On Friday, the Department of Labor formally published rules implementing this summer’s Executive Order prohibiting Federal contractors from discrimination on the basis of gender identity and sexual orientation. The rule is cause for some measure of celebration: as the Obama Administration moves into its seventh year in office, it is starting to take steps to fight the endemic levels of employment discrimination faced by the LGBT community. However, for transgender and non-binary people, the actual impact of the rule remains to be seen. Despite years of waiting for the Department of Labor to enforce existing protections against discrimination on the basis of gender identity, the Department still lacks answers to fundamental questions of how the rules will be applied. Obvious issues the Department failed to address include:
- how employers should handle transition of employees;
- the interaction with the existing prohibition on discrimination on the basis of sex (including gender identity); and
- conditions of employment such as employer-provided trans-exclusionary health insurance and gender-specific dress codes.
According to the Williams Institute, 42% of lesbian, gay, and bisexual people have been discriminated against in the workplace on the basis of their sexual orientation. Even this high number is dwarfed by the 78% of transgender people who have experienced harassment, mistreatment and discrimination in the workplace on the basis of gender identity. A 2012 estimate calculated that the rules would provide additional protection to approximately 11 million people on the basis of sexual orientation and 16.5 million more people on the basis of gender identity.
No guidance has been provided on how to avoid discriminatory actions when an employee transitions at work, despite the fact that the Department could have relied upon the “gender identity guidance” published by the Office of Personnel Management in 2011. Adverse employment actions, such as firing, demotion, or a failure to hire, solely on the basis of gender identity are clearly prohibited by the new rules, though the Equal Employment Opportunity Commission held such discrimination was discrimination on the basis of sex over two years ago in Macy v. Holder. The Department lacks an explanation of how the new rules interact with its much-delayed guidance from August 19, 2014 on Macy’s application to existing Federal contracts.
Unfortunately, the rules also do not provide any clarity on discrimination in conditions of employment, despite well-known problems to be addressed. Perhaps most pervasively, many employers (including the Federal government itself) exclude claims related to being transgender or non-binary from their insurance policies. When asked if the Department had an opinion on the legality of such exclusions, the Department’s Office of Federal Contract Compliance Programs Division of Policy stated they had no opinion on the matter, despite having plenty of warning that advocates were going to want an answer. Given that the Federal government still, with few exceptions, has these exclusions in the health plans available to its own employees, the Department’s reticence is perhaps understandable. It is nonetheless disappointing, given that inability to access medically necessary care related to transition is associated with a 10 to 15 percentage point increase in the likelihood of lifetime suicide attempts by transgender and non-binary people, already plagued by a horrific lifetime suicide attempt rate of 41%.
The importance of increasing access to transition-related care should not detract from the host of other important issues that the rules fail to address. Due to what may be a drafting error by the Department, the existing prohibition on sex-segregated facilities except with respect to “restrooms and necessary dressing or sleeping areas” has been rendered ambiguous. Unfortunately, advocates against nondiscrimination rules for gender identity often turn restrooms into battlegrounds. Because the Department failed to provide an explanation of how contractors are expected to “assure privacy between the sexes” without discriminating on the basis of gender identity, advocates against the rule may decide to file a lawsuit on the matter, claiming that the rule actually prohibits people from using restrooms consistent with their sex and gender identity.
The rule similarly fails to address workplace dress codes. This is likely to create problems for businesses with gender-specific dress codes, as people whose gender identity is not congruent with either “male” or “female” will not fit neatly into such categories, and the rule prohibits discrimination on the basis of gender identity, including non-binary gender identity. Guidance here would be particularly useful, but because the rule fails to address it, it will fall to the people the rule is intended to protect to educate both the Department and Federal contractors. Previous attempts asking the Administration to allow for non-binary official documentation have failed to even generate a response acknowledging the existence of non-binary people, let alone policy outcomes that take non-binary people into account.
With a scope reaching tens of millions of employees of Federal contractors, it is possible that Friday’s rule signifies a marked change in the protections available to LGBT people in the workplace. However, until the Department of Labor is ready to explain how the rule applies to the many varied ways employers have developed to discriminate on the basis of gender identity, transgender and non-binary people are once again left waiting for answers that may never come.
Update: in July of 2013, Department of Labor published its own guidance on avoiding discrimination on the basis of gender identity (as a type of discrimination on the basis of sex) in the workplace, consistent with OPM’s guidance. It is unclear why they could not provide this same guidance to Federal contractors. The guidance has substantial flaws, but it would nonetheless be better than no answer at all.