Emphasizing the Need for Comprehensive LGBT Non-Discrimination Protections

On Monday, Saks Fifth Avenue backtracked on its claim that they had the right to discriminate against employees for being transgender. Earlier this month, Leyth Jamal, a transgender woman who had worked at Saks Fifth Avenue, filed a lawsuit against her former employer for fostering a hostile work environment which culminated in her firing. Saks Fifth Avenue originally filed a motion to dismiss the case, claiming that trans identities are not protected under Title VII of the Civil Rights Act, which prohibits sex discrimination (not discrimination based on sexual orientation). Although Saks Fifth Avenue withdrew this motion, the discrimination that Jamal faces, as well as the continuous fight on the state level against anti-LGBT legislation, illustrate the urgent need for comprehensive LGBT non-discrimination legislation. Jamal’s lawsuit illustrates the growing consensus that Title VII of the Civil Rights Act covers gender identity through its provision prohibiting discrimination based on sex. Two years ago, the Equal Employment Opportunity Commission (EEOC) decided in Macy v. Holder that trans workers are protected by the Civil Rights Act and just last month Attorney General Eric Holder directed all Department of Justice components and U.S. Attorneys to no longer argue that Title VII’s prohibition against sex discrimination excludes gender identity. This decision by the Department of Justice led them to file a first-of-its-kind statement of interest in Jamal’s case asserting that Title VII covers transgender individuals. While the actions by the DOJ and Saks Fifth Avenue’s withdrawal of their motion to dismiss may seem to indicate that there is no need for non-discrimination protections for trans individuals, nothing could be further from the truth. Firstly, these cases have dealt with employment discrimination, yet trans people face discrimination in a variety of places, including housing, public accommodations and health services. The pervasiveness of employment discrimination—as well as other forms of discrimination—additionally illustrates the necessity of legislation that explicitly bans discrimination based on gender identity (and sexual orientation), especially since a different administration could decide to interpret Title VII as trans-exclusive. Furthermore, as marriage equality has spread to more conservative states, thanks to state court rulings, there has been a backlash in the form of anti-LGBT proposals in many states. For example, Oklahoma State Representative Sally Kern filed three bills last week, one of which would explicitly empower businesses to refuse to provide goods, services and accommodations to LGBT people. The other two would explicitly allow Oklahomans to seek or enroll their children in conversion therapy and make it illegal for any public employee to recognize or grant same-sex marriage licenses. These are just a few of the anti-LGBT measures that are being considered in the wake of gains in the courts for LGBT rights. Last month, the Center for American Progress released “We the People: Why Congress and U.S. States Must Pass Comprehensive LGBT Nondiscrimination Protections.” This report highlights the many areas in which LGBT people continue to face discrimination, including employment, housing, public accommodations, education, and credit. Currently, only a minority of states offer non-discrimination protections in areas of employment, housing, public accommodations, education and credit based on sexual orientation and gender identity. Yet, as CAP’s report illustrates, anti-LGBT discrimination is rampant across the United States. The past 15 years have seen dramatic gains for LGBT individuals, including the end of sodomy laws, gains in marriage equality, and the end of Don’t Ask Don’t Tell. Yet, LGBT individuals still face discrimination in a variety of spheres. As Jews, we are taught that all human being are created b’tzelem Elohim, in the Divine Image (Genesis 1:27) and are therefore deserving of equality, respect, and inclusion. As Reform Jews, we therefore have a religious, as well as moral obligation, to support comprehensive LGBT nondiscrimination protections that would prohibit employment discrimination, among others, against individuals based on their gender identity and sexual orientation.