Tag: Transgender rights

Advocating for Transgender, Intersex, and Gender Nonconforming People’s Equal Access to Homeless Shelters

Nearly one-third of transgender individuals experience homelessness at some point in their life, and 70% of those who have stayed in a homeless shelter have reported some form of mistreatment, including harassment and refusal of service, due to their gender identity.  Transgender individuals are significantly more likely to end up homeless than the general population because they often face rejection by their family members and discrimination in employment and housing.  The levels of discrimination and income inequality are even higher for transgender women of color, and the COVID-19 pandemic has further exacerbated the rates of unemployment, poverty, and homelessness among the transgender population.

On September 22, 2020, pro bono attorneys filed a public comment letter on behalf of The National LGBT Bar Association and Foundation urging the withdrawal of a Proposed Rule issued by the U.S. Department of Housing and Urban Development (HUD) that would severely harm homeless transgender, intersex, and gender nonconforming individuals by allowing federally funded homeless shelters to discriminate against them on the basis of their gender identity.  The Proposed Rule would eliminate key non-discrimination protections previously afforded to transgender shelter-seekers under HUD’s 2016 Equal Access Rule and would permit single-sex shelters to turn away transgender, intersex, and gender nonconforming individuals if the shelter operator determines that the individual is not of the same “biological sex” as the other shelter residents.

The Proposed Rule is premised on the medically and legally indefensible presumption that an individual’s sex can be determined solely on the basis of their external physical characteristics.   In reality, an individual’s “biological sex” is complex, multi-faceted, and primarily determined not by external physical characteristics, but by an individual’s gender identity—which is sometimes referred to as one’s “brain sex.”  The Proposed Rule’s reduction of “biological sex” to physical sex stereotypes such as “height, the presence (but not the absence) of facial hair, the presence of an Adam’s apple, and other physical characteristics,” would not only result in discrimination on the basis of gender identity and transgender status, but would also enable single-sex shelters to arbitrarily provide or deny shelter based solely on a shelter worker’s assessment of whether an individual appears sufficiently “male” or “female” enough to enter.   Denying shelter to transgender, intersex, or gender nonconforming individuals on the basis of such physical sex stereotypes constitutes a type of gender discrimination that numerous courts have found unlawful.

HUD’s justifications for the Proposed Rule are rooted not in fact, but in transphobia and harmful gender stereotyping.  HUD claims that the Equal Access Rule burdens faith-based shelter providers, but provides no evidence of this.  HUD also claims that the Proposed Rule is necessary to protect the privacy and safety of cisgender (that is, non-transgender) shelter residents, again with no evidence that the Equal Access Rule has resulted in any harm to these residents.  Rather, HUD posits a hypothetical fear that “non-transgender, biological men” may pretend to be transgender women “to obtain access to women’s shelters” where they will harm cisgender women.  In so doing, HUD perpetuates what courts have identified as the “transgender predator myth,” a harmful, false, and unsubstantiated belief that laws protecting the rights of transgender people to access public accommodations such as restrooms will cause cisgender men to pose as transgender women to enter women’s facilities and assault cisgender women.

If enacted, the Proposed Rule will present transgender, intersex, and gender nonconforming individuals with the untenable “choice” of either being placed in a homeless shelter inconsistent with their gender identity or sleeping on the street.  Those who opt for shelter at a single-sex facility that does not match their gender identity will be subjected to the psychological trauma of being misgendered and will face the high risk of physical violence that has been documented in various settings in which transgender people have been forced into facilities inconsistent with their gender identities.  Those who opt to go unsheltered will also face a serious risk of harm, as studies have found as many as 66% of homeless transgender individuals have experienced a physical assault, and 33% have experienced sexual violence.  While a staggering 47% of transgender people report being sexually assaulted during their lifetime, the number climbs to 65% among transgender individuals who have experienced homelessness.  These grim statistics are symptomatic of a growing epidemic of violence against transgender individuals, as recent FBI data shows hate crimes against transgender people are on the rise.

We are proud to support The National LGBT Bar Association and Foundation in challenging this Proposed Rule and championing the rights of transgender, intersex, and gender nonconforming people who need access to emergency shelter.  HUD must protect homeless transgender individuals, who are among the most vulnerable members of the LGBTQ community, by ensuring that homeless shelters provide them with safe and equal access in accordance with their gender identities.

To read the public comment letter in full, click here.

© 2020 Proskauer Rose LLP.
ARTICLE BY Erin M. Meyer  of Proskauer Rose LLP
For more articles on civil rights, visit the National Law Review Civil Rights section.

North Carolina Retailers Navigate Conflicting Laws Regarding Transgender Protections

On March 23, 2016, the North Carolina Legislature passed House Bill 2, the “Public Facilities Privacy and Security Act” (“HB2”), that overturned a Charlotte ordinance extending anti-discrimination protections to lesbian, gay, bisexual, and transgender (“LGBT”) individuals and allowing transgender persons to use the bathroom of their choice. Instead, HB2 requires individuals to use public bathrooms that match the gender listed on their birth certificates. A swift public outcry followed, with many celebrities denouncing the law and canceling appearances in North Carolina, companies threatening to boycott, and the American Civil Liberties Union filing a lawsuit challenging HB2 as unconstitutional and for violating federal law.

North Carolina TransgenderNorth Carolina officials have refused to disavow HB2 and, on May 9, filed a lawsuit against the federal government seeking a ruling that HB2 is not discriminatory. The Justice Department has countersued, alleging that HB2 violates Title VII of the Civil Rights Act of 1964 (“Title VII). Regardless of the ultimate outcome of these lawsuits, it is clear that discriminating against LGBT individuals has real consequences, from both a business and legal perspective. What should retailers know and, more importantly, do to survive in this current environment?

At a minimum, retailers should familiarize themselves with their state’s employment nondiscrimination laws (if any) that apply to private employers. Twenty states (including California, Illinois, New Jersey, and New York) and the District of Columbia have passed employment non-discrimination laws that prohibit discrimination by private employers based on both sexual orientation and gender identity. Two states (New Hampshire and Wisconsin) have such laws covering sexual orientation only. These laws protect LGBT persons from discrimination in hiring and in the workplace.

Retailers also are encouraged to review their municipality’s nondiscrimination laws and regulations, if any. For example, New York City law prohibits gender identity discrimination, and the New York City Commission on Human Rights recently announced guidance (“NYC Guidance”) that makes clear what constitutes gender identity and gender expression discrimination under the NYC Human Rights Law. The NYC Guidance warns employers and business owners that they may violate New York City law if they intentionally fail to use a transgender employee’s preferred name, pronoun, or title, or refuse to allow a transgender employee to use single-sex facilities, such as bathrooms or locker rooms, and participate in single-sex programs consistent with their gender identity.

Retailers also should know that the EEOC has aggressively pursued transgender discrimination claims on theories of sex stereotyping and gender nonconformity under Title VII, which bars employers from discriminating against employees on the basis of their sex. In cases involving government employees, the EEOC has held that: (i) an employer’s restriction on a transgender woman’s use of a common female restroom facility constituted illegal sex discrimination under Title VII,(ii) an employer’s intentional references to a transgender female as “he” may constitute sex-based discrimination and/or harassment, and (iii) a transgender employee stated a valid Title VII sex discrimination claim based on his allegation that his employer took over a year to correct his name in the company’s computer system.

The EEOC has taken further action against private companies. For example, it recently entered into a consent decree with a Minnesota financial services company for allegedly refusing to let a transgender employee use the women’s restroom and subjecting her to a hostile work environment. In another action, a Florida eye clinic paid $150,000 to settle an EEOC lawsuit that sought relief for an employee who was allegedly discriminated against when transitioning from male to female.

In light of this climate, retailers are encouraged to accommodate the needs of transgender workers proactively rather than reactively responding to potential claims of discrimination. Retailers, particularly those operating in states with anti-discrimination laws that cover sexual orientation and/or gender identity, should implement a policy designed to foster workplace inclusion. Retailers can avoid significant business and legal risk if they follow these two directives:

  • Call transgender employees by their preferred names, pronouns, and titles, and promptly update internal databases (pay accounts, training records, benefits documents, etc.) with this information upon an employee’s request. The NYC Guidance, for example, advises employers to use the employee’s preferred name regardless of whether the employee has legally changed his or her name “except in very limited circumstances where certain federal, state, or local laws require otherwise (e.g., for purposes of employment eligibility verification with the federal government).” This is a sound policy that retailers beyond New York City should consider following. In addition, employers may choose to offer new business cards and email aliases for their employees.

  • Provide transgender employees access to bathrooms that correspond to their gender identity. On May 3, the EEOC issued a “Fact Sheet” stating that the denial of equal access to a bathroom corresponding to an employee’s gender identity qualifies as sex discrimination prohibited under Title VII and that contrary state law is no defense. The Fact Sheet encourages employers to refer to the more comprehensive “Guide to Restroom Access for Transgender Workers,” which was issued by the Occupational Safety and Health Administration (“OSHA”) and offers model practices for restroom access for transgender employees. Like the EEOC, OSHA advises that “all employees should be permitted to use the facilities that correspond with their gender identity.” Where possible, employers should provide employees with additional options, including single-occupancy gender-neutral (unisex) facilities and use of multiple-occupant, gender-neutral restroom facilities with lockable single occupant stalls.

While the North Carolina Legislature has rolled back protections for the LGBT community, the media attention surrounding HB2 has been largely negative and has affected the businesses of companies operating in the state. Given the number of other states that have enacted laws expressly prohibiting sexual orientation and/or gender identity discrimination, the federal government’s enforcement position, and changing public opinion on the issue, retailers are on notice that such discrimination may have negative business or legal ramifications.

Article By Nathaniel M. Glasser & Jonathan L. Shapiro of Epstein Becker & Green, P.C.
©2016 Epstein Becker & Green, P.C. All rights reserved.

Oxford, Alabama, City Council Repeals Bathroom Ordinance Targeting Transgender Individuals

The Oxford, Alabama, City Council has repealed on May 4, 2016, an ordinance it passed a week previously that barred transgender people from using a bathroom that corresponds with their gender identity. (See our article, Oxford, Alabama, City Council Adopts Ordinance Restricting Access to Bathroom Facilities Based on Biological Sex.)

The ordinance made it unlawful for a person to use a bathroom or changing facility within the jurisdiction of the City that did not correspond to the sex indicated on the individual’s birth certificate. Persons deemed to have violated the ordinance could have faced a misdemeanor charge, punishable by a fine of up to $500 or up to six months’ incarceration.

 The ordinance quickly garnered national attention and civil rights groups, including the Human Rights Campaign and the Southern Poverty Law Center, publicly condemned the ordinance. In a letter issued to the Oxford City Council prior to the repeal, the Southern Poverty Law Center, the American Civil Liberties Union, and the ACLU of Alabama stated that the ordinance violated the Equal Protection Clause by singling out transgender people for different and unequal treatment. The groups also argued that the ordinance violated the due process clause, “because of its broad reach and lack of enforcement mechanisms,” which, according to the groups, left it unclear “whether people risk arrest simply for failing to carry their birth certificates to the restroom at all times.”

The letter also stated that the ordinance violated Title IX of the Education Amendments of 1972, which prohibits sex discrimination in public schools. The letter noted a recent Fourth Circuit Court of Appeals decision, G.G. v. Gloucester Cty. Sch. Bd., No. 15-2056, 2016 LEXIS 7026 (4th Cir. Apr. 19, 2016), in which the U.S. Court of Appeals for the Fourth Circuit, in Richmond, accorded deference to the Department of Education’s interpretation of regulations governing toilets, locker rooms and shower facilities. The Department of Education opined that a school must treat transgender students consistent with their gender identity.

In a special meeting, the Council voted 3-2 to repeal the ordinance. Because the mayor was ill and had not yet signed it, the Council could vote to recall the ordinance. In repealing the ordinance, some Council members expressed concerns regarding whether the ordinance violated Title IX of the Education Amendments of 1972.

In addition to the repeal of the Oxford ordinance, the U.S. Department of Justice took a similar position in a letter dated May 4, 2016, to North Carolina Governor McCrory. The DOJ stated that North Carolina’s law restricting bathroom access to restrooms based on an individual’s biological sex and not based on an individual’s consistent gender identity violates both Title VII of the Civil Rights Act and Title IX of the Education Amendments of 1972. (See our article, Department of Justice Warns Governor that North Carolina LGBT Law is Unlawful.)

Article By Thomas A. Davis, Michelle E. Phillips & Kimberley R. Ward of Jackson Lewis P.C.

Jackson Lewis P.C. © 2016