My Transgender Discrimination, and What I Did About It

It ain’t easy being trans. It is especially difficult to be known to be trans, or seen to be trans. Every day we face barriers to opportunities cisgender folk take for granted, such as “service with a smile,” rather than “service with snarky sarcasm” – or no service at all. It is true that the lot of the trans community has improved immensely since I transitioned in 1992: before I was eventually fired from my job as a social worker, I was either snubbed by my coworkers or harassed by them or denied many of the privileges extended to my coworkers. I was made to be less than my colleagues, who were no more qualified to do the work required as I was. My supervisors did absolutely nothing to get the situation under control; in my mind, it was because they wanted to have me walk myself off the job. They did not know how stubborn I was, nor how deep my sense of justice and doing the right thing ran. Ultimately, they did put me on administrative leave, and discharged me a few weeks later. When I complained, their lawyer said I had no civil rights. I came to find out he was correct.

  I worked at an agency that distributed federal funds for retraining displaced workers for new trades and skills. Our area of Pa. was located in a region that was designated as high-unemployment. I had been hired to represent the agency stationed within the Job Center (formerly the unemployment office) and recruit applicants to the program. I would also take information from interested candidates and determine whether they qualified for funding. It was a nice gig; I sat at my desk in the back of the wide open office space, made up flyers to pin on the bulletin board at the front of the room. I would meet maybe 5 or 6 serious applicants a day. I got lots of recruits to sign up. I was good at my job and had no complaints from anyone I’d interviewed, nor any complaints by my coworkers. I was a valued employee.

Since January 1992, I’d been involved in a self-help recovery program, and with the clarity of thought brought on by sobriety, I decided I needed to resolve my life-long gender issues and started seeking out medical and psychological practitioners who might help me in my efforts. I found what I was looking for, and I set myself to starting my transition. And so it was that on July 2, 1992, I sat in the men’s room with a prescription bottle in hand and shook out one estradiol tablet into my other hand and took it. And things were never the same since. I then went to my supervisor’s office and told her what I was doing and how it would be done. She said she didn’t know how the Director would react, but she would let me know how she reacted afterward.

The Director told my supervisor that I would absolutely not be permitted to dress as a woman on the job nor could I remain in my position if it became obvious what I was doing (I did want to have breasts, so . . . . ) I do believe my supervisor would have let me transition on the job if it had been up to her. But she wasn’t headstrong enough to butt heads with the director, and the rancor of some of my coworkers. (which was funny, because the office was staffed 100% by women – except me).

But you never know where you might find allies. In my case, it was the woman who ran the personnel office and ensured corporate compliance with the provisions federal law regarding both the treatment of employees and program participants. The Director had actually drafted a dress code that applied only to me. And in the end, the corporate compliance officer gave me a crash course on what could and couldn’t be done under Labor Department and federal laws. I filed an administrative action with the EEOC alleging sex discrimination under Title VII. After doing some research, I discovered the body of precedence was against me. But not all was lost for me. 

After I was fired, I filed for unemployment benefits and was denied UC benefits on the basis of Willful Misconduct, because I continued to crossdress (within prescribed guidelines set by the Director) and appealed, The denial was overturned because I provided enough evidence to establish that crossdressing is an important aspect to transitioning. The Commonwealth Court accepted that reasoning and ruled that crossdressing at work is not grounds for dismissal, if the employee is under clinical care for gender dysphoria It set precedence. My first day in Court, and first victory. But, unfortunately, word got around the social services circles and I could not find work anywhere. I hired an attorney and we filed a $3,000,000 lawsuit against my former employer and some other individual defendants. But the bar to Title VII protection to transgender plaintiff. seemed insurmountable. But my attorney noticed something in me that would change my life. I’d been working on some of her other cases to help pay my legal bill. One day she said to me, “you know, you have a knack for this. Have you ever thought of becoming an attorney?” 

After some denial, I found myself sitting in my very first Legal Process class at Temple Law School. I was attentive to all my classwork, got good grades and a spot on Law Review in second year. I started kicking around something that was in my head for a while after I was introduced to the Supreme Court case Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). Up until then, the seminal case on transgender discrimination was Holloway v. Arthur Andersen 566 F.2d 659 (9th Cir. 1977) In discussing the meaning of “sex” as used in Title VII, the Holloway court declared that Congress intended the word “sex” in Title VII should have it’s ordinary meaning, and that Title VII did not extend protection to transsexuals, reasoning that ”Congress’ purpose in enacting the statute was only to ensure that men and women are treated equally.”

Hopkins, on the other hand, expanded the ambit of the word “sex” to include the constellation of stereotypes that follow from being male or female. The Court’s opinion established that gender stereotyping is actionable as sex discrimination. This resonated with me, in that I perceived that discrimination against transgender people is because the very essence of being transgender is expressing gender in a manner that is inconsistent with our expectations, given a person’s biological sex. The mismatch of stereotypical gender roles: men should look and act like men; women should look and act like women, and there’s something wrong with someone who shatters those stereotypes. Once I made this useful connection for transgender litigants, I wrote an article for publication in Temple Law Review, describing how Title VII could protection against discrimination: Reevaluating Holloway: Title VII, Equal Protection, and the Evolution of a Transgender Jurisprudence, 70 Temp. L.Rev 283 (1997).

So even though I had graduated and taken a job with a judge in Wilkes-Barre, I knew I was on the right path when the EEOC office in Philadelphia sent me a right to sue letter regarding one of the complaints I’d filed with them while still living in my former hometown. I took the reins and filed the lawsuit against my former employer – seven years after the deed. And so one day in mid-summer 1999, I found myself driving from Wilkes-Barre to federal court in Erie, Pa. to defend my case against a motion to dismiss filed by the defendant. Their argument was that Title VII didn’t cover “transsexuals.” I had just been barred, and when I got before the judge, I argued from my own playbook, and after expressing some lingering reservation, the Judge saw the logic of my argument and ruled in my favor. The newby lawyer had prevailed over the seasoned corporate attorney.

The next day, my judge’s secretary came into my office and said I had a call. I picked up the phone and ended up negotiating a settlement agreement with my opponent from the day before. I wasn’t greedy, but I had needs – I ended up settling for a sum that afforded me airfare to and from Montreal, and medical costs while I stayed at the clinic for a little snip and tuck and recovery at the residence following surgery, with enough left over to open my own practice.

Over the years since then I’ve handled a handful of transgender discrimination cases, including the first Title VII transgender discrimination case brought against the City of Philadelphia in early 2009, which settled. Always, the defendants argued the same old defense that a judge in Erie had rejected 10 years earlier.

And so you can imagine my surprise when, in 2012, the EEOC ruled, in Macy v. Holder that Title VII protects transgender individuals under sex discrimination. As the EEOC made clear:

Title VII prohibits discrimination based on sex whether motivated by hostility, by a desire to protect people of a certain gender, by assumptions that disadvantage men, by gender stereotypes, or by the desire to accommodate other people’s prejudices or discomfort. (citations omitted)

And now, the case of R.G. & G.R. Harris Funeral Homes Inc. v. EEOC, currently before the U.S. Supreme Court, has the potential to unwind all the progress made for transgender civil rights within the last twenty-two years.

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Category: Legal