On June 26, 2008, the House Subcommittee on Health, Employment, Labor and Pensions held a hearing to examine discrimination against transgender employees. The term “transgender” refers to individuals who feel that their biological gender does not match their true gender identity, some of whom undergo gender reassignment.

In November 2007, the House passed the Employment Non-Discrimination Act (ENDA) (H.R. 3685), which would prohibit employment discrimination on the basis of sexual orientation, but language prohibiting transgender discrimination was removed from the bill to facilitate its passage. Although the Subcommittee hearing did not concern any specific bills, Rep. Frank (D-MA) introduced legislation last fall that would prohibit discrimination on the basis of an employee’s “actual or perceived gender identity” (H.R. 3686).

Speaking in support of federal legislation to ban discrimination against transgender employees were Rep. Baldwin (D-WI), Rep. Frank (D-MA), and Dr. Bill Hendrix, the chair of Gays, Lesbians, and Allies at Dow Chemical Company. Rep. Baldwin pointed out that over 300 major U.S. businesses now ban discrimination based on gender identity, and commended them for being “way ahead of Congress.” Rep. Frank argued that any potential workplace disruption caused by transgender employees does not justify denying these individuals the chance to earn a living. Dr. Hendrix testified that creating a respectful working environment is critical to business success, and that Dow’s progressive lesbian, gay, bisexual, and transgender policies give the company an advantage in the hiring and retention of qualified workers.

Shannon Price Minter, the Legal Director of the National Center for Lesbian Rights, testified that there is an urgent need for federal law to protect transgender workers. He explained that transgender people often face discrimination, harassment, and even violence in the workplace. Although twelve states, the District of Columbia, and over 100 localities have enacted laws that prohibit discrimination against transgender workers, Minter argued that we need more than a “patchwork of laws.” The Subcommittee also heard testimony from two individuals who were stated that they were terminated after informing their employers of their intentions to undergo gender reassignment.

JC Miller, a partner at Thompson Hine LLP, cautioned the Subcommittee about the wording of any legislation to protect transgender workers and the unintended consequences that it might have. She also stressed that any legislation needs to make clear to employers the point at which they need to make modifications to accommodate transgender employees. Finally, Miller asked the Subcommittee to consider conferring exclusive jurisdiction on the federal courts and providing that prevailing parties be awarded costs and fees when litigation arises under any legislation that is enacted.

Glen Lavy, Senior Counsel and Senior Vice President for Marriage Litigation at the Alliance Defense Fund, opposed any federal legislation to ban discrimination against transgender employees. He testified that Congress should not make the “moral judgment that it is immoral for employers to not accommodate transgender employees.” He argued that hiring and retaining transgender employees might contravene some employers’ religious beliefs, that employers would be put in a difficult position because gender identity is not something that is readily observable, and that some employers would not be able to accommodate transgender employees as a practical matter.

During the questioning period, Rep. Kline (R-MN) questioned Miller about whether the terminology used in any potential legislation would require overt action by an employer in order to establish a violation. Rep. Sanchez (D-CA) expressed the view that potential litigation resulting from a transgender-protection law should not prevent Congress from passing such a law. Chairman Andrews (D-NJ) concluded by saying that Congress will need to accommodate the reasonable concerns of employers in passing legislation to prohibit employment discrimination against transgender Americans, but that he did not think that it would be prohibitively complicated to do so.