Citing a lack of support for an inclusive Employment Non-Discrimination Act (“ENDA”), in November the United States House of Representatives passed a version of ENDA which would extend federal statutory protection from discrimination in the workplace based on sexual orientation, but would not extend the same protection based on gender identity/expression. Our very own Congresswoman Tammy Baldwin pushed for an ENDA that included gender identity/expression protections too, but in the end the Democratic “leadership” prevented her amendment from even coming to a vote. As of the writing of this column, the Senate had yet to take the bill up.

The lack of explicit gender identity/expression protection in the workplace via federal statute is a great disappointment for all of us who stand for fairness. The lack of courage on the part of the Democratic “leadership” to even allow a vote on the Baldwin amendment so we know who our friends are is likewise troublesome. But thanks to the brave efforts of trans activists and allies across the country, there is a growing collection of case law which finds workplace protection for transgendered and gender variant people in existing prohibitions against sex discrimination.

It all started with the United States Supreme Court’s 1989 decision in Price Waterhouse v. Hopkins, which held that it is illegal sex discrimination when an employer makes adverse job decisions based on sex stereotyping. In that case, the employer did not promote Hopkins, a female, in part because in the decisionmakers’ view that she was “too macho,” needed to have her hair styled and makeup done, and should behave more femininely. That is, because Hopkins did not fit the female sex stereotype, she was discriminated against. The United States Supreme Court found this to be sex discrimination made illegal by Title VII of the Federal Civil Rights Act. Since that decision in 1989, numerous courts and state administrative agencies have applied this prohibition on sex stereotyping to protect transgendered and gender variant people against discrimination in the workplace.

Most recently, the United States District Court for the District of Columbia denied the federal government’s motion to dismiss a sex discrimination case brought by Diane Schroer. Schroer, a trans woman, applied for a job with the Library of Congress under her previous male name and presented as male at the interview. After receiving and accepting the job offer, she met with the decisonmaker, presented as female, and informed him that she was about to change her name and was beginning to present publicly as female. The job offer was promptly revoked. Schroer’s attorneys from the ACLU alleged that the reason was based on sex stereotyping: the decisionmaker felt Schroer did not conform to stereotypes of how women should look, and believed others would feel the same and therefore not view Schroer as credible in her job. On November 28, 2007, the Court found that based on those allegations and the Hopkins decision, Schroer could pursue her case as sex discrimination of the sex stereotyping variety under Title VII.

As of yet, there are no court or administrative decisions from Wisconsin (that I could find) which consider a sex stereotyping sex discrimination case brought by someone transgendered, though there are at least two positive cases coming out of federal courts in Ohio in the past four years. Cases of sex stereotyping, resulting in the termination or denial of promotion for a transgendered person in Wisconsin, must be out there, though: a 1997 survey by the San Francisco Department of Health of over 500 trans people showed that 46% of male-to-female and 57% of female-to-male transgendereds reported experiencing employment discrimination. Wisconsin’s Fair Employment Act prohibits discrimination on the basis of sex and has often been interpreted consistent with Title VII. Given the strong trend in courts and administrative agencies across the country to find illegal sex discrimination when a transgendered or gender variant person loses a job or promotion for not conforming to sex stereotypes, I hope it is only a matter of time before Wisconsin’s Fair Employment Act is found to provide this same protection.

The Schroer case, and cases like it, are careful to note that Title VII does not protect transgendered people as transgendered and thus do not provide the breadth of legal protection that an inclusive ENDA could provide. But until our legislative leaders learn how to lead (as Congresswoman Baldwin already has), this line of cases can serve as a stopgap measure. Also, don’t overlook other protections that might apply. For instance, Wisconsin law protects against sexual orientation discrimination in the workplace, and often transgendered and gender variant people are initially perceived by employers as gay or lesbian. The law provides protection based on the decisionmaker’s perceptions, regardless of whether they are accurate. So if the basis for an adverse employment decision is a perception that you are gay or lesbian, the decision is illegal under Wisconsin law. Also, the Cities of Madison and Milwaukee have ordinances which protect against gender identity/expression discrimination in employment, so if you work within either of these cities, you have the kind of broad explicit protection that we need at the state and national level as well.

For more information about the legal rights of transgendered people, please browse these websites: www.transgenderlaw.org, and www.transgenderlawcenter.org. The National Center for Lesbian Rights, the ACLU, and the National Gay and Lesbian Task Force also all have excellent resources specific to legal issues faced by transgendered people.

Tamara Packard is a Madison civil rights lawyer, activist, and partner in the law firm of Cullen Weston Pines & Bach LLP.