I applaud Connecticut's decision to pass legislation protecting its residents from discrimination based on gender identity or expression.
Too often, legislation including protections based on gender identity or expression is considered an "add-on" to a broader policy preventing discrimination based on race, ability, religion, sex or sexual orientation. In fact, when it comes to workplace discrimination for men and womenparticularly those in non-traditional fieldsgender identity provides the legal underpinning to ensure that everyone receives the same basic protections, no matter how they dress, speak, or walk.
In this way, protection from discrimination based on gender identity can actually prove to be the most powerful, as well as one of the most fundamental, tools we have to protect people in their homes, workplaces and public accommodations. Many assume that protection based on gender identity and expression provides expanded protections solely for transgender men and women, who identify with a different sex than that which they are biologically assigned at birth. Certainly, it does provide those essential protections, as it should.
Discrimination against transgendered men and women is rampant, and we must ensure that all members of our community can work and live without fear that they will be fired or kicked out of their homes in response to someone else's anxiety about their deeply personal identity. However, the reach of legislation protecting on the basis of "gender identity or expression" is potentially much larger. This legislation actually provides broad protections for men and women who may not necessarily be clearly defined as "transgender." In effect, it offers basic protection to any person who does not always desire to express their assigned gender as the community-at-large might expect them to.
In the simplest example, many women could already be considered "cross-dressers" in the workplace. They wear what was formerly viewed as masculine garbpants and a suit jacket. To differing extents, they may look more or less feminine in this masculine outfit. Protection based on gender expression would ensure that women who choose not to reinforce their femininity, or who pursue a more gender neutral appearance, could not be disciplined on that basis. Similarly, men who do not conform to gender stereotypes because they are deemed too "effeminate" would also be protected.
More than 20 years ago, Anne Hopkins sued Price Waterhouse Cooper, claiming that they violated sex discrimination laws when they passed her over for promotion because she was too "masculine." The Supreme Court agreed with her. However, just a few years ago in Pennsylvania, a male employee who sued a company after being systematically harassed at work because he was not masculine enough lost his case. Pennsylvania provides no protections to the Commonwealth's lesbian, gay, bisexual or transgender residents. In this instance, the court decided the Pennsylvania man faced harassment because his colleagues perceived him to be gay. The word "perceived" is critical in this context. His harassers did not necessarily know his sexual orientation, but they did not need to know it to feel that he did not meet their expectations for masculinity. Contrast that to a case of an accountant in Harrisburg whose boss had no idea of his sexual orientation until it was revealed on the news. Only then was he fired.
These examples illustrate the complexities of protecting all of our citizensnot solely on the basis of race, ability, or sexbut also based on whom they love and the way they express themselves.
Nothing in this legislation prohibits companies from having strict dress codespeople may still be required to remove nose rings, cover up tattoos, and cover up spaghetti straps. What the legislation does do is ensure that within the bounds of appropriateness for any company's dress code, employees can express their gender as they see fit.
In today's world, it seems inconceivable that women would not be allowed to wear pants and flat-soled shoes. It's time for our human rights laws to catch up to the cultural norms that recognize, and accept, fluidity in gender expression.
Dan Frankel is the Democratic Caucus Chair and represents Pennsylvania's twenty-third legislative district. He has repeatedly introduced legislation to prohibit discrimination based on sexual orientation or gender identity or expression. Frankel is also a recipient of the Marjorie H. Matson Award, presented by the Greater Pittsburgh Chapter of the American Civil Liberties Union of Pennsylvania, in recognition of his civil rights advocacy.
Suggested citation: Dan Frankel, Connecticut LGBT Protections Offer Model for Pennsylvania, JURIST - Hotline, June 30, 2011, http://jurist.org/hotline/2011/06/dan-frankel-lgbt-connecticut-law.php.
This article was prepared for publication by JURIST's professional commentary editorial staff. Please direct any questions or comments to them at firstname.lastname@example.org