Transgender Discrimination in 2023 Under the Updated Rules, at Work and on Campus
The Problem of Transgender Discrimination
According to GLAAD, a large national poll of transgender people found that the trans community is disproportionately faced with unemployment, poverty, and discrimination.
In a 2015 research report, more than one in eight transgender men alleged that they had been fired or forced to leave their work due to gender identity or transitioning. In another piece of research on a subset of the transgender community, one in two persons polled said that they had been discriminated against at work, and in other research, one in five said that they had not been offered employment. In a third study, transgender people were four times as likely to live in severe poverty, which means earning less than $10,000 per year.
Dr. T.J. Jourian argues that there can be obstacles to trans and non-binary people completing their university or college degrees. Obstacles on campus can be social, architectural, or policy-related. Such obstacles may result in “trans and nonbinary students report[ing] higher rates of anxiety, depression, sleeplessness, social isolation, and suicidality than their cisgender peers.”
The Application of Civil Rights Laws
The Supreme Court in Bostock v. Clayton County, Georgia (2020) declared that employees cannot be targeted for firing, refusals to hire, demotion, or lack of promotion or raises due to their sexual orientation or other reasons inextricably tied to their sex at birth, which may relate to how their identity is seen. Bostock was a critical moment in the history of the law, clarifying that discrimination against trans people is sex discrimination that Congress outlawed.
The Bostock opinion suggested that discrimination laws protecting students, rather than employees or staff, come into play when trans people are treated differently or worse. This discussion helps make clear that discrimination against trans people in schools, colleges, universities, clinics, doctor’s offices, or hospitals is subject to federal regulation. Today, campus guidelines discourage harassment or targeting of transgender students, faculty, or staff.
Courts are flexible in discrimination and equal access cases, because they know that bosses, college or university administrators, and the like hold a lot of the paperwork and are likely to deny contributing to a hostile environment. Courts may allow a victim of discrimination at work, at school, or in accessing health care to show first that other persons having a different gender identity or sexual orientation were treated better. Adverse treatment can be related to wages, benefits, or promotions at work; housing, health care, grading, athletics, or other matters at school; or the services provided and the atmosphere created in health care settings. An employer or provider then has an opportunity to show that differences resulted from neutral criteria, such as seniority or productivity at work, turning in assignments at school, or keeping up with appointments and so on in health care settings. But if a rational person could doubt the excuses provided for any differential treatment, due to inconsistencies in the defendant’s approach or some other reason, a jury trial may be required.
Under the federal civil rights act, an employee may be entitled to lost pay and benefits, both in the past and in part of the future, and for emotional distress. Courts have found that $300,000 in damages for discrimination’s effect on the victim’s self-esteem, mood, relationships, health, and sleep may be fair in some cases. Federal courts may or may not request a report from a medical expert or supportive testimony of one’s family or friends. The U.S. Equal Employment Opportunity Commission has stated that feeling excessively tired or nervous and a drop in one’s self-esteem are significant in discrimination cases.
Whether unlawful discrimination has occurred and what potential compensation is available are the kinds of complex issues that an attorney can help develop.
It is important to know your rights when it comes to gender identity and sexual orientation harassment, discrimination, and retaliation for making complaints. A free consultation can help you understand your rights and take action to protect them, including by contacting human resources or the government.
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