Orange County Employment Lawyers Blog
Discrimination of transgender professionals is nothing new, though Californians may not realize the employment protections trans workers are afforded in this state don’t apply to all.
That’s because even as the California Fair Housing and Employment Act prohibits discrimination on the basis of one’s sexuality, gender and gender identity, the federal government does not. But military personnel who are transgender went from being told at the tail end of the Obama administration that they could serve openly and have access to psychological and gender-affirming medical care, the Trump administration has effectively ushered in a new “don’t ask, don’t tell” phase for service members who are transgender.
As noted in a report by the non-partisan Palm Center, while this is not a “ban,” neither was “don’t ask, don’t tell” under former President Bill Clinton. Nonetheless, both policies did/will have the impact of systematically removing transgender individuals from the military or, just like DADT, ensure their gender identity is kept silent and invisible.
The U.S. Equal Employment Opportunity Commission still continues to insist (as it was prior to Trump’s election) that LGBT discrimination in employment was a form of gender discrimination under Title VII. That stance has been resisted by the Department of Justice under Trump, though several courts have sided with the EEOC on this. Nonetheless, the transgender military policy formally went into effect this month.
What the New Federal Transgender Military Policy Will Mean for Service Members
The new policy from the Pentagon is that individuals who have already been diagnosed with gender dysphoria will be allowed to continue serving and according to their gender identity. They will also be entitled to receive medical treatments, such as hormones and gender-affirming surgeries. However, from the time the policy takes affect, those who have been diagnosed with the condition or who is undergoing hormone treatment or who has already undergone a gender transition will be barred from enlisting. Further, those who are already enlisted but diagnosed with dysphoria after the policy goes into effect will have to complete their service according to the gender they were born and will be barred from obtaining hormone treatments or related surgeries.
Not only was the policy an abrupt about-face from that of the Obama administration, it came as a surprise to Trump’s own Pentagon, who were reportedly caught off-guard by a series of tweets the president made that then compelled the Department of Defense to initiate a plan for a ban and implement it. The president has only spoken about it twice, according to NBC. When asked about it in August, he stated he has “respect for the community,” that he believes he has or has had great support from them, including “a lot of votes,” but that it was “a very difficult situation” and he was “doing a lot of people a favor by coming out and just saying it.”
California Transgender Worker Protections
Shortly before the president’s first mention of the transgender military policy in 2017, an amendment to section 12950 of FEHA (approved by voters and signed by the governor) specifically bars workplace discrimination and harassment of transgender employees. Mandatory training requirements on this issue are required of companies with 50 or more employees.
Los Angeles LGBT discrimination employment attorneys are familiar with additional recently-adopted statutes, such as the California Code of Regulations Section 11030, which offers more guidance on the definitions of things like gender identity and gender expression, and explain discrimination can be based not only one’s internal understanding of their own gender but others’ perception of a person’s gender identity.
There are currently four lawsuits on the policy pending.