Prohibiting Discrimination Based on Gender Identity

Background

• Beginning with an ordinance passed in Minneapolis in 1975, 16 states, the District of Columbia, and more than 165 cities and counties have enacted laws prohibiting discrimination based on gender identity.  More than 500 private businesses across the United States, including 50% of Fortune 500 companies and 75% of Fortune 100 companies, have voluntarily adopted policies that prohibit discrimination based on gender identity. 

Why prohibit discrimination based on gender identity?

• The motivation behind these protections is simple, but powerful: the goal is to protect people from arbitrary discrimination in employment, housing, public accommodations, and other areas.  A person’s gender identity has nothing to do with their job performance, or their qualifications as a good renter.

• Polling shows that Americans agree people should be judged on their merits -- on their qualifications to do a job or pay for an apartment -- not on who they are or how people perceive them.  Like provisions addressing discrimination based on, for example, national origin, gender, or age, prohibitions against discrimination based on gender identity help ensure that people will, indeed, be judged on their merits.

• In jurisdictions without protections against employment discrimination and other discrimination based on gender identity, transgender persons (please see definition below) simply have no legal protections against even the most outrageous forms of discrimination, unless they live in a city or county with applicable anti-discrimination protections.  Prohibiting discrimination based on gender identity also provides protections for persons who are not transgender but who may experience discrimination based on their perceived gender identity.

• Anti-discrimination laws do not create “special rights” for transgender Americans.  The right to work or rent a home is not a “special” right, and that is why we already have civil rights laws protecting against many forms of discrimination including race, religion, gender, disability and national origin.  An inclusive law simply puts transgender Americans on the same footing as everyone else.  Governor Jack Markell recognized this when he signed an Executive Order in 2009 to establish a policy of nondiscrimination based on gender identity and expression within Delaware's Executive Branch.
  
  
• An anti-discrimination law will not create a flood of litigation or harm small businesses.  Experience with other state and local laws which protect transgender workers has shown that there simply has not been a notable increase in litigation.  Delaware businesses are already prohibited under federal law from discriminating in employment based on gender stereotypes. 

• It’s important to note that laws against discrimination do not prevent employers from firing underperforming employees and do not prevent landlords from turning down unqualified renters.  These laws simply make sure that all employees get a fair chance at working hard to get ahead without discrimination or bias and that no one is singled out for arbitrary discrimination when it comes to renting an apartment.
  
  
• One reason why it is particularly urgent to prohibit discrimination based on gender identity is the reality that transgender persons experience unusually high rates of discrimination: Forty-seven percent have experienced an adverse job outcome, such as being fired, not hired or denied a promotion because they are transgender. [1]  Transgender persons report having difficulty making ends meet because, although they possess valuable skills and experience, they often cannot find work because they face discrimination from employers. 

Definitions

• Gender identity is distinct from sexual orientation and refers to a person’s innate, deeply felt sense of gender, which may or may not correspond to the person’s assigned sex at birth (the sex originally listed on a person’s birth certificate).

• Transgender is an umbrella term that refers to people who experience and/or express their gender differently from conventional or cultural expectations—either in terms of expressing a gender that does not match the sex listed on their original birth certificate or by physically altering their sex. 

Responses to Some Arguments Against Prohibiting Discrimination Based on Gender Identity

• If private employers are already enacting policies to prohibit discrimination, why not leave it to them?  It is a positive step that private employers are enacting these policies, but we can’t count on private businesses to guarantee equal rights.  For one thing, not every employee works for an employer with these policies.  In addition, government-enacted laws can provide specific protections that voluntary employer policies cannot provide.  Finally, employers are free to change their voluntary policies at any time. 

• Why prohibit discrimination based on gender identity when the estimated population of transgender people is relatively small?  Even though transgender people are a distinct minority, they deserve equal rights and protection against discrimination.  The fact that a group is in the minority, no matter how small, is not a reason to deny them equal rights.