Transgender Federal Employee Wins Major Discrimination Case

Tamara Lusardi

Here in Virginia, gays and transgender Virginians have ZERO non-discrimination protections under state law.  While we can now legally marry, we can nonetheless be fired from our jobs at will and face discrimination in housing and other realms.   At the federal level things aren't much better except now federal employees and employees of federal contractors are being held to non-discrimination requirements.  Today, a major victory was won by a transgender federal employee who had faced discrimination and harassment.  It goes without saying that the Christofascists will be hyperventilating and let out spittle flecked rants that they have now lost the right to discriminate in federal employment situations.  Here are details on the case from the Washington Post:

The U.S. Office of Special Counsel on Thursday announced a landmark determination that the Department of the Army engaged in “frequent, pervasive and humiliating,” gender-identity discrimination against Tamara Lusardi, a veteran and civilian Army software specialist who transitioned from male to female.

Lusardi was working in the U.S. Army Aviation and Missile Research, Development and Engineering Center (“AMRDEC”) in Redstone, Ala., when she transitioned from male to female in 2010. During that time, the Army improperly restricted her restroom usage, referred to her with male pronouns and by her birth name and stopped giving her work, the OSC said in a report released Thursday.

In a telephone interview from Alabama, Lusardi, 49, who served in the Army from 1986 to 1993, including in Desert Storm, said she was called “sir” and “it” by co-workers and management after she legally changed her name, driver’s license and security clearance and began dressing as a woman.   Lusardi was also required to use a single-user, gender-neutral restroom, out of concerns that other employees might feel “uncomfortable” sharing a restroom with her.

The OSC, a federal investigative and prosecutorial agency, said that coworker preferences alone “cannot justify discriminatory working conditions,” since it could reinforce the very stereotypes and biases that nondiscrimination laws are intended to protect against. According to the report, Lusardi should be able to use bathrooms designated for her gender identity.

The case is part of a broader push by the federal government and the OSC to protect lesbian, gay, bisexual and transgender employees in the government.

In July, Obama signed an executive order banning workplace discrimination against millions of lesbian, gay, bisexual and transgender employees of federal contractors and the federal government. The executive order prohibits firing or harassment of federal contractors based on sexual orientation or gender identity, and it bans discrimination against transgender employees of the federal government.
 
In response, the Army agreed to provide training to correct and prevent future discrimination, the OSC said. It also now permits Lusardi to use the restroom associated with her gender identity.

The Army did not respond to further requests for comment, but it agreed to the OSC’s recommendation to provide workplace diversity and sensitivity training, with a specific focus on lesbian, gay, bisexual, and transgender issues.

Barack Obama's Unmet Promise on Discrimination

As I have noted before in posts, securing  workplace non-discrimination protections for LGBT individuals is high on my priority list.  Especially since I experienced first hand what it is like to suddenly find oneself unemployed simply because you're gay.  From my experience, we cannot trust businesses to do the right thing and even where some of the business owners are "friends," too often they turn out to be fair weather friends at best and will stand by silently as careers are ruined due to religious based bigotry or the cowardice of those who could object but fear "rocking the boat." Sadly, despite his promises to address employment discrimination injustices, Barack Obama has done nothing on this front.  Yesterday, the New York Times called on Obama to sign an executive order ENDA.  Here are editorial highlights:

President Obama has made repeated use of executive orders to advance the administration’s goals when Republicans in Congress refused to act. Last week, he signed two orders requiring modest but important steps by federal contractors to narrow the wage gap between female and male employees.

These useful measures made even more glaring his failure to honor a 2008 campaign pledge to ban discrimination by federal contractors based on sexual orientation or gender identity. A long-delayed measure to outlaw such discrimination by all employers, the Employment Non-Discrimination Act, cleared the Senate five months ago with Mr. Obama’s support, but House Republican leaders are in no hurry to follow suit. John Boehner, the House speaker, has said that a law against that sort of discrimination would be “frivolous.”

Mr. Obama said in November that workplace discrimination “needs to stop, because, in the United States of America, who you are and who you love should never be a fireable offense.” An executive order barring discrimination by federal contractors would extend badly needed job protections to more than 11 million employees who work in states that lack such protections and whose companies fail to provide them voluntarily, according to the Williams Institute at the U.C.L.A. School of Law.

What Mr. Obama needs to do is act on his principles and issue such an order, without the religious exemption that was put into the Senate bill to lure Republican votes.

[A]s the Human Rights Campaign rightly noted, an “executive order first issued by President Johnson still, today, provides important and unique protections for employees of federal contractors against discrimination based on race, sex, religion — despite the fact that Title VII of the Civil Rights Act of 1964 protects against such discrimination in workplaces across the country.” The group argues that even if the Employment Non-Discrimination Act were enacted, an executive order would be needed to provide the same range of remedies currently available to other protected categories of federal workers.

The best way for Mr. Obama to advance the issue and prod the House to do the right thing is to lead by example, not by waiting.