What the Supreme Court Ruling Means for Transgender People and Employers (And Why It's Not Enough)

Jun 15, 2020

Bryce Celotto, M.A.T. (he/him)By Bryce Celotto, M.A.T. (He/Him)

Author's Note: This article is dedicated to Nina Pop, Tony McDade, Dominque Fells, Riah Milton, and all the other transgender siblings we have lost to racist, transphobic violence and hate crimes. This article is also dedicated to Aimee Stephens - the longtime transgender advocate, and one of the lead plaintiffs in the U.S. Supreme Court LGBTQ employment discrimination cases—Aimee passed away in May 2020 at the age of 59. We owe today's Supreme Court victory, and our fight for collective liberation, to these heroes.
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June is Pride Month for Lesbian, Gay, Bisexual, Transgender, and Queer (LGBTQ) people all across the United States. Typically this is a celebratory time filled with Pride parades, remembering the pioneers that paved the way for us at the Stonewall (1969) and Compton Cafeteria Riots (1966), swanky parties and banquets, and corporations everywhere "Rainbow Washing" their branding to show their support for our community which has been historically marginalized, ostracized and violently oppressed. However, this Pride Month feels very different in the wake of the Coronavirus pandemic—which has forced typical Pride festivities to be canceled—and in the wake of the movement for Black lives erupting as a response to police brutality and murders. In 2020 there are no glittery parades with oversized, bloated corporate floats, no Pride receptions, no pomp, and circumstance.

Instead, this Pride month has been marred by a series of tragedies for the LGBTQ community, particularly for Black transgender people like myself. Just last Friday (June 12, 2020) the Trump administration announced their decision to roll back Obama-era transgender healthcare protections; abruptly ending policies that were previously put in place to protect transgender people from facing discrimination in accessing healthcare. Additionally, the Black transgender community has faced an intense wave of death and hate-motivated violence in 2020. In May and June alone, four Black transgender people (that we know of) have been murdered -

  • Nina Pop, a 28-year-old, Black transgender woman, was stabbed to death in Missouri in early May.
  • Tony McDade, a 38-year-old, Black transgender man, was murdered by police in Tallahassee Florida on May 27th.
  • Dominique “Rem’Mie” Fells, a 27-year-old, Black transgender woman, was murdered in Philadelphia on June 8th during unknown circumstances which are still under investigation.
  • Riah Milton, a 25-year-old, Black transgender woman, was shot and killed in Ohio during a robbery on June 9th.

In addition to these four murders, Iyana Dior, a Black transgender woman in Minneapolis was brutality beaten by a group of 20-30 cisgender men on June 1st; Luckily, Dior survived her attack. (Cisgender means "Same-gender" and is a term used to identify anyone who is not transgender; cisgender people are people whose gender identity aligns with their birth-sex). Fells and Milton are believed to be the 13th and 14th transgender or gender non-conforming murder victims in the U.S. this year, according to the Human Rights Campaign (although it is possible that this number is low due to underreporting and misgendering of victims of hate crimes). The wave of attacks against Black transgender people, specifically women or femme identified people, is nothing new. Instead, it is the continuation of a bonafide pattern of violence that Black, Indigenous, People of Color (BIPOC) who are transgender face at disproportionate rates. Transgender people are 7x more likely to experience police violence and physical violence from law enforcement than their cisgender peers (as we saw in the Tony McDade case) and the majority of victims of hate violence homicides in the United States are transgender women of color.

In the middle of this wave of violence, death, and detrimental blows to essential policy protections that LGBTQ Americans have faced in recent weeks, today there was a glimmer of hope for the LGBTQ community. This morning, the United States Supreme Court released a landmark 6-3 decision ruling that Title VII of the Civil Rights Act of 1964—which prohibits employment discrimination based on race, color, religion, sex, and national origin—applies to LGBTQ people. This ruling firmly establishes that Lesbian, Gay, Bisexual, Transgender, and Queer people are protected from workplace discrimination across the entirety of the United States. Justice Neil Gorsuch, a conservative appointed by President Trump, wrote in the majority opinion:

"An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids."

Make no mistake, the Supreme Court decision today is a win. It is something to be lauded and celebrated, especially in light of the long struggle for federal employment protections for Lesbian, Gay, Bisexual, Queer and Transgender Americans. The fight to get codified federal employment protections for LGBTQ workers has been a long, and daunting journey. Prior to the Supreme Court taking up employment protections, activists and organizations had been advocating for a comprehensive, federal law protecting LGBTQ workers known as the Employment Non-Discrimination Act (colloquially known as ENDA) for more than twenty-five years. ENDA had been introduced in every Congress since 1994 (with the exception of the 109th Congress from 2005-2007). Yet, despite ENDA's long history in Congress, the idea of closing the patchwork of employment protection policies that varied state-by-state and creating a federal Civil Rights law protecting LGBTQ workers was highly controversial. The most controversial sticking point of all was whether or not transgender people should be included in the legislation.

The dire need for federal protections for LGBTQ people in the workplace, particularly for transgender people, is blatantly apparent when you look at the statistics. A groundbreaking study published in 2013 by leading advocacy organizations shows that transgender people report unemployment at twice the rate of the population as a whole (14% vs. 7% at the time the workers were surveyed). When you look at the statistics by race an even more harrowing tale is painted: 28% of transgender Black adults are unemployeddouble the rate of general transgender unemployment, and four times the rate of unemployment for cisgender people—while Native American transgender people face similarly disproportionate numbers with an unemployment rate of 24%. High unemployment rates, also mean that transgender people are more likely to live in poverty than their cisgender counterparts. While only 4% of the general population has an annual household income of $10,000 or less, 15% of transgender people are forced to survive on $10,000 a year or less.

The story for transgender people who are fortunate enough to be employed is not much better, as trans people who are working still face acute challenges to professional success due to underemployment—meaning their skills, qualifications, and experience actually exceed the title and salary of their current role. Underemployment is a reality faced by more than 4 in 10 transgender people (44% to be exact). As a Black, queer, transgender person I have experienced all of these circumstances myself. I have faced employment discrimination due to my gender identity, I have been pushed out of jobs because I have spoken up about issues facing the Black trans community, and I have been underemployed in several circumstances—being passed up for promotions and other opportunities despite having three college degrees (including a Masters degree from an Ivy Leauge institution). This story is not a story about me though, I am including snippets of my own personal story because I want you to think about this: if an Ivy League-educated Black transgender person has faced these hardships in employment, then what about those transgender people who do not have the privilege of formal education? Many transgender people do not have the typical formal education or job experience sought after by employers. Not because transgender people are incapable of achieving this level of education or professional success, quite the contrary - because higher education and professional systems systemically lockout transgender people, particularly BIPOC transgender people from reaching their full potential.

While the statistics of transgender people in employment are deflating, the narrative I want to craft is one that speaks to the intersectionality of this moment in history. I want to humanize the experience of transgender people, as transgender people are so often dehumanized in our life, our work, and ultimately in our often untimely deaths.

The epidemic of violence being faced by transgender people—at the hands of civilians and law enforcement alike—can not be uncoupled from the employment and economic barriers that transgender people are forced to overcome simply to survive.

That being said, today's Supreme Court decision is not enough. Just like achieving full federal marriage-equality in 2015 was not the pinnacle of LGBTQ Civil Rights, the employment non-discrimination protections put in place today by the Supreme Court is not the end-all of the struggle for transgender Americans. Deeper systemic changes must be enacted by society, policymakers, and employers to ensure the social, mental, physical, and financial safety of transgender Americans, particularly BIPOC transgender people. So what do those deeper systemic changes look like in action? While I do not have all the answers for solving the crisis of premature death, violence, underemployment, unemployment, and poverty facing the transgender community, I do have some ideas that employers can implement immediately to begin adoption of the legal promise made by the Court today.

  1. HIRE TRANSGENDER PEOPLE: First and foremost employers need to hire transgender people (I cannot emphasize this enough)—especially transgender women of color, transgender people who have been system involved, undocumented transgender people, and transgender people who do not fit into, neat "formal education requirements." I want to be clear that when I say "Hire transgender people" I do not mean that simply hiring one or two transgender people makes your team or company inclusive, it doesn't mean your company gets a gold star, it doesn't mean you are done with the work of Diversity, Equity, and Inclusion (DEI). Hiring transgender people is the most basic step employers can take to support the humanity and livelihood of transgender people.
  2. CREATE COMPREHENSIVE SUPPORTS FOR TRANSGENDER PEOPLE TO THRIVE PROFESSIONALLY: Hiring transgender people means nothing if you set them up to fail when they arrive at your company by not building in the proper support necessary to ensure that transgender people can flourish. Accomplishing this requires organizations and companies to take steps to actively change their company culture in order to create inclusive environments that foster learning, growth, and professional development for their LGBTQ employees, particularly for their transgender employees. Your transgender employees should not only be in low-paying entry-level roles with little room for advancement. Transgender employees need to be prioritized when it comes to accessing professional development and mentoring opportunities and employers must be willing to ingrain intersectional values and policies that uplift all aspects of a transgender person's identity (including their race) into the workplace.
  3. INTERROGATE AND RESTRUCTURE HR + RECRUITMENT PRACTICES: Doing this work in a real way will likely require companies and organizations to interrogate and restructure their HR and Recruitment Practices. As I mentioned above transgender people oftentimes do not have the formal education that many companies require for employment and advancement. This does not mean transgender people do not have the knowledge, or expertise to thrive in the workplace. Often times transgender people have unique insights and powerful ideas born from their lived experiences of perseverance, survival, and being forced to be creative to simply live. Quite frankly transgender people are some of the most innovative people on the planet and companies need to take a deep look at themselves and ask "are our job requirements creating systemic barriers to entry for transgender people?"—the answer is likely yes.
  4. FUND TRANSGENDER ORGANIZATIONS, PROJECTS, INITIATIVES, AND COMMUNITY LEADERS: Grassroots, transgender, and BIPOC led organizations have been historically woefully underfunded by the philanthropy community and individual donors. There are a myriad of organizations out there doing incredible work on trans inclusion, trans advocacy, and protecting trans lives who simply do not get the funding or the recognition required to build and sustain long term wins. The philanthropy community, along with individual donors, must do a better job of funding these organizations, and must also commit to loosening the barriers of entry for funding. If you are a funder, or an individual just interested in where you can be giving your money right now to make the largest impact here is a great list of organizations to start with:

    The Trans Justice Funding Project
    TLDEF—Transgender Legal Defense & Education Fund
    The Marsha P. Johnson Institute
    The Okra Project
    The Black Visions Collective
    The Starfruit Project
    Familia: Trans Queer Liberation Movement
    The NYC Anti-Violence Project
    The LGBTQ+ Freedom Fund
    The TGI Justice Project
    Trans Lifeline
    The Audre Lorde Project
    The Sylvia Rivera Law Project
    Massachusetts Transgender Political Coalition
    Southerners on New Ground

Supporting transgender people in the workplace goes beyond a Supreme Court decision, and goes beyond your company including people's gender pronouns in your email signatures. Holistically supporting transgender people in, and out of the workplace, requires people to reckon with the reality that today's Supreme Court decision means nothing for transgender people if we cannot breathe. You have to be alive to be able to contribute to the workplace and benefit economically from our Capitalist system which values productivity and profit over people's humanity. You have to be alive to grow. You have to be alive to rise up the ranks in an organization. Let's take a moment today to celebrate this undeniably historic win, but let us also shift into the next gear of asking each other "What can we do more of?", "What can we do better?", "How can we listen to trans community leaders to truly uplift all Trans lives?"

Black Trans Lives Matter. Latinx Trans Lives Matter. Indigenous Trans Lives Matter. Undocumented Trans Lives Matter. Disabled Trans Lives Matter. System-Involved Trans Lives Matter. Unhoused Trans Folx Lives Matter.

Let us live.

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About the Author

Bryce J. Celotto is the Founder and Head of Strategy at Swarm Strategy, a holistic, comprehensive Diversity, Equity and Inclusion (DEI) consulting agency based in Oakland, California.

Bryce is a proven leader in creating Diversity, Equity, and Inclusion (DEI) initiatives and is also a skilled facilitator, trainer, writer, and public speaker. Prior to starting Swarm, Bryce led DEI initiatives at Brown University for the Education Department and at The Edible Schoolyard Project. Bryce has been committed to creating more equitable and accessible systems in education, progressive politics, and the social justice movement for almost a decade. He has a deep interest in organizational change, leadership development, and building talent pipelines to move more young professionals from marginalized backgrounds into leadership roles. His proven track record of success includes service on state-wide policy coalitions and training thousands of people nationwide on civic engagement, inclusion in the classroom, LGBTQ rights, and racial justice.


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