Since the 1960’s, Civil Rights laws have evolved from the brinks of enforcement to class action litigation. The movement under Dr. Martin Luther King Jr. saw the Southern segregation of blacks and whites challenged and defeated. Landmark court decisions like Roe v. Wade and legislation of Title IX have ensured that women are among the groups protected from discrimination in the workplace and in educational institutions based on their sex. Now, as the LGBT (Lesbian, Gay, Bisexual, Transgender) community joins the ranks of minorities fighting to have the same rights granted to all Americans, addendums to legislation are being introduced to include this group.
The state of California is a front runner in such legislation. Although no federal law explicitly protects transgendered individuals from workplace discrimination, California law includes them in the Fair Employment and Housing Act (FEHA). The law prohibits the discrimination of transgendered people in hiring/ firing practices, distribution of compensation, and terms, conditions, and special privileges of employment. Harassment, which is any behavior that creates a hostile environment, by superiors and co-workers is also prohibited. Such behavior is illegal if it is so severe that it interferes with an individual’s ability to perform their work.
Associational discrimination is also punishable under FEHA. This protects significant others, friends, family, and allies of transgendered people from workplace discrimination. Coming out by lesbian, gay and bisexual employees has been interpreted by the California Supreme Court as political activity, and is thus protected under California Labor Code Sections 1101 and 1102 which prohibits employers from preventing or punishing an employee’s political activity. In regards to individuals who are transgendered, should they face discrimination after disclosing their gender identity or openly transitioning, they may be protected under these sections interpreting their actions as protected political acts.
Definitions for what it is to be transgendered are varied. A generally excepted concept is a person whose gender identity differs from their biological sex. Gender and sex differ in that the latter refers to a social concept of what practices are typical of a man or woman. Sex is the biological distinction in a species between male or female. It is important to recognize that one’s gender identity, self-identification as man, woman, or neither, is not an indication of sexual orientation.