First Lady Michelle Obama in June got a taste of the urgency felt by those seeking workplace protections for lesbian, gay, bisexual and transgender employees. While speaking during a fundraiser, she was confronted by Ellen Sturtz, a protester later identified as a member of the organization GetEQUAL. Sturtz, who was angry at the lack of progress in enacting federal  protections for LGBT employees, explained, “I don’t have time to wait another generation for equality.…I could no longer remain silent.” Along with the First Lady, people across America are becoming increasingly aware of the issues that sexual-orientation and gender-identity protections raise. 

On June 17, a Colorado agency ruled that a public school could not prohibit a transgender child from using the girls’ restroom, and the Maine Supreme Judicial Court is considering a case that raises the same issue. As transgender people gain more visibility and protection in society, employers will face accommodation demands from transgender employees in the workplace. For employers, these issues are complex and riddled with legal and political land mines. Transgender employees are not explicitly protected from discrimination by federal law. Bills that would extend federal protection to gender identity have been introduced in Congress on several occasions, but all have failed. The EEOC did recently hold in Macy v. Holder, No. 0120120821, 2012 WL 1435995 (EEOC April 20, 2012), that complaints of discrimination based on gender identity, change of sex and transgender status are cognizable under Title VII of the Civil Rights Act of 1964. “Title VII prohibits discrimination based on sex whether motivated by hostility, by a desire to protect people of a certain gender, by assumptions that disadvantage men, by gender stereotypes, or by the desire to accommodate other people’s prejudices or discomfort,” the EEOC concluded. We can expect more litigation on this interpretation at the federal level.

Cities and states have been more willing to act. At this time, 17 states expressly include gender identity or expression in their employment nondiscrimination statutes, and at least 150 cities have enacted similar ordinances. Employers increasingly have responded to these laws by including transgender protections in their handbooks, many of which companies use on a national basis. Given that the law and society seem to be  rending toward protection for transgender people, it would be prudent for employers to develop guidelines and procedures for transgender employees.