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Given the historic stigma around making, circulating, and possessing overtly homoerotic images, the visual arts have been especially important for providing a socially sanctioned arena for depicting the naked male body and suggesting homoerotic desire.
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Mia Macy (left) with her wife Trish. Image courtesy Transgender Law Center.
In a significant ruling issued on April 20, 2012, the Equal Employment Opportunity Commission has held that gender identity discrimination is prohibited by Title VII of the Civil Rights Act of 1964. The decision was issued in Macy v. Holder, a case in which Mia Macy, a transgender woman who was denied employment with the Department of Alcohol, Tobacco, Firearms and Explosives (ATF) after she revealed her intention to transition from male to female, claimed that she suffered discrimination because of her gender identity.
As Chris Geidner reports in MetroWeekly, the decision "opens the door to employment protection for transgender Americans."
The ruling, based on a number of federal appellate and trial court opinions equating gender-identity discrimination and sex discrimination, makes clear that Title VII prohibits both sex and gender-identity discrimination. Issued without dissent by the five-member, bipartisan Commission, it states unambiguously "that claims of discrimination based on transgender status, also referred to as claims of discrimination based on gender identiy, are cognizable under Title VII's sex discrimination prohibition."
The decision, which may be found here, states that "When an employer discriminates against someone because the person is transgender, the employer has engaged in disparate treatment related to the sex of the victim. This is true regardless of whether an employer discriminates against an employee because the individual has expressed his or her gender in a non-stereotypical fashion, because the employer is uncomfortable with the fact that the person has transitioned or is in the process of transitioning from one gender to another, or because the employer simply does not like that the person is identifying as a transgender person."
The decision is binding on all federal agencies and departments and will govern all EEOC enforcement and litigation activities throughout the country.
Masen Davis, head of the Transgender Law Center (TLC), which brought the case on behalf of Mia Macy, described the decision as a "big leap forward," because now "transgender people who feel they have faced employment discrimination can go into any of [the Commission's] 53 offices and the EEOC will consider their claims. What's more, the EEOC could take action itself to sue the employer for discrimination."
He added, "Given that transgender people do not have employment protections in the vast majority of states, this creates a whole new fabric of legal support for our community."
The TLC first pursued Macy's complaint through the Office of Equal Opportunity of the ATF, which is responsible for considering complaints of discrimination by the agency. When the ATF's equal opportunity officer denied that Title VII applied to transgender employees, the TLC filed suit, asking the EEOC to clarify the law.
In reaching its decision, the EEOC relied heavily on two Supreme Court decisions: Price Waterhouse v. Hopkins, a 1989 ruling that concluded that "gender must be irrelevant to employment decisions"; and Oncale v. Sundowner Offshore Services, which expanded protections under Title VII to cover the sexual harassment of males.
The EEOC decision also followed recent precedents set by the U.S. Court of Appeals for the Sixth Circuit and the U.S. Court of Appeals for the Eleventh Circuit that have also concluded that Title VII's prohibition of sex discrimination includes discrimination on the basis of gender identity. [For a discussion of the Eleventh Circuit's recent decision, see this blog post.
Macy's case has now been sent back to the ATF for reconsideration in light of the EEOC decision, but either the agency or Macy now have 30 days to ask the commission to reconsider its decision.
Shannon Minter of the National Center for Lesbian Rights, described the EEOC decision as "huge."
"To have just a clear, definitive EEOC ruling that Title VII protects transgender people gives us so much more certainty and security and solid, reliable legal protection," Minter explained. "It sends a really strong message to all employers and I think will have a dramatic impact on business culture. This has such a strong legitimating impact in many different arenas."
In a statement issued by the Transgender Law Center, Macy responded to the ruling as follows: "As a veteran and a police officer, I've worked my whole career to uphold the values of fairness and equality. Although the discrimination I experienced was painful both personally and financially, and led to the loss of my family's home to foreclosure, I'm proud to be a part of this groundbreaking decision confirming that our nation's employment discrimination laws protect all Americans, including transgender people. I'm grateful for the help of Transgender Law Center, which believed in me from the start and helped guide me through this process. No one should be denied a job just for being who they are."