As the Justice Department takes up the case of Rachel Tudor, transgender rights advocates are celebrating a legal turning point that lesbian, gay and bisexual people are still waiting to see: federal civil rights protection against workplace discrimination.
On Monday, the DOJ filed a lawsuit alleging that Southeastern Oklahoma State University violated a civil rights law when it fired Tudor, a transgender woman. Tudor was denied tenure in 2010, despite positive recommendations from the tenure review board and her department chair.
The case marks the first time the Department of Justice has brought a lawsuit claiming that Title VII of the Civil Rights Act of 1964 protects transgender people from workplace discrimination.
“Discrimination against transgender people in the workplace is rampant,” says Hayley Gorenberg of Lambda Legal, a civil rights firm that focuses on lesbian, gay, bisexual and transgender (LGBT) issues. The DOJ's action will resonate throughout the legal world, Gorenberg says. “It sends a clear message to employers around the country about how the federal government sees that our federal protections should be applied.”
Gaps In The Legal Framework
But the lawsuit also reveals significant gaps in how legal protections around sexual orientation and gender identity have evolved at the federal level. Though courts increasingly consider gender-identity discrimination to fall under the purview of civil rights law, similar arguments around sexual orientation haven’t yet taken hold.
“There has been a split in the court decisions about covering sexual orientation discrimination as sex discrimination under law,” Gorenberg says. Firing someone for being transgender? That’s a Civil Rights Act violation, the Justice Department argues. Firing someone because they are gay? It’s less clear.
In December, Attorney General Eric Holder announced that the law barring sex discrimination “encompasses discrimination based on gender identity, including transgender status.” The memo, which followed arguments the Equal Employment Opportunity Commission has pushed since 2012, failed to mention sexual orientation.
Legislative attempts since the mid-1970s to bring sexual orientation under the civil rights umbrella have fallen short. The most recent bid to prohibit workplace discrimination against LGBT people – the Employment Non-Discrimination Act – has repeatedly sputtered. State laws prohibit discrimination on the basis of gender identity or sexual orientation in 22 states.
To H Kapp-Klote, a representative with the LGBT rights group GetEqual, the lawsuit gives advocates hope that sexual orientation will also soon be considered under sex discrimination law. “Gender identity is often just seen as, ‘Are you transgender or not?’ ” says Kapp-Klote. “But it’s much broader than that.”
A 'Grave Offense'
According to the lawsuit, when Tudor was hired in 2004, the English professor presented as a man and went by a traditional male name. When she told superiors in 2007 that she would be transitioning from male to female, university officials allegedly reacted in disgust.
The school’s vice president for academic affairs, Douglas McMillan, was particularly put off, according to the lawsuit. Tudor was informed that her lifestyle was a “grave offense” to the vice president’s religious sensibilities, the lawsuit says.
The tenure review board and the English department chair recommended Tudor’s promotion in 2009. But the university’s top brass denied it, offering little in the way of explanation, the lawsuit claims. A male professor initially denied tenure, meanwhile, was given some pointers and successfully reapplied, the DOJ says.
As Tudor reapplied for tenure and filed grievances, other faculty offered their support. Just before she was terminated for failing to secure tenure in 2011, Tudor won the Faculty Senate Recognition Award for Excellence in Scholarship.