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Senate ENDA Testimony

Senate ENDA Testimony

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Published by: transgenderlawcenter on Jun 12, 2012
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870 Market Street, Suite 400San Francisco, CA 94102415.865.0176www.transgenderlawcenter.org 
Testimony of the Transgender Law CenterMasen Davis, Executive DirectorCommittee on Health, Education, Labor, and PensionsUnited States SenateJune 12, 2012
Mr. Chairman, Vice-Chairman, and Members of the Committee:We thank Chairman Harkin and the Committee for holding a hearing on the Employment Non-Discrimination Act (ENDA), S. 811. On behalf of the Transgender Law Center (TLC), we arewriting to provide you with information showing why it is crucial that you support this criticallyimportant legislation.TLC is a national non-profit, civil rights organization advocating for the rights of transgenderand gender nonconforming people. Created in 2002 in response to the overwhelmingdiscrimination that transgender people and our families face in nearly every area of life, TLCutilizes legal services, education, community organizing, and policy and media advocacy toovercome this discrimination and help ensure that every person can live safely and authentically,regardless of their gender identity or expression. We provide legal information and assistance tonearly 1,500 transgender and gender non-conforming people per year. We also provide adviceand technical assistance to private attorneys representing transgender and gender non-conforming clients nationwide. Approximately 10 - 15% of the inquiries we receive are relatedto employment discrimination. We have also represented transgender people in prominentdiscrimination cases, including
 Macy v. Holder 
, in which the Equal Employment OpportunityCommission ruled in April of this year that transgender people are covered by the sex-discrimination prohibition of Title VII of the Civil Rights Act of 1964.
Accordingly, TLC hasextensive knowledge of the widespread pattern of discrimination against transgender and gendernon-conforming workers.Many times a week, we hear from a transgender or gender nonconforming person somewhere inthe United States who has been fired, denied a job, or mistreated at work just because of theirgender identity or expression. Despite existing protections under some state laws and underfederal sex discrimination laws like Title VII, both employers and employees lack the basicknowledge that transgender people have legal protections from job discrimination. In the lastyear alone, Transgender Law Center assisted individuals in all types of jobs, including atransgender former police detective, Mia Macy, who was denied a job at the federal Bureau of Alcohol, Tobacco, Firearms, and Explosives after she came out as transgender
; a transgender
 Macy v. Holder 
EEOC Appeal No. 0120120821, Agency No. ATF-2011-00751 (Apr. 20, 2012).
See Macy,
EEOC Appeal No. 0120120821 (2012).
2man in California who was fired a day after he inquired about whether his employer, anationwide company, provided health care benefits that covered gender transition; a transgenderwoman who worked as a skilled maintenance worker for a school district and was constantlyharassed by coworkers after she transitioned from male to female; and a transgender woman inVirginia who was let go after a customer made a negative comment about her gender.In 2008, Transgender Law Center conducted the first statewide survey in California documentingthe financial, employment, health, and housing experiences of transgender Californians. Withdata from nearly 650 respondents, we worked with a team of social scientists to create
The Stateof Transgender California: Results from the 2008 California Transgender Economic HealthSurvey
The outcomes are stark.
The State of Transgender California
confirms that transgenderand gender non-conforming people experience overwhelming discrimination and marginalizationin employment based on their gender identity. A copy of 
The State of Transgender California
isattached, and the findings are discussed throughout this statement.The protection that ENDA would provide is crucial to ensuring that transgender and gender non-conforming employees are able to work in an environment that is safe, respectful andprofessional, regardless of gender identity.
Transgender People Are Well Qualified to Work in a Variety of Industries, Yet FaceSignificant Economic Barriers
The State of Transgender California
reveals that transgender people who responded to the surveyhave remarkably high education levels.
Respondents are almost twice as likely to hold a
bachelor’s degree as the general California population.
Ninety-four percent of thetransgender respondents over the age of 25 hold a high school diploma or equivalent comparedto 80% in California generally. Overall 46% of transgender people hold
a Bachelor’s degree or 
higher compared to 29% of the general California population.Nonetheless, transgender people are disproportionately represented below the poverty line.According to the most recent state census, approximately 11.7% of people 18-64 years old inCalifornia live below the national poverty level of $10,400 for single adult households. Yet
1 in4 transgender people in California earn wages below the national poverty level.
Thisdisconcerting trend continues, even at higher education levels. The average income for all
individuals with a Bachelor’s degree residing in Californ
ia is over $50,000.
The average yearlyincome for transgender responde
nts with a Bachelor’s degree is
below $30,000
40% lessthan the average college graduate in California.
The State of Transgender California
also found that respondents who are employed work in avariety of fields and occupations. Thirty-nine percent work in the private sector, 28% work inthe non-profit sector, 16% work in government, and 16% are self employed. Yet despite higheducation levels and experience in a broad range of fields,
less than half of respondents arecurrently employed full-time
. The overall unemployment rate for transgender persons wastwice the statewide average for the period this survey was administered.
Transgender People Face a Widespread Pattern of Discrimination and Harassment inEmployment
Discrimination and harassment based on gender identity is a reality for transgender and gendernon-conforming workers. According to
The State of Transgender California,
two thirds of transgender Californians, or 67% report some form of workplace harassment ordiscrimination directly related to their gender identity.
This harassment and discriminationranged from verbal harassment to unfair scrutiny or discipline to termination of employment.Almost half of the surveyed population reports that they experienced some loss of employmenteither directly as a result of their gender identity or as a possible result of their gender identity.There was no difference between experiencing discrimination and type of employer. Thewidespread pattern of discrimination and harassment face by transgender workers exists inprivate companies, in the non-profit sector, and in government.
Discrimination Against Transgender Employees Is Under-Reported
Despite widespread employment discrimination,
only 15% of transgender Californians whoreported some form of discrimination or harassment went on to file a complaint
. Californiahas explicit protections against workplace discrimination based on gender identity, and stillreporting rates are shockingly low. One can assume that reporting rates in the many stateswithout such protections are far lower. Without explicit federal protections, state and localemployees are not only vulnerable to discrimination, but are also less likely to speak out about itor make complaints out of fear of retaliation by the employer, and because they are not assuredlegal recourse for such discrimination or retaliation.
ENDA Is Necessary to Clarify Employers’ Obligations Under Federal Law
The explicit protections in federal statute for gender identity and sexual orientation created byENDA are crucial, despite recent rulings from courts and the EEOC that transgender people, aswell as lesbian, gay, and bisexual people, are protected by the prohibition of sex discriminationin Title VII of the Civil Rights Act.
See, e.g.
EEOC Appeal No. 0120120821 (2012) (finding that discrimination based on gender identity,change of sex, and/or transgender status is cognizable under Title VII;
Schroer v. Billington
, 577 F.Supp.2d 293(2008) (D.C. 2008) (holding that transgender plaintiff was protected by Title VII both due to sex stereotyping andbecause discrimination against a person who had changed gender was gender discrimination just as it was religiousdiscrimination to discriminate against a person because they changed their religion);
 Lopez v. River Oaks Imaging & Diagnostic Group, Inc.
, 542 F. Supp. 2d 653, 655-656 (S.D. Tex. 2008) (holding that Title VII is violated when anemployer discriminates against any employee, transsexual or not, because of their gender expression);
Prowel v.Wise Bus. Forms, Inc.,
579 F.3d 285, 292 (3d Cir. 2009) (denying summary judgment on a sex discrimination claim,expla
ining that evidence of sexual orientation harassment “does not vitiate the possibility that [the plaintiff] was alsoharassed for his failure to conform to gender stereotypes”);
Smith v. City of Salem
, 378 F.3d 566 (6th Cir. 2004)(holding that a transgender woman plaintiff fired for her job for expressing feminine gender characteristics at work could recover under Title VII).

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