WILL GENDER IDENTITY BE ADDRESSED IN FUTURE DISCRIMINATION LAWS?

April 3rd, 2013

Last week headlines focused on the U.S. Supreme Court and its hearings on two cases dealing with same sex marriage (U.S. v. Windsor and Hollingsworth v. Perry). While the impending decisions may change the way gay couples may be taxed or enjoy the benefits of marriage, a larger issue remains regarding employment discrimination laws.

Presently, federal law does not recognize sexual orientation as a protected class even though several states (including Minnesota) have statutes that protect homosexuals from discrimination in the workplace. However, that may change.

Through the proposed Employment Non-Discrimination Act (ENDA), the categories of sexual orientation and gender identity would become protected classes under federal civil rights laws. Proponents of the Act believe that it is a natural step in the evolution of American civil rights laws. Essentially, when people were not being hired (or promoted) on racial or gender-based grounds, Congress passed laws prohibiting these practices. As such, the same should be afforded to gay, lesbian and transgender workers.

Opponents believe that ENDA will only provide another avenue for employers to be sued by disgruntled employees. They contend that such discrimination is too subjective to be considered pervasive, and that it prevents employers from enforcing reasonable dress codes in the workplace. Further, the specter of reverse discrimination (against people with traditional values) may not be properly addressed by ENDA.

It remains to be seen whether ENDA will gain further support this year in the midst of legislation concerning assault weapon bans, immigration reform and spending cuts.

Nevertheless, gender identity is becoming an important component to gender equality.

Source: CNN.com, Employment Non-Discrimination Act threatens free markets, March 22, 2013

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