Transgender People: The Next Frontier in Civil Rights

Being fired for "gender non-conformity" is a violation of the constitution, an important court recently found

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When Vandiver Elizabeth Glenn was fired from a state job in Georgia, she filed a lawsuit saying that she had been discriminated against for being transgender. Georgia civil rights laws do not cover transgender people, but a powerful federal court ruled last week that Glenn’s firing violated the U.S. Constitution. There was also a second major piece of transgender news last week: a new study shows that a growing number of major American companies are paying for their employees’ gender reassignment surgery. Taken together, the ruling and the study are strong indications that transgender rights are starting to enter the mainstream.

The backstory behind the court ruling: Glenn, an editor with the Georgia General Assembly, was born a biological male but long believed herself to be a woman. After being diagnosed with Gender Identity Disorder, an American Psychiatric Association-recognized condition, she began making the transition from male to female under medical supervision. Glenn was preparing for gender-reassignment surgery by living as a woman outside of work and presenting as a man at work. Eventually, she informed a colleague that she would soon begin coming to work as a woman, and when Glenn’s supervisor found out, he fired her.

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Since there is no federal or Georgia state statute that protects transgender people from job discrimination, Glenn went a different route. She sued under the Equal Protection Clause of the U.S. Constitution, claiming that she was a victim of sex discrimination, since she had been fired for failing to conform to the sex that her boss assumed her to be. It was a creative strategy, but there was legal precedent: in 1989, the Supreme Court ruled that it is sex discrimination to turn down a woman for partner in an accounting firm for coming off as too “macho.” Invoking this theory, Glenn argued that she had been fired for “gender non-conformity.”

A three-judge panel of the Atlanta-based U.S. Court of Appeals for the 11th Circuit agreed. Discrimination of the kind Glenn was subjected to, the court said, violates the Equal Protection Clause of the U.S. Constitution. At least three other federal appeals courts have reached similar conclusions, but this is the first appeals court in the Deep South to do so. The ruling is also notable because of one of the judges who signed on: William Pryor, a former Alabama Attorney General who was appointed to the court by George W. Bush. When Judge Pryor was nominated, gay-rights groups opposed him, in part because he had argued in 2003 that the Supreme Court should uphold state sodomy laws. Perhaps even more so than the opinion itself, the fact that judge Pryor agreed with it is an indication of how far transgender legal rights have come.

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Meanwhile, things are also changing in the workplace. Last week’s report from the Human Rights Campaign found that 207 of 636 major U.S. companies surveyed, or nearly one-third, covered the cost of gender-reassignment surgery for transgender workers. That number increased from just 85 a year earlier. When HRC began monitoring the issue a decade ago, no corporations covered the surgery. Among the corporations that added coverage this year are Apple, American Airlines and Chevron. In pop culture, transgender people are also becoming more visible and recognized. Chaz Bono, the only child of Sunny Bono and Cher, has put a celebrity face on being transgender — especially after he competed this season on Dancing with the Stars. Last month, Kelly Osborne, the television personality and daughter of rocker Ozzy Osbourne, apologized for her use of the word “tranny” and vowed to speak out against the “injustice” done to transgender individuals.

Transgender people have long been on the margins of society. That has even been true in the LGBT — or Lesbian, Gay, Bisexual, and Transgender — community, where debates have raged over how hard and how fast to push for transgender rights, which remain controversial. But that is true of any group that is still in the early stages of its civil rights struggle. If two of the nation’s most powerful institutions, federal courts and major corporations, are increasingly lining up behind transgender people, then change is undoubtedly on the way.