormously.
The other thing I would just say is how indebted we are to
the corporate sector. It is wonderful to have Dr. Hendrix here
today. The corporate world has really been such a leader on
this issue. So many businesses have adopted proactively,
voluntarily, wonderful nondiscrimination policies; and they are
our best spokespeople in any venues we can find to have more
dialogues like the one here today with representatives from the
business world and a chance for the public to hear from people
like Colonel Schroer and the other witnesses here today with
their remarkable records of accomplishment and skills and to
see what we are missing out on, what our country is missing out
on by not protecting those valuable workers.
Mr. Sanchez. Absolutely. And as we are here experiencing
this with you--and thank you so much for this--we go back to
our towns and we know that you are leaders in your towns.
So one of the ways--your question, I think I understand it
pretty clearly. It is like for those of us of color how did
they ever think that we were human after all? Met more of us.
And how they met more of us was through the people who were
more like them than like us.
Translating that to this scenario, let us work together
with organizations and you and your offices to get to know us
in different towns. You have access to things and media people
and community forums and town halls that we would be willing to
participate with you in. So consider us a partner, I would say,
and let us use both our people across the country.
Because there actually are a lot of us, and some of us have
been around for a long time. It is just not always safe. So
making it safe for us to be with you in your communities would
be very helpful. And we have organizations that you already
work with as well that we can make this even richer.
Chairman Andrews. Ms. Taraboletti, did you want to add
something?
Ms. Taraboletti. Just very quickly. The National Center for
Transgender Education and a task force are ready, willing and
able to supply the people you need to talk to and organize
those people to supply the expertise you need to have those
meetings and get those dialogues started.
Chairman Andrews. Thank you very much.
Mr. Sanchez. As is the Human Rights Campaign.
Chairman Andrews. Thank you, Mr. Payne.
Mr. Hare is recognized for five minutes.
Mr. Hare. Let me, first of all--you have thanked us. Let me
thank you for being here. This is long overdue. I appreciate
you being here, and I appreciate the chairman having the
hearing.
Mr. Lavy. I just want to take issue with a couple of things
that you said and just give you my perspective, and then I do
have a couple of questions for the witnesses. You talked about
this being a moral judgment and religious beliefs. Let me
submit to you that a person that I have read a lot about a few
thousand years ago, the people that this person hung around
with that he was closest to, were people that nobody else
wanted to associate themselves with. And I think we should
remember that.
I also think you said this is a moral judgment. From my
perspective, and being very candid, this legislation, it is a
moral obligation that not only this Congress has but this
Nation has. Because if this were a case from my perspective of
a person being African American and they were fired simply
because of that, all heck would break loose. You can't do that.
But somebody like the Colonel and the other witnesses that have
testified here that have given so much to this Nation, that
seems to be okay to do. It is not okay to do.
And when you said there are no simple solutions, sir, let
me suggest to you that I could not disagree with you more.
There are. It is called this Congress passing a legislation
that bars this. That makes it simple, and the courts can figure
it out. And one witness says, well, you can't legislate how
people feel or how they think. That might be. This is America.
But I believe we can legislate what is right and what is just
and what is fair and that is the purpose I believe of this
hearing and of this legislation. So, with all due respect, I
could not be more at odds with you in terms of how this is.
And, you know, I think the restroom thing and some of the
other things that have been brought up, those are all
situations that--you know, we put people in space. We could
figure this out. You don't have to have--I am not a lawyer, Mr.
Chairman, with all due respect, either. But you don't have to
have a law degree.
Chairman Andrews. Be careful now.
Mr. Hare. Sorry. I don't want to anger my chairman or I am
in trouble.
But I just want to say to the people here, my sister lost
her eye when she was growing up; and I know what it is like
when people make fun of you. She is different. She ended up
working for 30 years, 35 years for one of the best surgeons in
my area, and she did quite well. So, you know, I am sensitive
when it comes to--and I cringe when I hear about, well, we just
can't do this, no simple solutions, privacy issues.
And, again, I go back, sir, to say to you this is a moral
obligation we have. The last time I saw the Constitution, it
read that every person was supposed to be created equal. It
didn't cherry-pick.
I do want to ask the people who are here that have
testified that have lost their jobs, and Colonel and Ms.
Taraboletti----
Ms. Taraboletti. Yes.
Mr. Hare. I got that right. That is not bad for a guy
without a law degree--and Mr. Sanchez, as victims of
discrimination.
Mr. Kline. Quit bragging, quit bragging.
Mr. Hare. And he is a Marine. I can't even top that.
Well, you have been victims of discrimination. And I don't
know and I will never know what that is like, I hope. How did
you support yourselves and your dependants when you lost your
jobs? How have you been getting by and what do you do when
everything you have ever had is gone simply because of
something as mean-spirited as this?
Colonel Schroer. Congressman, I guess I will start.
And, once again, the people who came to my rescue were the
people that everyone else thought would desert me; and so my
colleagues in the Special Operations community recognized what
I was capable of doing and work that I had done in the past and
worked diligently to find work for me so that I could continue
to support myself and make a meaningful contribution. Without
them, I am afraid I wouldn't be here today.
So, again, it is thanks to them that they went out of their
way and, in many cases, put themselves and their reputations
and their firms' reputations at risk to deliberately provide me
an opportunity to continue to work.
Mr. Hare. Anybody else care to comment on that?
Ms. Taraboletti. Yes, I would.
I started in the privileged class. I was, you know, a white
male. And that is very interesting, because I didn't know
discrimination, also. And one of the things I am really
thankful for is that God gave this to me.
At first, I wasn't. At first, I was horrified as a teenager
that God gave me this, and now I look at it as a gift because I
have gotten to see so much of the world.
Mr. Payne. you were discriminated, and you have known that
for your life. And I am a big fan of Martin Luther King, also,
and I think he is a hero in this country, and I honor him
because now I understand discrimination.
Ms. Miller. I am surprised at you, because you have
forgotten that only your great-grandmother couldn't even vote
or great-great-grandmother couldn't even vote a century ago,
and you have forgotten that women were discriminated against. I
know that pain, and I remember it now.
But you asked me how I survived. Well, I had accumulated
about $300,000 in 401(k). That is just about gone now after
five years.
I also took jobs at a much lower level than my education
allowed. My last job, as you know, I was working for the
Department of Transportation. I was making $10 an hour, and I
was filling potholes with asphalt and pouring concrete into
sidewalks. My dad gave me a work ethic, and I refused to go on
unemployment, and I refused to go on the dole. And so that is
what I was doing.
But even there I had a fellow employee draw a picture of me
in a compromising way. I filed an EEO suit for sexual
harassment. And rather than get rid of the employee who did
that to me, they found a way to get rid of me.
So even though you said that I was employed, I am now once
again unemployed by the State of Florida. So there is a second
time I am unemployed. So there you have it. I am almost out of
my original 401(k), I am unemployed, and I am about ready to
sell my house.
Mr. Hare. Thank you, Mr. Chairman.
Chairman Andrews. Ms. Miller, did you want to comment,
since your name was invoked?
Ms. Miller. Thank you, Mr. Chairman.
I am very much aware of the struggle of women in this
country to be treated fairly. I am a graduate of a woman's
college. I worked my way through law school. The most egregious
example of sexual harassment I have ever encountered happened
to me while I was an employee of the Federal Government, and no
one did anything to address it.
But I also sit here today as a representative of millions
of women who are business owners and small business owners. And
I also sit here today as the product of somebody who has been
given a leg up, mentored and helped by men through my career.
So I am very painfully aware that discrimination still exists
in this country 43 years after the passage of Title VII, but
that doesn't mean that we shouldn't have open dialogue and
respect each other's backgrounds.
Chairman Andrews. I appreciate that. I appreciate the
comments of all the witnesses.
Mr. Kline. do you have anything to say in closing today's
proceedings.
Mr. Kline. I do not, Mr. Chairman.
Chairman Andrews. I would like to thank Mr. Kline and my
Democratic and Republican colleagues for their participation
today and each of the witnesses for their meticulous
preparation and for the work that they have done in making this
hearing possible.
Yesterday, almost every Member of the House of
Representatives voted in favor of revisions to the Americans
with Disabilities Act. It is anticipated the President may sign
this into law this summer, and I hope that he does.
I think the issue that 400-plus House Members voted for
yesterday is the same issue we are talking about here. The
principle that drew the House together yesterday was the notion
that if you apply for a job or apply for a promotion or are
considered for a promotion, whether or not you get the job or
the promotion should be a function of your ability and your
worth ethic, not any extraneous or irrelevant factor.
Now, we are going to have a vigorous debate in this
committee over the extent to which transgender status is an
irrelevant or extraneous factor. We are going to have the
discussions we have here today as the best way to accommodate
reasonable concerns of employers in the workplace. We are going
to have a vigorous debate as to the scope of freedom of
conscience and freedom of religion for those who may feel a
different set of moral beliefs than we ourselves do.
But I don't think the principle here is that ambiguous or
that complicated. I really do think that when someone is up for
a promotion or a position at CRS, if that person is the best
one for the job, they should get the job. And I certainly don't
think that someone should be dismissed from his or her job
because of one's transgender status. And we are going to have
vigorous debate over the extent of which that principle should
be written into our law. The members of the panels today have
given us significant contributions toward resolving that
debate.
Progress in this country is glacial; and if you are the
person who needs the progress, it is slower than that. But one
of the comments that was just made I think do give us some
reason for optimism. My mother was born in 1919. The day that
she was born voting was a very new idea for women. Mr. Payne,
when he was born and raised, the idea of serving in the United
States Congress would have seemed like a preposterous idea,
given the circumstances under which he was raised in a city
that was supposed to be removed from the Jim Crow South.
I remember I went to school with at least two individuals
who committed suicide before their 35th birthday because they
were gay men and they couldn't deal with the circumstances of
the rejection and repudiation in their own communities and, in
some cases, in their own families, because of asserting who
they were and how they felt comfortable. There has been
progress in that field as well.
I view today as an important step in the road to progress
for all people, all people. And I don't think this hearing
simply has significance for those who are members of the
transgender community. I think it has significance for anyone
who is a member of any unpopular or forgotten minority who
doesn't have a lot of votes, a lot of money, a lot of power but
has a lot of passion behind their cause. So we appreciate
everyone's participation.
I would note that, as previously ordered, members will have
14 days to submit additional materials for the hearing record;
and if any member wishes to submit follow-up questions in
writing to the witnesses they should coordinate with the
majority staff within 14 days.
Without objection, we thank you; and the hearing is
adjourned.
[Additional submissions from Mr. Holt follow:]
Prepared Statement of Pride at Work, AFL-CIO
Chairman and Members of the Committee: Pride at Work, the lesbian,
gay, bisexual and transgender (LGBT) constituency group of the AFL-CIO,
thanks the House Subcommittee on Health, Employment, Labor, and
Pensions for its historic hearing on gender identity discrimination in
the workplace and for allowing us to submit testimony. We believe that
now is the time to take effective action to protect transgender
workers, as well as other workers whose gender identity or expression
do not conform to traditional expectations, against discrimination in
employment and employment-related benefits.
Transgender and other gender-different people suffer severe and
pervasive discrimination in employment. Indeed, such discrimination is
a major factor in the serious disadvantage, material and otherwise,
that is experienced by this community. Testimony submitted to this
committee by the National Gay and Lesbian Task Force Action Fund
provides ample documentation of work-related discrimination against
transgender people. While state and local laws and executive orders,
labor contracts and employer policies are increasingly recognizing this
problem and attempting to remedy it, such protections remain
insufficient. Many transgender and gender-different people continue to
suffer from chronic unemployment or underemployment, and many others
who retain their jobs have seen the door closed to further career
development.
In addition, transgender employees who retain their jobs are often
denied access to appropriate health benefits, subjecting them to heavy
out-of-pocket expenses as well as to debilitating stress and despair.
Transgender and gender different people who are unable to secure
stable employment that fully utilizes their skills and talents are
often forced into the underground economy, in the sex trade or into
under-the-table ``cash businesses'' in which they can be badly
exploited. Transgender sex workers face very serious risks of violence
from customers as well as police brutality.
While twelve states--California, Colorado, Illinois, Iowa, Maine,
Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont,
Washington--the District of Columbia, and 106 local jurisdictions at
present broadly prohibit employment discrimination based on gender
identity or expression, and a few other states and localities have
prohibited such discrimination in public employment by law or executive
order, transgender people still must rely on only a patchwork of
protection.
When transgender workers call the Pride at Work office in
Washington to report job discrimination and ask what legal recourse
they have, the first question that we must ask is in what jurisdiction
their workplace is located. (For example, we might ask a caller from
Baltimore, ``Do you work in Baltimore City [which has a transgender
inclusive anti-discrimination ordinance] or in Baltimore County [which
does not]?''
The labor movement has long stood in the forefront of efforts to
prohibit discrimination against the most vulnerable parts of the
workforce. The AFL-CIO Executive Council has been on record for over
five years as supporting the right of transgender workers to be free of
discrimination in employment.
American unions are increasingly negotiating anti-discrimination
protections for transgender and gender-different workers in labor
contracts in many industries. To name only a few examples, contracts
negotiated by The Newspaper Guild/Communications Workers of America
with The New York Times and The Boston Globe have prohibited
discrimination based on gender identity/expression since 2003 and 2004
respectively, and the Graduate Employees Organization, Local 3550,
American Federation of Teachers, conducted a contract campaign in 2004-
2005 at the University of Michigan, Ann Arbor, that won not only
contractual anti-discrimination protection but also opened the way for
transgender workers to gain insurance coverage of their healthcare
needs.
American labor has also been a powerful force in support of anti-
discrimination legislation at the local, state and federal levels. For
example, the New York City Central Labor Council endorsed an anti-
discrimination bill covering gender identity/expression that was
enacted by the New York City Council and signed into law in 2002;
unions in New York state representing more than 250,000 employees are
supporting the Gender Expression Non-Discrimination Act, a bill pending
in the New York state legislature, and about two dozen labor
organizations endorsed the fully inclusive version of the federal
Employment Non-Discrimination Act (ENDA) when it was introduced as H.R.
2015 in the spring of 2007.
In accordance with the proudest traditions of the labor movement,
we believe that an injury to one is an injury to all. We urge Congress
to act promptly to help remedy workplace discrimination against
transgender and gender-different Americans.
______
Prepared Statement of the National Gay and Lesbian Task Force Action
Fund
Chairman and Members of the Committee: We would like to thank the
House Subcommittee on Health, Employment, Labor, and Pensions for
holding a legislative hearing on gender identity discrimination in the
workplace and allowing us to submit testimony today. It is historic
when Congress holds a hearing like today's, when the issues that
transgender people face everyday are given consideration by the
lawmaking body of our nation. On behalf of the National Gay and Lesbian
Task Force--the oldest national organization advocating for the rights
of lesbian, gay, bisexual and transgender (LGBT) people--we urge you to
consider the necessity and urgency of including gender identity in
future federal employment protections. There is evidence of pervasive
discrimination against transgender people in the workplace and current
laws and employer policies are insufficient to protect their rights.
Transgender employees have historically faced considerable
discrimination in the workplace, including failure to hire or promote,
demotions, terminations, restrictions on a person's gender expression,
and hostile workplace environments. Employment discrimination may be
the largest barrier transgender people must overcome to live secure
lives. A national study conducted by Lombardi between 1996 and 1997
reported that 37% of transgender people surveyed have experienced
employment discrimination. (Lombardi, E.L., Gender Violence:
Transgender Experiences with Violence and Discrimination, 2001). Survey
results are similar across cities and regions on both coasts and the
Midwest. For example, a study conducted between 1995 and 2001 in
Illinois found that 37-42% of transgender individuals experienced
employment discrimination. (Plotner, B. Discrimination 2002: 6th Report
on Discrimination and Hate Crimes Against Gender Variant People.
Chicago: It's Time Illinois!). In 2002, a study conducted in San
Francisco found that 49% of transgender people had experienced
employment discrimination. (Minter, S. Trans Realities: A Legal Needs
Assessment of San Francisco's Transgender Communities, 2003). In
Washington State, a 2008 study found that 41.5% of transgender people
were denied employment, fired, or otherwise discriminated against in
the workplace because of their gender identity. (Perspectives Northwest
Survey Report: Transgender and Gender Variant Community Needs
Assessment Survey, 2008). Lastly, in Virginia, a 2007 study of
transgender individuals reported 20% were denied employment, and 13%
were fired based on their gender identity. (Xavier, J.M. The Health,
Health-Related Needs, and Lifecourse Experiences of Transgender
Virginians, 2007). Attached is Appendix A, which provides more
statistics on transgender employment discrimination.
As a result of employment discrimination, large percentages of the
transgender population are unemployed and have incomes far below the
national average. Although there is no national study on the topic,
findings of studies conducted in various local and state jurisdictions
are alarming, confirming that the economic hardship transgender people
face is consistent across the nation. For example, a study conducted in
Minnesota between 1997 and 2002 reported 22% of transgender people
lived below the poverty line. (Bockting, W. 2005. Are Transgender
Persons at Higher Risk for HIV Than Other Sexual Minorities?). In
Philadelphia, a study conducted in 1997 reported 59% of transgender
people were unemployed and 56% made less than $15,000 annually.
(Kenagy, G.P. 2005. The Health and Social Service Needs of Transgender
People in Philadelphia). In Chicago, a study conducted between 2000 and
2001 found 34% of transgender people were unemployed and 40% made less
than $20,000 annually, with a median income of just $16,900 a year,
less than half the national median income. (Kenagy, G.P. 2005. The
Health and Social Service Needs of Transgender People in Chicago). In
Virginia, a studying conducted between 2005 and 2006 reported that 39%
of transgender individuals made less than $17,000 annually. (Xavier,
J.M. 2007. The Health, Health-Related Needs, and Lifecourse Experiences
of Transgender Virginians) Finally, in Washington, D.C., a study
conducted in 1999 found that only 58% of transgender respondents were
employed, 29% had no annual source of income, and 31% had an annual
source of income under $10,000. (Xavier, J.M. 2000. The Washington, DC.
Transgender Needs Assessment Survey Final Report for Phase Two).
Attached is Appendix A, which provides more statistics on the economic
hardship transgender people face.
Due to high levels of unemployment and underemployment many
transgender people, and those in their families, are left in difficult
and sometimes unlivable situations. Lack of employment means that
transgender people are unable to afford housing and pay for other basic
services. Lack of employment often means having no or inadequate health
insurance and being unable to afford basic health services. They cannot
support their spouse and families. The economic hardship created by
employment discrimination not only affects transgender people, it
directly impacts their families who fall into poverty along with them.
Transgender individuals who are people of color, HIV-positive, and
youth are particularly affected. Far too many transgender people are
forced to engage in sex work in order to survive. Ultimately, high
levels of transgender unemployment further burden the welfare system of
each state and our nation.
In most states, transgender employees have no legal protections and
employers often terminate them when it is discovered the employee is
transitioning, or has previously transitioned, genders. Currently,
twelve states--California, Colorado, Illinois, Iowa, Maine, Minnesota,
New Jersey, New Mexico, Oregon, Rhode Island, Vermont, Washington--the
District of Columbia, and 106 local jurisdictions have passed laws
prohibiting discrimination against transgender people in employment.
Five other states and sixteen local jurisdictions have laws, executive
orders, or other rules prohibiting discrimination against transgender
people that are employees of that jurisdiction (state, county, or
city). States from coast to coast are adding transgender-inclusive
workplace protections at an unprecedented pace. Today, 39% of the
United States population lives in a city, county, or state with a
transgender-inclusive workplace anti-discrimination law. Seven years
ago only 5% of the United States population lived in a jurisdiction
with a transgender-inclusive anti-discrimination law. While the
expansion of transgender nondiscrimination laws at the state and local
level demonstrates progress and creates a foundation for protections at
the federal level, modest penalties and inconsistent enforcement limit
the laws' effectiveness. We need a strong federal law in order to
provide uniformity of coverage and close gaps in state and local law.
As shown, the pervasive discrimination transgender individuals face in
the workplace warrants strong and urgent Congressional action.
Despite legal mandates to have policies prohibiting discrimination
against transgender people, corporate America acted on its own to enact
such policies because it is good for business. In fact, 153 of the
FORTUNE 500 companies have implemented nondiscrimination policies that
include gender identity. Corporate America has voluntarily endorsed
policies to judge employees solely on the quality of their work because
it is efficient to retain experienced employees and hire the best
qualified applicants. Nondiscrimination policies make for a better work
environment, demonstrate respect for diversity, alleviate wasteful and
counter-productive stress, and set clear standards for workplace
behavior. In order to bring the rest of America's businesses and
companies up to corporate America's standard, Congress should prohibit
discrimination in employment based on gender identity. Due to economic
necessity, this country cannot afford to leave talented people out of
the workforce. Competition in the global economy is increasingly acute
in almost every industry and field; we cannot afford to leave our best
and brightest out of our economy.
Previously proposed federal legislation had prohibited an employer
from using an individual's sexual orientation or gender identity as the
basis for adverse or different treatment in employment or employment
opportunities. The legislation would have also protected individuals
who are perceived to be of a certain sexual orientation or gender
identity, but who are not actually of that sexual orientation or gender
identity. Furthermore, similar to Title VII of the Civil Rights Act of
1964, the legislation would have exempted small businesses and
employers with fewer than 15 employees. In addition, every previous
version of the legislation has included some form of religious
exemption that prevents discrimination without inhibiting on the
religious freedom of religious organizations.
Lambda Legal's assessment of non-discrimination laws found that a
gender identity-inclusive law is vital in order to fully protect
lesbian, gay, bisexual and even heterosexual people who may not fit
traditional gender norms. In addition, the National Center for Lesbian
Rights reported that for many individuals in the LGBT community gender
identity and sexual orientation are inextricably intertwined. Any piece
of legislation that does not include gender identity protections leaves
gender non-conforming LGB people vulnerable to strict court
interpretations that define sexual orientation narrowly.
To move forward with a federal law that only includes sexual
orientation is an unacceptable compromise. Furthermore, movement of
legislation that singles out a part of the LGBT community to be exempt
from protections would impose a classification structure upon the
community that would divide us. We are a united community and do not
support a law which leaves a part of our community behind; omitting
transgender people would be unprincipled and unfair.
The LGBT community has one chance to pass an employment
discrimination law that will effectively and adequately protect the
entire community. Strategically, as shown at the state level, it is
easier to include ``gender identity'' in civil rights legislation the
first time it passes than have to go back and add it in later. The
trend in state legislatures the past five years has been to keep
``gender identity'' in civil rights bills and, in fact, the last seven
states to pass employment protections included both sexual orientation
and gender identity: Colorado, Oregon, Iowa, Washington, Maine,
Illinois, and New Mexico. If Congress passed federal employment
protections which excluded gender identity it could halt such progress
and send a powerful and negative signal to future state legislatures.
Federal legislation should reflect the progress at the state level, not
impede it.
The inclusion of ``gender identity'' into future federal employment
protections is essential. We cannot and will not support federal
employment protections which exclude people who are among the most
discriminated against individuals in this country. Transgender
individuals are an integral part of our Nation's diversity and should
not be denied a job on the basis of personal characteristics that have
no relationship to job performance. As a community we are more unified
than we have ever been and we will continue to advocate for fully
inclusive federal employment protections to ensure that all Americans
are protected from discrimination in employment because of their sexual
orientation and gender identity.
appendix a
National Gay and Lesbian Task Force Action Fund Testimony: Data on
Employment Discrimination Against Transgender People
Employment discrimination may be the largest barrier transgender
people must overcome to live secure lives. Many transgender individuals
are passed over for promotions and raises, simply not hired, and/or
terminated when their employer discovers they are transitioning or have
previously transitioned genders. As a result, large percentages of the
transgender population are unemployed and have incomes far below the
national average.
Although few studies have been conducted on the national level, the
findings of the following studies conducted in various local and state
jurisdictions are alarming, confirming that transgender workplace
discrimination and economic hardship are consistent across the nation.
Employment Discrimination Against Transgender People is
Widespread
Nationally, a study conducted between 1996 and 1997 found
that 37% of transgender individuals had experienced employment
discrimination.\1\ The 2007 Williams Institute review, of six studies
conducted between 1996 and 2006 in cities and regions on both coasts
and the Midwest, found between 13%-56% of transgender respondents were
fired, between 13%-47% were denied employment, between 22%-31% were
harassed, either verbally or physically, in the workplace, and 19% were
denied a promotion based on their gender identity.\2\
In Illinois, a study conducted between 1995 and 2001 found
that 37-42% of gender variant individuals surveyed experienced some
type of employment discrimination. Of the 44 reported cases of
workplace discrimination, more than half involved firings, nearly a
third involved workplace harassment, and the remainder involved
refusals to hire. The study documented 38 cases of employment
discrimination based on gender identity or expression in Cook County
alone.\3\
In San Francisco, a study conducted in 2002 reported that
almost half of 155 transgender survey respondents had been
discriminated against in employment.\4\ A study conducted in 1999 in
San Francisco found that among 392 male-to-female (MTF) participants
46% reported job discrimination and among 123 female-to-male (FTM)
participants 57% reported job discrimination.\5\
In a 2006 report of the San Francisco transgender
community, 40% of respondents believed they were discriminated against
when applying for work, over 24% of people reported that they were
sexually harassed at work, almost 23% felt that co-workers
intentionally used the wrong name or pronoun or failed to comply with
repeated requests to stop doing so, 21% heard comments that made it
difficult for them to feel safe and supported at work, 19% experienced
trouble in advancing in their company or department, 18% were fired
from a job due to gender identity discrimination, over 14% reported
discrimination in the conditions of their employment, and over 12%
reported that questions about whether they had surgery, what kind of
surgery they had, or if they plan to have surgery, have created
uncomfortable or hostile work environments.\6\
In Los Angeles, a study conducted between 1998 and 1999 of
244 MTF transsexual individuals found that 29% were fired based on
their gender identity. Forty-seven percent of the respondents had
difficulty in finding employment.\7\
In Washington, D.C., a study conducted between 1999 and
2000 of 248 transgender people of color in Washington, D.C. reported
that 15% of respondents lost a job because of their transgender
status.\8\
In Virginia, a study conducted between 2005 and 2006
reported that 20% of transgender respondents were denied employment and
13% were fired based on their gender identity.\9\
In Washington State, a study conducted between 2006 and
2007 of 258 transgender people found that 41.5% had been denied
employment, fired or otherwise discriminated against on the job because
of their gender identity and/or expression.\10\
In Idaho, a 2003 survey study of over 2000 LGBT people
reported that 16.3% of transgender participants said their employer
actually stated that they had been denied a job, a raise, promotion or
other compensation expressly because of their sexual orientation or
gender identity. In describing their work environment, transgender
participants described it more negatively than lesbian, gay, and
bisexual participants.\11\
Employment Discrimination Contributes to Economic Hardship
for Transgender People
In 2007, the Williams Institute review of eleven studies
found that large percentages of the transgender population are
unemployed and have incomes far below the national average. Between 6%
and 60% of transgender people reported unemployment and between 22% and
64% reported incomes of less than $25,000 per year.\12\
In Minnesota, a study conducted between 1997 and 2002
found that 22% of transgender people lived below the poverty line.\13\
In San Francisco, a study conducted in 1997 found that of
515 transgender people, 19% of FTM individuals and 60% of MTF
individuals were unemployed.\14\ In 2006, a report conducted in the San
Francisco Bay Area of 194 transgender individuals found a 35%
unemployment rate, with 59% earning less than $15,300 annually.\15\
A survey of African-American transgender people in San
Francisco showed that 44% depended on government assistance. Many lived
below the federal poverty level, with two-thirds of respondents
reporting an annual income under $14,400.\16\
A 2006 report on the transgender community in San
Francisco found that 15% of those surveyed earned income sporadically
(kindness of family or friends, day labor, sex work, freelance work,
and various business ventures). Furthermore, 20% of respondents
reported receiving some income from the street economy (defined to
include sex work and narcotic sales).\17\
In Philadelphia, a study conducted in 1997 found that of
81 transgender people, 59% were unemployed and 56% made less than
$15,000 annually.\18\
In Chicago, a study conducted between 2000 and 2001 found
that of 111 transgender individuals, 34% were unemployed and an
additional 40% made less than $20,000 annually, with a median income of
just $16,900 a year, less than half the national median income.\19\
In Los Angeles, a study conducted between 1998 and 1999 of
MTF transgender individuals found that 50% reported incomes of less
than $12,000 per year, and 23% depended on government assistance.\20\
In Washington, D.C., a study conducted between 1998 and
2000 found that only 58% of transgender respondents were employed, 29%
had no annual source of income, 31% had annual incomes under $10,000,
and 15% had lost a job due to employment discrimination.\21\
In a study conducted between 1999 and 2000 of 248
transgender people of color in Washington, D.C., 35% reported they were
unemployed and 64% made less than $15,000 annually.\22\
In Virginia, a study conducted between 2005 and 2006 of
350 transgender people found between 9-24% were unemployed and 39% made
$17,000 or less annually.\23\
In Washington State, a study conducted between 2006 and
2007 of 258 transgender people found that 39% of those surveyed made
less that $20,000 annually.\24\
endnotes
\1\ Lombardi, E. L., Wilkins, R. A., Priesing, D. & Malouf, D.
(2001). Gender violence: Transgender experiences with violence and
discrimination. Journal of Homosexuality, 42.
\2\ Badgett, M. V. L., Lau, H., Sears, B. & Ho, D. (2007). Bias in
the workplace: Consistent evidence of sexual orientation and gender
identity discrimination. Los Angeles: The Williams Institute.
\3\ Plotner, B., Stevens-Miller, M. & Wood-Sievers, T. (2002).
Discrimination 2002: 6th report on discrimination and hate crimes
against gender variant people. Chicago: It's Time Illinois!
\4\ Minter, S. & Daley, C. (2003). Trans realities: A legal needs
assessment of San Francisco's transgender communities. San Francisco:
National Center for Lesbian Rights and Transgender Law Center.
\5\ Clements, K., Katz, M. & Marx, R. (1999). The transgender
community health project: Prevalence of HIV infection in transgender
individuals in San Francisco. San Francisco: San Francisco Department
of Health.
\6\ San Francisco Bay Guardian and Transgender Law Center. (2006).
Good jobs now! A snapshot of the economic health of San Francisco's
transgender communities. San Francisco: The San Francisco Bay Guardian
and Transgender Law Center.
\7\ Reback, C. J., Simon, P.A., Bemis, C.C. & Gaston, B. (2001).
The Los Angeles transgender health study: Community report. Los
Angeles: University of California at Los Angeles.
\8\ Xavier, J. M. & Simmons, R. (2005). A needs assessment of
transgender people of color living in Washington, DC. International
Journal of Transgenderism, 8(2/3).
\9\ Xavier, J. M., Hannold, J.A., Bradford, J. & Simmons, R.
(2007). The health, health-related needs, and lifecourse experiences of
transgender Virginians. Richmond: Division of Disease Prevention
through the Centers for Disease Control and Prevention, Virginia
Department of Health.
\10\ Ingersoll Gender Center. (2008, January 9). Perspectives
Northwest survey report: Transgender and gender variant community needs
assessment survey. Ingersoll Gender Center.
\11\ Pollard, J. (2003). Report on the 2003 Idaho lesbian, gay,
bisexual and transgender survey. www.idaholgbtsurvey.com. Retrieved
June 25, 2008, from http://www.safeschoolscoalition.org/Nicole-
SURVEYREPORT-%20final.pdf
\12\ Badgett, M. V. L. et al. (2007).
\13\ Bockting, W., Huang, C., Ding, H., Robinson, B. & Rosser, S.
(2005). Are transgender persons at higher risk for HIV than other
sexual minorities? A comparison of HIV prevalence and risks.
International Journal of Transgenderism, 8(2/3).
\14\ Clements, K. et al. (1999).
\15\ San Francisco Bay Guardian and Transgender Law Center. (2006).
\16\ Rose, V. et. al. (2002). Investigation of the high HIV
prevalence in the transgender African American community in San
Francisco. San Francisco: University of California San Francisco AIDS
Research Institute.
\17\ San Francisco Bay Guardian and Transgender Law Center. (2006).
\18\ Kenagy, G. P. (2005). The health and social service needs of
transgender people in Philadelphia. International Journal of
Transgenderism, 8(2/3).
\19\ Kenagy, G. P. & Bostwick, W. B. (2005). Health and social
service needs of transgender people in Chicago. International Journal
of Transgenderism, 8(2/3).
\20\ Reback, C. J. et al. (2001).
\21\ Xavier, J. M. (2000). The Washington, DC transgender needs
assessment survey final report for phase two. Washington, DC:
Administration for HIV/AIDS of the District of Columbia.
\22\ Xavier, J. M. & Simmons, R. (2005).
\23\ Xavier, J. M. et al. (2007).
\24\ Ingersoll Gender Center. (2008, January 9).
______
Prepared Statement of Rebecca E. Fox, National Director, National
Coalition for LGBT Health
Thank you for this opportunity to submit testimony on the harm
employment discrimination causes transgender people. The National
Coalition for LGBT Health is composed of sixty organizations from
across the country, including health departments, community health
centers and mental health service organizations. Based on their
extensive experience in public health and with the transgender
community, our members identify access to stable, safe employment that
includes health insurance as a key factor to improve health outcomes
and alleviate health disparities.
Being transgender is neither pathological nor a barrier to
employment, although transgender people experience significant,
pervasive, and interlinked barriers to both health care and employment.
In fact, transgender people exhibit mental health problems that are
comparable to those seen in other persons who experience major life
changes, relationship difficulties, chronic medical conditions, or
significant discrimination on the basis of minority status.\i\
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\i\ Dean, Lauren et al. ``Lesbian, Gay, Bisexual, and Transgender
Health: Findings and Concerns.'' Journal of the Gay and Lesbian Medical
Association 4.3 (2000).
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Transgender people are significantly more likely to be unemployed
than the general population. Because employment is tied to health
insurance in the U.S., transgender Americans likewise face a high rate
of being uninsured. Studies in major metropolitan areas, including New
York City, San Francisco and Washington, DC, have found fully half of
the transgender community is uninsured compared to around 12% among
non-transgender people. These rates become even higher for transgender
people of color.
The Centers for Disease Control and Prevention (CDC) and the
Substance Abuse and Mental Health Service Administration (SAMHSA) agree
with the Coalition's position that employment protection is linked to
better health outcomes. Both government agencies state that the lack of
access to employment and the social marginalization created through
denial of employment can lead to higher rates of physical and mental
illnesses for transgender people.
In a fact sheet, the CDC posits that the lack of employment
protections lead to an increased risk of HIV infection for transgender
people. According to the CDC, the social marginalization of transgender
people can result in the denial of employment, and ``transgender people
face stigma and discrimination, which exacerbates their HIV risk. The
stigma of transgender status is associated with lower self-esteem,
increased likelihood for substance abuse and survival sex work in [male
to female] MTFs, and lessened likelihood of safer sex practices.'' \ii\
The HIV rate among transgender people, especially transgender women, is
between 14 and 69 percent.\iii\
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\ii\ ``HIV/AIDS and Transgender Persons'' Centers for Disease
Control and Prevention. Accessed online at http://www.cdc.gov/
lgbthealth/pdf/FS-Transgender-06192007.pdf.
\iii\ Ibid.
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According to SAMHSA, a lack of civil rights protections--including
employment nondiscrimination statutes--leads to an increase in mental
illness and substance abuse in the transgender community.\iv\ In A
Provider's Introduction to Substance Abuse Treatment for Lesbian, Gay,
Bisexual, and Transgender Individuals, the agency makes the direct link
between drug and alcohol usage by the transgender community and lack of
employment protections. SAMHSA also states, ``additional relapse
triggers or significant clinical issues for transgender clients might
include the inability to find, engage in, or maintain meaningful or
gainful employment simply because they are transgender.'' \v\
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\iv\ Leslie, Dominique Rosa et al. ``Clinical Issues With
Transgender Individuals.'' A Provider's Introduction to Substance Abuse
Treatment for Lesbian, Gay, Bisexual, and Transgender Individuals,
Substance Abuse and Mental Health Services Administration, 2007.
\v\ Ibid.
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Lack of insurance results from lack of employment, which results
from stigma and discrimination bolstered by a gap in the laws for
protecting civil rights. Being chronically uninsured or underinsured
means transgender people do not access preventative care, such as
screenings for heart disease, high blood pressure and cancers. In turn,
this lack of preventative care increases the morbidity rates and
shortens the lifespan of many transgender people resulting in the
disparities we see in health outcomes for this community compared to
the general public. This is especially true for transgender people of
color.
The Committee has undertaken an important step towards eliminating
health disparities by holding today's hearings. While employment
protections are not a cure all, they are certainly an important step in
improving the health and well-being of transgender people. The
Coalition asks that Congress continue this work by enacting legislation
that helps transgender people achieve employment free from the fear of
discrimination.
______
Prepared Statement of the Transgender Law Center
Mr. Chairman and Members of the Subcommittee: The Transgender Law
Center (TLC) is a California state-wide, non-profit civil rights
organization advocating for transgender communities. Created in
response to the overwhelming discrimination that transgender people and
our families face in nearly every institution in California, we utilize
direct legal services, education, community organizing, and policy and
media advocacy to overcome this discrimination and help the state
become one where every person's gender identity is respected and
supported. TLC is honored to submit this statement regarding pervasive
discrimination against transgender Americans in the workplace, and we
thank you for your consideration of this important issue.
Our statement draws on the daily contact we have with transgender
community members, as well as our advocacy work and research. Every
year we assist nearly 1,000 transgender individuals with legal issues.
Approximately 10% of our clients contact us regarding discrimination or
harassment in the workplace. Countless others contact us with issues
that directly affect their ability to secure and maintain employment,
such as access to health care, identity documents, and housing.
While limited research exists on transgender people in the
workplace, all available studies and anecdotal evidence point to
extremely disproportionate unemployment and underemployment among
transgender people. This bleak employment picture is largely a
consequence of the discrimination that too many transgender people
experience in employment, education, and other areas that affect
transgender people's ability to secure and maintain employment.
The attached ``Good Jobs NOW!'' report, supported by the Women's
Foundation of California and conducted by TLC and the San Francisco Bay
Guardian, provides sorely needed data on the economic reality
experienced by transgender people and their families. In early 2006,
194 self-identified transgender people living, working, or looking for
work in San Francisco were surveyed. The outcomes are stark.
Among ``Good Jobs NOW!'' respondents, nearly 60% earned under
$15,300 annually and only 8% earned over $45,900. Forty percent did not
have a bank account of any kind. Only 25% were working full-time, with
16% working part-time, and nearly 9% reporting no source of income.
Over 57% percent reported experiencing employment discrimination, but
as few as 12% took any kind of action and only 3% filed an
administrative or civil complaint.
These findings are made even more compelling by the fact that the
survey was conducted exclusively in San Francisco. Both San Francisco
and California have strong employment non-discrimination laws and
regulations that support safer and more effective integration of
transgender people into the workplace. However, a lack of Federal
protections has a tremendous effect on the transgender community
nation-wide. Every week transgender people living in states without
protective legislation call TLC. These hard working Americans have
little to no recourse in their home states.
Allowing employers to make decisions about hiring, firing,
promotions, and discipline based on a worker's identity goes against
America's core value of equal opportunity. All too often, we see
transgender Americans forced out of successful careers when they
express their gender identity. Many transgender people fear and
experience discrimination and therefore must either hide who they are,
to the detriment of their health; leave jobs they love in order to
transition without risking termination; or face rampant harassment and
discrimination in their current workplace. Federal protection from
discrimination and harassment based on gender identity would liberate
the transgender community from this stark reality. Such legislation
would allow transgender Americans to continue contributing to our
country's workforce without fear of being terminated simply because of
who we are.
We urge the Subcommittee to recognize this issue of basic fairness.
Transgender Americans deserve to be ourselves in a workplace where we
are judged exclusively on our ability to do our jobs. Work is an
integral part of our lives, of who we are, just like our gender. No
American should have to choose between their gender, and making a
living.
______
[Additional submission from Ms. Sanchez follows:]
Prepared Statement of the Gay, Lesbian and Straight Education Network
Chairman Andrews, Ranking Member Kline, members of the Subcommittee
and members of the full Committee; thank you for the opportunity to
submit testimony for this important hearing on ``An Examination of
Discrimination Against Transgender Americans in the Workplace''. We
appreciate your examination of this important issue and the role that
Congress can play in addressing discrimination against transgender
Americans.
The Gay, Lesbian and Straight Education Network (GLSEN) is the
leading national education organization focused on ensuring safe
schools for all students. Established nationally in 1995, GLSEN
envisions a world in which every child learns to respect and accept all
people, regardless of sexual orientation or gender identity and
expression. We strive to ensure that each member of every school
community is valued and respected regardless of sexual orientation or
gender identity and expression.
While research on the scope of discrimination against transgender
employees is limited, experience tells us that the effects of such
discrimination are dramatic. Transgender Americans are community
members, educators and parents. When an employee is forced from their
job because of their gender identity, everyone in their community,
workplace and family feels the effects.
When a transgender individual loses their job, their children may
suffer the economic adversity and educational impact that any student
experiences when their parents lose a job. However the unique
employment challenges faced by transgender individuals pose additional
threats to the continuing education of their children.
Like all Americans, educators and other school staff deserve to be
protected fully from job discrimination. Experience has shown us that,
like all workers, educators who express their true gender identity
remain as competent and able to serve as before they do so. Time and
again, educators who have expressed their gender identity have returned
to the classroom and continued to serve their community.
This past school year, Genna Suraci, a veteran principal from Port
Ewen, NY, began expressing her true gender identity after working with
her Superintendent and School Board to ensure a smooth transition.
Genna stated that ``with the right parameters in place, we were able to
set a pace that allowed us to move forward as if there were no real
changes. While the school community had questions, we addressed them
and continued to focus on educating our kids.''
Consistent with our nation's renewed focus on the academic success
of all students, we must continue to ensure that all students have
opportunities to learn from experienced and qualified educators. By
enacting federal employment protections based on gender identity,
Congress will take a tangible step to retain skilled, experienced and
qualified educators who happen to be transgender.
Ensuring that everyone feels safe and is treated fairly, be it at
school or work, is at the very foundation of a society that values and
respects all of its people. All Americans deserve the chance to have a
job and support themselves and their families, and to contribute to
their community. We urge Congress to do the right thing and show it
believes in basic rights for all of the people it represents.
GLSEN urges you to recognize the dramatic impact that workplace
discrimination against transgender individuals has on transgender
employees, their families and communities; and to include gender
identity in future expansions of federal employment protections.
We urge the Subcommittee to continue to explore and seek out
opportunities to address this important issue. One concrete way to do
so is to ensure that any legislation to expand federal employment
protections includes actual or perceived gender identity and
expression.
Again, GLSEN thanks you for your attention to this important issue
and for the opportunity to provide this testimony for the record. We
are available to address any questions that you may have.
______
[Whereupon, at 1:50 p.m., the subcommittee was adjourned.]