Date: Wed, 02 Dec 1998 07:54:06 -0800 From: Clare Howell Subject: IYF - New Analysis MEDIA ADVISORY - FOR IMMEDIATE RELEASE Editor: Clare Howell, clare@gpac.org The U.S. Justice Department announced on 14 Nov 98 that DOJ will study the possibility of using existing civil rights laws to litigate cases of state and local government discrimination against people who do not comfort to gender stereotypes; e.g., effeminate males, masculine females, transgendered people. In response to subscribers' questions, we offer this analysis to clarify the implications of DOJ's announcement for transgender people. Q: What is behind the movement at DOJ? A: Hard to say. Some commentators are suggesting that the Civil Rights Act of 1964 might bar discrimination based on gender stereotypes. Oncale v. Sundowner Offshore Services, the recent Supreme Court decision, is an example of a heterosexual man, a slight, soft-spoken man, who was verbally harassed by other men for not fitting the masculine physical stereotype. The precedent set in this case supports the notion of a similar application to cases involving discrimination against gay, lesbian, and transgender people. Q: What is a sex stereotype, a gender stereotype? A: Examples of gender stereotypes includes the ideas that women aren't aggressive, all men are exclusively attracted to women, and that everyone is born either male or female, with a matching sense of sexual identity. Q: Does this mean that DOJ is now protecting transpeople and other gender-different people on the job? A: No. First, in this area, DOJ only has jurisdiction in cases involving state and local government employees. Second, at this point DOJ is merely examining how its efforts might be better focused in light of how federal sex-discrimination law has developed. Q: I just lost my job at the Jorgenson Toolworks Company. Should I contact DOJ? A: No. Remember that DOJ only has jurisdiction in cases involving state and local government employees, not the private sector. Q: I just lost my job as the city clerk in RuPaul, Oklahoma because of my gender-expression. Should I contact DOJ? A: Perhaps. If there is evidence of gender-stereotyping (e.g., witnesses who heard stereotypical statements, or documents containing or reflecting them), you may want to contact DOJ. However, be aware that DOJ staff may refer you initially to the EEOC, because a referral from that agency is needed before DOJ can act in this area. Moreover, if DOJ staff decide to begin litigating, they will not necessarily take every case brought to their attention. It is more likely that staff will look for cases with the greatest value to set precedent. Q: Does this mean we no longer need gender protection in the Employment Non-Discrimination Act (ENDA)? A: Not at all. First, in this area, DOJ's jurisdiction is limited to state and local governments, whereas ENDA is broader. Second, DOJ only enforces existing law. This development reflects DOJ's interest in better understanding the coverage provided by existing law. Enactment of ENDA, however, would change the law itself, settling these issues once and for all. Q: Is there a downside to all this? A: Yes, on three fronts. First, DOJ could be so besieged by anxious folks expecting DOJ to win back their jobs that DOJ backs away from this initiative, and it becomes more difficult for groups interested in gender rights to work with DOJ. Second, the courts could reject further application of gender-stereotyping theory, leaving us worse off that before. Third, DOJ activity in this area, and/or court decisions, could trigger a Congressional backlash. Q: How should we react to this? A: This is going to take awhile to work itself out, both in the field, at DOJ, and in the courts. In the meantime, we recommend that you continue to educate your Congress- member, either at Lobby Day or at home, and continue to seek local employment protection for public and private employees that explicitly includes gender expression. ### Subscriptions. Please contact: subscribe@gpac.org For prior releases, check the GenderPAC website at: http://www.gpac.org (c) 1998 InYourFace GenderPAC's news-only service for gender activism.