Why aren’t transgender citizens in the United States protected from employment discrimination like transgender citizens in Canada?

By Hilary McDaniel

At the same time that our northern neighbor works toward formally banning discrimination against transgender individuals,[1] our federal courts confirm that businesses in the United States may terminate a transgender employee on the basis of his or her transgender status.[2] On Thursday, the United States District Court for the Eastern District of Michigan found that a metro Detroit funeral home “did not discriminate against an employee when it fired her for transitioning from a man into a woman.”[3]  Specifically, in Equal Employment Opportunity Commission v. RG & GR Harris Funeral Homes Inc. (“GR Harris Funeral Homes”), a funeral home director who had been employed for six years was terminated after she wrote a letter to her employer asking for support as she underwent sex reassignment surgery.

Meanwhile, Canada’s prime minister, Justin Trudeau, strongly supports a broad piece of legislation that would “make discrimination in the workplace illegal based on gender identity or expression.”[4] Additionally, Canadian provinces have passed legislation that has the same effect. Less than one month before the Detroit federal judge upheld the firing of the transgender funeral director, British Columbia joined the seven provinces and one territory that have changed their regulations to protect transgender individuals from discrimination. [5] The change in British Columbia law means that “an employer may not fire someone because a person is transgender.”[6]

Why the stark difference between these two nations that share many cultural similarities?[7] At least one scholar believes the difference comes down to semantics.[8] Her reasoning seems quite logical. In the United States, courts distinguish between “sex” and “gender” discrimination.[9] On the other hand, Canada “consistently moves beyond . . . semantic debate into more substantive questions of discrimination.”[10] 

Title VII protects employees from being terminated from employment on the basis of sex, but in Holloway v. Arthur Anderson, the Ninth Circuit Court declined to hold that the statute protects individuals from gender discrimination.[11] Rather, the Court concluded that when Congress enacted Title VII, it “had only the traditional notions of ‘sex’ in mind.”[12] According to the World Health Organization, “‘sex’ refers to the biological and physiological characteristics that define men and women,” and “‘gender’ refers to the socially constructed roles, behaviours, activities, and attributes that a given society considers appropriate for men and women.”[13] As such, courts have insisted on labeling transgender issues as questions of gender identity.[14] Like the Detroit judge in GR Harris Funeral Homes stressed, “neither transgender status nor gender identity are protected classes under Title VII.”[15]

In contrast, Canadian courts have expressly found that transexualism should be protected under its human rights statute which prohibits “sex” discrimination.[16] Additionally, Canada focuses on the substantive notion of equality rather than getting hung up on semantics.[17] Canadian courts and tribunals recognize the purpose of human rights legislation: “to preclude and rectify the wrongful oppression of the weak by the strong and the disadvantaged by the advantaged in society.”[18] As such, Canadian courts have held that refusing to employ a transgender individual because of her sex is discriminatory.[19] In Vancouver Rape Relief Society v. British Columbia Human Rights Commission, the employer who refused to employ the trangender woman had “denied her the opportunity to participate fully and freely in the [province’s] economic, social, political and cultural life.”[20]

Although it may seem that “the central mistake of sex discrimination law is the disaggregation of sex from gender,” as some scholars argue, there is another major obstacle to protecting transgender individuals from discrimination in the United States: religious freedom.[21] That value is what the Detroit judge in GR Harris Funeral Homes clung to even more than the fact that gender discrimination is not federally protected. The court held that because the funeral home owner “believed that a person’s sex is a ‘God-given gift,’” forcing the funeral home owner to employ a transgender individual “would impose a substantial burden on its ability to conduct business in accordance with its sincerely-held beliefs.”[22] However, the funeral home was apparently a secular funeral home that served all denominations. As such, members of American Civil Liberties Union fear that this case presents a slippery slope.[23] Following the judge’s reasoning, “[a]ny individual employer can cite their own religious beliefs to discriminate.”[24]

So, it seems that if the United States court system would simply move away from the semantic debate and focus on substantive questions of discrimination like the Canada court system does, transgender individuals would be treated equally, but the reality is that there is a much greater barrier to the protection of transgender individuals than semantics. Transgender citizens will likely be subject to employment discrimination unless the parameter of our religious freedom protections is redefined.

* * * * *

[1] Alan Freeman, A New Transgender Rights Bill May Take Canada in a Different Direction, Wash Post (May 17, 2016) https://www.washingtonpost.com/news/worldviews/wp/2016/05/17/keeping-campaign-promise-justin-trudeau-moves-to-protect-transgender-canadians/

[2] Tresa Baldas, Federal Court Upholds Firing of Transgender Funeral Director, Detroit Free Press (Aug. 18, 2016) http://www.freep.com/story/news/local/michigan/2016/08/18/federal-firing-transgender-funeral-director/88949892/

[3] Id.

[4] Freeman, supra note 1.

[5]  Tamsyn Burgmann, B.C. Officially Includes Transgender People in Human Rights Code, The Canadian Press (July 20, 2016) http://www.huffingtonpost.ca/2016/07/20/bc-transgender-protection_n_11093156.html

[6] Id.

[7] Michael Pinard, Collateral Consequences of Criminal Convictions: Confronting Issues of Rage and Dignity, 85 N.Y.U. L. Rev. 457, 483 (2010).

[8] Laura Grenfell, Embracing Law’s Categories: Anti-Discrimination Laws and Transgenderism, 15 Yale J.L. & Feminism 51 (2003).

[9] Id.

[10] Id.

[11] Holloway v. Arthur Anderson, 566 F.2d 659, 662 (1977).

[12] Id.

[13] World Health Organization, http://apps.who.int/gender/whatisgender/en/

[14] Grenfell, supra note 8.

[15] Baldas, supra note 2.

[16] Grenfell, supra note 8.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] Baldas, supra note 2.

[23] Id.

[24] Id.