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Sunday, August 18, 2013
Commentaries by Barbara Skinner (“School board vote on orientation challenged,” July 7), Elijah Grossman (“A welcoming workplace for everyone,” July 14) and Joe Ivers (“Defending against discrimination,” Aug. 4) demand clarification of the legal and social ramifications of expanding classes covered by the county antidiscrimination statement to include sexual orientation and gender identity.
Two U.S. laws govern most discrimination based on sex, the basis for many (but not all) legal claims concerning workplace and school-based discrimination having to do with sexual orientation and/or transgender individuals. Title VII of the 1964 Civil Rights Act forbids discrimination based on race, color, sex, religion and national origin. Title IX of the Education Amendments of 1972 prohibits discrimination based on sex for any education program that receives federal funds.
The U.S. Equal Employment Opportunity Commission defines sex discrimination as follows: “Sex discrimination involves treating someone (an applicant or employee) unfavorably because of that person’s sex. Sex discrimination also can involve treating someone less favorably because of his or her connection with an organization or group that is generally associated with people of a certain sex.” The EEOC says, “Discrimination against an individual because that person is transgender is discrimination because of sex in violation of Title VII. . . . In addition, lesbian, gay, and bisexual individuals may bring sex discrimination claims.”
The Department of Education, which oversees Title IX, does not appear to have as extensive a definition of sex discrimination, so it is not clear if federal law protects transgender students under Title IX.
The EEOC website seems clear that discrimination against transgender people as a result of their transgender status is against Title VII. Thus, enumeration to include gender identity does not appear necessary to protect the rights of transgender individuals in Montgomery County or its schools, although perhaps better promotion and enforcement of existing law are to be encouraged.
Whether sexual orientation is as robustly protected by existing sex discrimination law is less clear. The EEOC website defining sex discrimination does not discuss sexual orientation, which suggests it is not protected. Sexual orientation can be linked to sex stereotypes. Such stereotypes are not entirely a thing of the past, and some discrimination of lesbians and gay men continues to be based on them.
Discrimination based on sex stereotypes is covered by Title VII, but there is no protection for sexual orientation, at least not in the way discrimination against transgender individuals is defined on the EEOC website. While some forms of discrimination against lesbians and gay men might be covered by Title VII and Title IX, not all of them appear to be. As a result, it may be necessary to enumerate sexual orientation as a protected class in order to ensure that gay and lesbian students and employees are not discriminated against on the basis of their sexual orientation.
Skinner’s concerns that her child and others will be forced to accept nontraditional identities and that anatomical males will use girls’ locker rooms are not automatic consequences of the law. There have to be local decisions concerning how the county and school system accommodate individuals whose rights are (or should be) protected under the law.
The question is this: What forms of accommodation are appropriate, given that transgender persons’ rights are already protected by Title VII of the Civil Rights Act and given that the rights of gay and lesbian individuals are protected in part by that law? We may want to consider the Americans with Disabilities Act, which mandates reasonable accommodations for disabled citizens and outlaws discrimination against the disabled, as a model for how to protect a class of people and recognize their special needs.
Local officials and community members may feel enumeration is the best way to support individuals who have experienced maltreatment. Examination of existing laws is one way of determining which classes really need the extra protection that enumeration implies. More important are decisions made that are based on existing law and possible changes to nondiscrimination statements like the Montgomery County Equal Employment Opportunity Statement. Such decisions are social actions that will demonstrate how individuals whose rights are already protected by existing federal statutes will be accommodated as community members and shielded from discriminatory behavior.
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