*This piece was inspired by* * (1)*, *the HBO documentary produced by Lena Dunham and Jenni Konner, premiering Monday, June 20. The film follows a range of clients of the custom suit shop Bindle & Keep, which looks beyond the gender binary.*
*Names and identifying details have been changed to protect privacy.*
“The apparel oft proclaims the man,” advised Shakespeare’s Polonius in *Hamlet* , and as a lawyer for transgender employees experiencing job discrimination, I have found that sometimes employers need a bit of advice as to both Shakespeare and the law. Polonius concluded with Shakespeare’s most celebrated wisdom: “This above all: to thine own self be true.” A trans person’s clothing isn’t just what they use to cover their body. It is a proclamation of who they most essentially are at the permanent core of their being. It is their truth. Employers, listen to Shakespeare; free your trans employees to be themselves.
I’ve handled over 30 cases of trans discrimination in the last few years, and it usually seems that initial enthusiastic support from employers turns to hostility once trans or gender non-conforming employees begin presenting in clothing of a different gender. When biased employers discriminate against trans employees when they wear their new clothing, they are denying them that law of self-truth. They are also violating the law of the land, the Federal Civil Rights Act. It is discrimination based on a stereotype of who is entitled to wear gendered clothing. That is discrimination based on sex. It is my job to use that law to ensure that trans and gender non-conforming employees may enjoy both their apparel and their true selves at work.
I feel great kinship with my clients. Their journey was my journey. When I transitioned 18 years ago, I didn’t see a woman living her truth whenever I looked in the mirror. I saw how awkwardly my new clothing hung on my frame. I saw my wrongly shaped body. I saw hair in the wrong places. Looking at myself in the mirror, I knew my transition to living as female would *never* work, and this choked me with sadness. But I also knew I *had* to; there was no other choice, because no imaginable future was worth living otherwise.
> Their journey was my journey.
I soon lost my family, my home and my career. But I was ecstatic with the freedom to be me. Every step was like a person newly freed from a life sentence in jail. But it was *hard* . That awkward, ugly duckling stage was extraordinarily hard. Like when my old boss called me “it” when asked for a recommendation. Like when the tall, rangy man with the weather-beaten face approached me on a Manhattan street and pointed and laughed and wanted to fight, and people turned their faces away. Like when I noticed my new, slightly sketchy boyfriend (but who else would love me?) had a rifle leaning against the wall, and his roommates suddenly seemed very threatening, and I was already a little too stoned to make it home.
That was a long time ago. In fact, life is awesome now, though of course it has its ups and downs. Now I’m a college professor and a lawyer representing trans people in courts around the country in job discrimination lawsuits. I’ve co-litigated cases with the U.S. Department of Justice and the U.S. Equal Employment Opportunity Commission. I sat, until recently, on the board of directors of Lambda Legal, the oldest and largest national legal organization whose mission is to safeguard and advance the civil rights of LGBT people and those with HIV. I am chair of the annual Transgender Law Symposium and executive director of the National Transgender Bar Association. So when I see trans people and gender non-conforming people – at that newly-transitioned stage or wearing the gendered clothing that makes them feel right with their world at this most incredibly fragile and brave time – being treated so poorly on the job, my heart goes out to them and the civil rights lawyer emerges.
I might be good now, but I still *feel* for my clients. Many work in a place where people look at them like trash, like they don’t want them mucking up their clean workplace. Many leave because of the daily emotional toll, or get fired on some pretext. And it still surprises me to what extent these cases revolve around the clothes. Here are a few examples:
> I might be good now, but I still feel for my clients.
*Bill.* He was a lean and muscular fellow, and the female uniform they had given him was pretty awkward. It didn’t fit right, because it was for girls, and Bill wasn’t a girl. The police chief didn’t seem to know that yet, although everyone else did. Bill was a good cop, and got along pretty well with everyone. This insistence on “female” uniforms – it made him uncomfortable, so he made a special request for the male armor. It fit him to a T, and the look of the armor under his shirt was pretty dapper. He was good at his job, and everyone knew him to be a good man. Until the day he brought in a suspect and booked him into the men’s jail. There was an investigation, something about whether a female officer could be present at the search of a male detainee. Bill was no female, but Bill was out of a job. He went back to work in retail, hoping to get back to law enforcement some day.
*Stephanie.* She shimmered into work wearing her beautiful new dress. She was a glamorous creature, and the awkward, confused glances from the boys in the garage dimmed into insignificance in the light of her radiance. But she took it off in the dressing room, put on her uniform shirt that said “Charlie” over the breast pocket, and went to work with rest of the grease jockeys. They always got along. With her 35 years of experience, she was the best mechanic in the shop – everyone said so, including the boss. When she told them she was going to transition, they were all smiles and support. But when she actually did – when they saw her as a woman – then there was trouble. The boss called her in and told her she could never again wear a dress to work. *Don’t talk to the others about your “condition.” Wearing a dress would be disruptive. I’m worried you’ll negatively impact my business.* The atmosphere in the shop became glacial. One winter morning, she came in early, but the parts truck hadn’t yet arrived. Since she couldn’t work without the parts, she closed her eyes momentarily while trying to warm up in the car bay. Someone ran up and took a picture, and they fired her for sleeping on the job.
*Tammy* . Her new nail polish was a fierce, bright pink, and it looked awesome against her pale skin. But the look on manager Rick’s face when she explained she was transgender was not awesome. She was a good trucker, had been doing the job successfully for years. She wasn’t sure how out she wanted to be, and the pink nail polish had been her most recent compromise between being herself and being in the closet. And she wasn’t prepared to lie. She was a straightforward and honest person. Say what you mean and mean what you say. So she answered Rick’s questions truthfully, and hoped for the best. Only once Suellen in dispatch heard, then everyone heard, including the company president. Within an hour, they called and told her that she had to bring her truck in “for repairs.” Strange. She’d been at them for months to check out her truck, because she’d put on a lot of miles in a short time, but they kept saying there wasn’t time. Gotta get the product out. But suddenly they had to have it. Right. That. Minute. Then she got the call – you’re fired. Why? Because you were on your cell phone. There’s a rule against that. On page 47 of the handbook. Never mind that no one told you, never mind you used a headset, never mind that everyone else was also using their phones, never mind that dispatch constantly called drivers on their cell phones while they were driving. You’re out. Not because of your nail polish or being transgender, oh no. Just clean out your truck and get out.
A uniform. A dress. Some pink nail polish. Why should these make a difference to whether the job is getting done well? But these are the turning points in so many discrimination cases. Over ninety percent of trans people experience harassment on the job. The trans unemployment rate is twice that of the general population and four times that among trans people of color. Underemployment is rampant; people with graduate degrees work as low-level clerks. A high percentage live below the poverty level.
> A uniform. A dress. Some pink nail polish. Why should these make a difference to whether the job is getting done well?
My work is committed to the proposition that those with the courage to be themselves should not be denied employment because of their gender. They should not lose their jobs or be demoted because of that courage. The United States Equal Employment Opportunity Commission has recently recognized this proposition as well. It has made LGBT issues a priority area in its new strategic plan and has issued several opinions clearly explaining that the federal law does not permit discrimination based on gender, gender expression, gender identity, and gender transition. Two United States circuit courts of appeals have agreed, in some of the most conservative areas of the country, that the federal law does not permit such discrimination, and many lower federal courts have also so ruled. I recently obtained a ruling from the United States District Court for the Western District of Oklahoma saying the same. Wherever you live in the United States, you are protected now from employment discrimination. Sometimes it takes a lawsuit to convince a troglodyte employer that times have changed. They should be obliged. Go forth, and be fabulous!
*Jillian Weiss is a professor of law at Ramapo College and an attorney who works on transgender employment discrimination cases around the country. This is an excerpt from her latest book project,* Summary Judgment: Inside the Transgender Rights Revolution*.*