Gender Identity and Expression Issues on the
Higher Education Campus
Presented by
Michael J. DePonte, Esq.
Jackson Lewis, P.C.
512.362.7100
depontem@jacksonlewis.com
Texas Higher Education Humans Resources Association Winter Conference
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About the Firm
• Represents management exclusively in every aspect
of employment, benefits, labor, and immigration law
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WHAT IS SEXUAL STEROTYPING
• Whether or not individuals identify as male or female,
gay, lesbian, bisexual, heterosexual or transgender,
many people transcend traditional gender roles. For
example:
– A female with short hair is called "sir" in public;
– A boyish-looking lesbian receives curious glances or angry
stares in the ladies room;
– A gay teenager is reprimanded for "not acting like a man."
• All of these individuals face bias based on
preconceived notions of gender – what it means to
look and act like a man or a woman.
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Gender Identity & How It Differs From
Gender Expression
• Gender identity is a person’s innate, internal sense
of his or her gender.
• Gender expression is the way in which a person
presents his or her gender to the outside world.
• Transsexual is a person who changes or seeks to
change their physical characteristics to a gender
different from their biological sex.
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Sexual Orientation vs. Transgender
• Sexual Orientation is an individual's physical and/or
emotional attraction to the same or opposite gender.
• Transgender is an umbrella term referring to a
person whose gender identity presentation falls
outside of stereotypical gender norms and may seek
to change their physical characteristics through
hormones, gender reassignment surgery or other
actions.
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Transitioning
• Transitioning is the process through which a person
modifies their physical characteristic/manner of
expression in order to bring their internal gender
identity in harmony with their external gender
expression, such as the taking of hormones, gender
reassignment surgery, covering certain body parts,
changing speech patterns, hair, wardrobe, makeup or
other changes.
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What Other Expressions Denote Sex
Stereotypes?
• She was told she should “show her softer side” more
often.
• At the meeting, she “took it like a man.”
• He needed to “be his own man.”
• He’s just being a “sissy.”
• “Man up.”
• He/She throws like a girl.
• Comparisons:
– Strong men vs. domineering women.
– Assertive men vs. aggressive women.
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What Other Expressions Denote Sex
Stereotypes?
• She was told she should “show her softer side” more
often.
• At the meeting, she “took it like a man.”
• He needed to “be his own man.”
• He’s just being a “sissy.”
• “Man up.”
• He/She throws like a girl.
• Comparisons:
– Strong men vs. domineering women.
– Assertive men vs. aggressive women.
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Overview Of Federal
Gender Discrimination Laws (Cont.)
• There is no federal law that protects against
discrimination based on gender identity or expression.
• As currently drafted, the Employment NonDiscrimination Act (“ENDA”) prohibits sexual
orientation discrimination and discrimination based on
gender identity or expression.
– November 7, 2013 – Passed by Senate
– Noverber 12, 2013 - Referred to the Committee on Education
and the Workforce, and in addition to the Committees on
House Administration, Oversight and Government Reform,
and the Judiciary
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Overview Of Federal
Gender Discrimination Laws (Cont.)
• Title VII of the Civil Rights Act of 1964 prohibits
discrimination “because of . . . sex.”
• Most state and local anti-discrimination or human
rights laws include a similar prohibition on sex
discrimination.
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Overview Of Federal
Gender Discrimination Laws (Cont.)
• The Americans with Disabilities Act (“ADA”) excludes
“transvestism, transsexualism, pedophilia,
exhibitionism, voyeurism, gender identity disorders
not resulting from physical impairments, or other
sexual behavior disorders” from coverage.
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Overview Of Federal
Gender Discrimination Laws (Cont.)
• Initial view from federal courts was that discrimination
against transgender plaintiffs is not prohibited
discrimination “because of . . . sex.”
– See, e.g., Ulane v. Eastern Airlines, Inc., (7th Cir. 1984)
(holding MTF transsexual pilot not protected from
discrimination under Title VII).
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Price Waterhouse v. Hopkins (1989)
• U.S. Supreme Court decision in Price Waterhouse v.
Hopkins, 490 U.S. 228 (1989) called these rulings into
question.
• Held that a woman who failed to conform to her employer’s
gender stereotypes regarding how women should look and
act was protected from discrimination by Title VII.
• Hopkins, a female accountant, was advised by certain
partners in the firm that she could improve her partnership
chances if she would “walk more femininely, talk more
femininely, dress more femininely, wear make-up, have her
hair styled, and wear jewelry.”
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Price Waterhouse v. Hopkins (1989) (Cont.)
• Hopkins sued under Title VII for sex discrimination
after she resigned following the firm’s denial of
partnership.
• Justice Brennan, writing for the plurality, held that “in
the specific context of sex stereotyping, an employer
who acts on the basis of a belief that a woman cannot
be aggressive, or that she must not be, has acted on
the basis of gender.”
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Post-Price Waterhouse:
• State and local laws prohibiting discrimination based
on disability may provide a significant source of
protection for transgender employees.
• The term “disability” in anti-discrimination laws refer to
people with a wide range of serious health conditions
and also is meant to protect individuals from
discrimination based on stereotypes and ignorance
about medical conditions and disability.
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Post-Oncale Gender Stereotyping &
“Feminine Men”
Nichols v. Azteca Restaurant Enterprises (9th Cir. 2001)
• Antonio Sanchez, a male restaurant employee, was
subjected to a relentless campaign of insults, namecalling, and vulgarities, such as being referred to as
“she” and “her;” being mocked for walking and
carrying his serving tray “like a woman;” and being
taunted as a “f___king female whore.”
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Post-Oncale Gender Stereotyping &
“Feminine Men” (Cont.)
Nichols v. Azteca Restaurant Enterprises (9th Cir. 2001)
• The Ninth Circuit held, “the systematic abuse directed
at Sanchez reflected a belief that Sanchez did not act
as a man should act… We conclude that this verbal
abuse was closely linked to gender.”
• The Ninth Circuit found the employer liable under Title
VII and the state of Washington’s anti-discrimination
statute:
– “...Price Waterhouse applies with equal force to a man who is
discriminated against for acting too feminine.”
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Pregnancy Based Stereotypes
Back v. Hastings on Hudson Union Free School District (2d Cir. 2004)
• Elena Back was a psychologist at an elementary
school. She was placed on a three-year tenure-track
when she was hired.
• During her first two years of employment, she
received excellent performance reviews from her two
female supervisors and was repeatedly told she
would receive tenure.
• As Back’s tenure drew closer, however, she took a
three-month maternity leave.
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Pregnancy Based Stereotypes (Cont.)
Back v. Hastings on Hudson Union Free School District (2d Cir. 2004)
• After her return from maternity leave, Back’s
supervisors began criticizing her performance and
making comments about her devotion to the job:
– She was asked how she was “planning on spacing her
offspring.”
– She was told she would not “show the same level of
commitment [she] had shown because [she] had little ones at
home” and that the job was “not for a mother.”
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Pregnancy Based Stereotypes (Cont.)
Back v. Hastings on Hudson Union Free School District (2d Cir. 2004)
• Back sued after she was denied tenure and her
employment was subsequently terminated.
• Citing Price Waterhouse v. Hopkins, the court held
that employment decisions based on gender
stereotypes constitute gender discrimination:
– “Notions that mothers are insufficiently devoted to work, and
that work and motherhood are incompatible, are properly
considered to be themselves, gender-based.”
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The Reasonable Woman Standard
EEOC v. National Education Association (9th Cir. 2005)
• Three female employees filed EEOC charges against
National Education Association-Alaska (NEA) alleging
the organization created a sex-based hostile work
environment and constructively discharged one of
them.
• Female employees alleged a male supervisor with
little or no provocation, shouted and screamed at
them, used foul language, invaded their personal
space and used threatening physical gestures.
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The Reasonable Woman Standard
(Cont.)
EEOC v. National Education Association (9th Cir. 2005)
• The Ninth Circuit Court of Appeals held that a
reasonable juror could conclude that the supervisor’s
conduct, which was directed primarily at women, was
“because of sex,” within the meaning of the statute.
– The real question is whether the behavior “affected women
more adversely than it affected men.”
– The questions can be analyzed in two ways: i) is the effect of
the behavior qualitatively different; and ii) is the amount of the
behavior quantitatively different.
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The Reasonable Woman Standard
(Cont.)
EEOC v. National Education Association (9th Cir. 2005)
• Under the reasonable woman standard devised in an
earlier case, Ellison v. Brady, 924 f. 2d 872 (9th Cir.
1991), women found the behavior is more intimidating
than men did and therefore, the conduct affects
women differently.
– The Director’s intent is irrelevant--what matters is the effect of
the behavior, both subjectively and objectively.
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Transgender v. Sexual Orientation
Enriquez v. West Jersey Health Systems (N.J. 2001)
• Enriquez began her external transformation from male
to female. She shaved her beard, waxed her
eyebrows, pierced her ears, and began growing
breasts. A few months later, Enriquez manicured and
polished her nails, grew long hair and wore a ponytail.
• Later that year, Enriquez was diagnosed with gender
dysphoria, a gender identity disorder listed in the
DSM-IV.
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Transgender v. Sexual Orientation
(Cont.)
Enriquez v. West Jersey Health Systems (N.J. 2001)
• Enriquez underwent surgery. Three executives
confronted her about their discomfort over her
transformation. One told her to “stop all this and go
back to your previous appearance!”
• The executives terminated her contract and refused
to enter into a new contract, stating “No one is going
to sign this contract unless you stop this business that
you’re doing.”
• The Court held that there was gender discrimination.
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Sexual Reassignment Surgery
Goins v. West Group (Minn. 2000)
• Must one undergo sexual reassignment surgery to be
protected under state law?
• Goins, a transgender employee, claims West Group
discriminated against her and harassed her on the
basis of her sexual orientation by designating
restrooms on the basis of biological gender.
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Sexual Reassignment Surgery (Cont.)
Goins v. West Group (Minn. 2000)
• Goins was born biologically male.
• Since 1994, Goins has taken female hormones and
presented herself to the public as a female since
1995.
• In October 1995, Goins legally changed her name.
Goins referred to herself as transgender or transidentified.
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Sexual Reassignment Surgery (Cont.)
Goins v. West Group (Minn. 2000)
• In 1997, Goins used an employee restroom
designated for women. Two biological females
complained to a supervisor.
• The HR Director deemed the two female employees’
complaint to be a complaint of a “hostile work
environment” and decided to enforce the policy of
restroom usage according to biological gender.
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Sexual Reassignment Surgery (Cont.)
Goins v. West Group (Minn. 2000)
• The HR Director also decided to allow Goins the use
of a single-occupancy restroom on a different floor or
one in another building.
• Goins objected, proposing instead the complaining
employees be educated regarding transgender
individuals. Goins continued to use the restroom.
• In 1998, Goins resigned, claiming undue stress and
hostility.
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Sexual Reassignment Surgery (Cont.)
Goins v. West Group (Minn. 2000)
• The court held that an employee born male who
changed her legal name to that of a female and took
female hormones to identify herself as a female, even
though she elected not to undergo sexual
reassignment surgery, was protected under that
state’s anti-discrimination law protecting persons
whose self-image or identity is not traditionally
associated with his/her biological sex.
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Macy v. Holder
(EEOC Apr. 20, 2012)
• Job applicant Mia Macy applied for a job at the
Bureau of Alcohol, Tobacco, Firearms, and Explosives
(“ATFE”).
• When Macy applied for a job, she presented as male.
• Shortly thereafter, Macy informed ATFE that she was
transitioning from male to female.
• ATFE informed Macy that another applicant had been
hired because that applicant was farther along in the
background check process.
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Macy v. Holder (Cont.)
(EEOC Apr. 20, 2012)
• Macy filed a complaint against ATFE with the EEOC
alleging that the reasons proffered for not hiring her were
pretextual and that the true reason was because of her
“sex, gender identity (transgender woman) and on the
basis of sex stereotyping.”
• The EEOC reasoned that Macy could establish a viable
sex discrimination claim on the ground that:
– ATFE believed that biological men should present as men and
wear male clothing; or,
– ATFE was willing to hire a man, but not a woman.
• Either way, the EEOC concluded, transgender
discrimination is discrimination “based on...sex” and
violates Title VII.
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Other Significant Cases
• Smith v. Salem, Ohio, 378 F.3d 566 (6th Cir. 2004):
• Fireman Jimmie Smith, transsexual diagnosed with
GID questioned by supervisors, told “not masculine
enough,” and subjected to psychological exams by
department.
• Sixth Circuit held “[b]y definition, transsexuals are
individuals who fail to conform to [gender] stereotypes
…” thus a claim of discrimination based on Plaintiff’s
identification as a transsexual was actionable.
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Other Significant Cases
Schroer v Billington, 424 F.Supp.2d 203 (D.C. 2006)
• DC District Court found that Schroer had been
discriminated against because of sex in violation of
Title VII. Schroer, who was undergoing the process to
transition from male to female, interviewed as a male
and was offered position.
After hiring, but before starting work, she told
decision-maker she would use her female name and
dress in traditional female clothing. Next day, the
decision-maker withdrew the job offer, stating that
Schroer would not be a "good fit" for the Library of
Congress.
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Other Significant Cases
• Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011):
Glenn claimed her constitutional rights were violated
because the employer terminated her employment
due to her medical condition, known as Gender
Identity Disorder. The testimony provided direct
evidence that the employer acted on the basis of the
employee's gender non-conformity.
•
Case centered on the Fourteenth Amendment's equal
protection clause, not Title VII, but the Eleventh
Circuit's decision could have greater implications.
Court stated that discrimination against individuals
because they don't conform to socially prescribed
gender roles is barred by Title VII.
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State Anti-Discrimination Laws
Protecting Transgender Employees
• Seventeen states (California, Colorado, Connecticut,
Delaware,
Hawaii,
Illinois,
Iowa,
Maine,
Massachusetts, Minnesota, Nevada, New Jersey,
New Mexico, Oregon, Rhode Island, Vermont and
Washington) and the District of Columbia include
gender identity and/or gender expression in their
employment non-discrimination statutes.
• Courts and human rights agencies in Connecticut,
Colorado, Hawaii, Massachusetts, New Hampshire
and New York have ruled transgender employees are
protected by their state anti-discrimination laws.
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Local Anti-Discrimination Laws
• Ordinances prohibiting workplace discrimination on
the basis of gender identity or expression are even
more prevalent at the local level:
– Austin, Baltimore, Boston, Cincinnati, Cleveland, Charleston,
Dallas, Detroit, Miami Beach, Louisville, NYC, Pittsburgh,
New Orleans, and Philadelphia.
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Discrimination & Harassment Of
Transgender Employees
• Examples of discriminatory and harassing conduct
regarding transgender employees:
– Refusal to hire in a position requiring customer interaction;
– Preventing appropriate restroom usage;
– Repeated failure to address an employee by his/her proper
name and pronoun (Mr./Ms., his/her);
– Invasive inquiries about medical history or genitalia;
– Allowing teasing or intimidating behavior.
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How To Stay In Compliance?
A thorough review of your specific
state and local laws.
This area of law is changing rapidly.
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What you need to do now…
• Educate HR personnel on how to handle gender
identity and expression issues
• Review your policies like grooming and attire
standards
• Make employment decisions transparently and
document the job-related reasons for employment
decisions
• Train employees to set aside traditional or
stereotypical notions of gender
• Promote an inclusive workplace culture
• Be prepared for expected changes in the law
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Gender Transition Plan
• When someone plans to present consistently as the
opposite sex:
– The HR professional (with assistance from in house counsel)
immediately schedules a meeting with the employee in
transition to begin to develop a transition plan and provide
information about the Company’s guidelines, expectations
and resources.
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Gender Transition Plan (Cont.)
The transition plan should address the following issues:
•
•
•
•
•
•
•
•
•
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Timeline
Dress code
Company resources
Identification changes
Security clearance issues
Facilities usage
Appropriate norms of conduct
Sensitivity training
Complaint procedures
Plan Modifications
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When Someone Transitions On
The Job…
Everyone transitions when a transgender person comes
out in the workplace. Transition is not just a practical
process, but it is inherently an emotional and
psychological process for everyone.
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Questions?
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THANK YOU!