One Way to Defend Transgender People From Trump’s Attacks? Labor Unions.

Julianne TvetenOctober 24, 2018

LGBTQ activists and their supporters rally in support of transgender people on the steps of New York City Hall, October 24, 2018 in New York City. (Photo by Drew Angerer/Getty Images)

A New York Times report this week revealed that the Trump administration’s assault on trans­gen­der, non-bina­ry and inter­sex peo­ple has esca­lat­ed. Accord­ing to a memo cir­cu­lat­ing since last spring and recent­ly obtained by the Times, the Depart­ment of Health and Human Ser­vices (HHS) is at the helm of an effort to define gen­der as either male or female, immutable and deter­mined by the sex assigned at birth — a move that would dra­mat­i­cal­ly roll back pro­tec­tions and recog­ni­tion of peo­ple who fall out­side the gen­der bina­ry. The legal def­i­n­i­tion would fall under Title IX, the fed­er­al law that bars gen­der dis­crim­i­na­tion in gov­ern­ment-fund­ed edu­ca­tion programs.

The change marks the lat­est devel­op­ment in the administration’s cam­paign to revoke pre­ex­ist­ing U.S. gen­der-recog­ni­tion poli­cies, par­tic­u­lar­ly regard­ing employ­ment. In 2017, Trump rescind­ed an Oba­ma-era exec­u­tive order designed to restrict dis­crim­i­na­tion against LGBTQ employ­ees of fed­er­al con­trac­tors. That same year, Attor­ney Gen­er­al Jeff Ses­sions argued that the Civ­il Rights Act of 1964, a fed­er­al work­place-equi­ty law, did not pro­tect trans­gen­der work­ers from dis­crim­i­na­tion. The Depart­ment of Jus­tice would thus no longer side with trans­gen­der work­ers who sued their employ­ers for dis­crim­i­na­tion on the grounds of the 1964 law. 

Now, activists fear that HHS’s pro­posed def­i­n­i­tion may fur­ther cor­rode pro­tec­tions for trans­gen­der, inter­sex and gen­der-non­con­form­ing peo­ple in the work­place. Non-dis­crim­i­na­tion law is already frac­tured and defi­cient: Accord­ing to the LGBTQ-rights non­prof­it the Move­ment Advance­ment Project, 48 per­cent of the LGBTQ pop­u­la­tion lives in states that do not pro­hib­it employ­ment dis­crim­i­na­tion based on sex­u­al ori­en­ta­tion or gen­der identity.

If the pro­pos­al advances, one of the most imme­di­ate and robust forms of recourse for work­ers will be the lever­age of orga­nized labor. Accord­ing to LGBTQ labor non­prof­it and AFL-CIO con­stituen­cy group Pride at Work, union con­tracts are the only form of legal pro­tec­tion against employ­ment dis­crim­i­na­tion for trans­gen­der peo­ple work­ing in 33 states. (In those states, it’s legal to fire a trans­gen­der work­er based on their gen­der identity.)

Union con­tracts, which are enforce­able in all 50 states, can con­tain claus­es that specif­i­cal­ly address gen­der-iden­ti­ty par­i­ty. You can get any kind of non-dis­crim­i­na­tion lan­guage put into a con­tract that’s then enforce­able through the pro­vi­sions of that con­tract,” Jer­ame Davis, exec­u­tive direc­tor of Pride at Work, told In These Times. Basic non-dis­crim­i­na­tion that includes pro­tec­tions for gen­der iden­ti­ty and expres­sion go a long way toward mit­i­gat­ing these issues.”

This is essen­tial for work­ers who face not only a greater risk of fir­ing, harass­ment, and unem­ploy­ment — which is approx­i­mate­ly 16 per­cent for trans­gen­der and gen­der-non-bina­ry Amer­i­cans — but also depend on trans­gen­der-inclu­sive health­care. Union con­tracts can remove exclu­sion­ary lan­guage from insur­ance poli­cies. Relat­ed­ly, they can expand what an insur­ance plan cov­ers in terms of care relat­ed to a gen­der tran­si­tion, includ­ing hor­mone treat­ment, gen­der-con­fir­ma­tion surgery and men­tal health­care. For exam­ple, the Ser­vice Employ­ees Inter­na­tion­al Union (SEIU) and hos­pi­tal­i­ty- and ser­vice-work­er union UNITE HERE have passed res­o­lu­tions for trans­gen­der-inclu­sive healthcare.

In addi­tion to these mate­r­i­al con­cerns, Davis cit­ed some of the more sub­tle forms work­place dis­crim­i­na­tion can take. These include inten­tion­al­ly mis­gen­der­ing peo­ple by inap­pro­pri­ate­ly refer­ring to them by their sex assigned at birth, Davis explained. In addi­tion, employ­ers who issue male” and female” uni­forms may also coerce employ­ees into wear­ing uni­forms that don’t suit their gen­der identities. 

Unions, too, can shield work­ers from these indig­ni­ties, and can also cod­i­fy gen­der-reflec­tive access to restrooms. In 2015, the Occu­pa­tion­al Safe­ty and Health Admin­is­tra­tion (OSHA) issued a series of guide­lines declar­ing that every employ­ee, includ­ing trans­gen­der employ­ees, should have access to restrooms that cor­re­spond to their gen­der iden­ti­ty,” but these don’t con­sti­tute law, and gen­der-neu­tral or gen­der-appro­pri­ate restroom access isn’t man­dat­ed nation­wide. Aside from broad non-dis­crim­i­na­tion lan­guage,” Davis said, most union con­tracts have a health and safe­ty sec­tion in which lan­guage can be added to ensure trans indi­vid­u­als have appro­pri­ate access to facilities.”

While con­tracts are an inte­gral source of work­er recourse, Pride at Work cau­tions that they’re only as good as the efforts of work­ers to defend them — and that work­ers thus must strate­gize to pro­tect their trans­gen­der and non-bina­ry cohorts. The orga­ni­za­tion urges work­ers to take such strate­gic mea­sures as plac­ing pres­sure on unions whose health plans don’t include trans­gen­der-relat­ed care, vocal­iz­ing oppo­si­tion to work­place harass­ment and striv­ing to fur­ther orga­nize union­ized and non-union­ized LGBTQ workers.

As of 2015, 15 per­cent of trans­gen­der work­ers sur­veyed by the Nation­al Cen­ter for Trans­gen­der Equal­i­ty were union­ized or had some lev­el of union rep­re­sen­ta­tion, com­pared to the nation­al aver­age of 12 per­cent. While the frac­tion is slim — a symp­tom of decades of neolib­er­al leg­is­la­tion in the Unit­ed States — it’s pos­si­ble for unions to lever­age their pow­er beyond the scope of the work­place, thus advo­cat­ing for work­ers who aren’t union­ized. The AFL-CIO, for instance, has endorsed trans­gen­der-rights leg­is­la­tion in Mass­a­chu­setts and com­bat­ted North Carolina’s infa­mous (and defunct) 2016 House Bill 2, which would have denied trans­gen­der peo­ple access to appro­pri­ate restrooms.

Davis told In These Times that the AFL-CIO has a union lob­by­ing oper­a­tion in every U.S. state, allow­ing the orga­ni­za­tion to shape pol­i­cy­mak­ing at the local, state, and nation­al levels.

The HHS’s pro­pos­al has yet to pass, and it’s unclear when and whether it will. Giv­en the grav­i­ty of the sit­u­a­tion, how­ev­er, union pro­tec­tions coun­ter­ing the fed­er­al government’s poten­tial era­sure of trans­gen­der and non-bina­ry peo­ple have tak­en on a new lev­el of urgency. When the fed­er­al gov­ern­ment is say­ing these peo­ple don’t even exist, it gives employ­ers and oth­er peo­ple in the com­mu­ni­ty basi­cal­ly a license to dis­crim­i­nate,” Davis said. The vast major­i­ty of trans peo­ple in this coun­try would be left hang­ing with that kind of a def­i­n­i­tion in place.”

Julianne Tveten writes about tech­nol­o­gy, labor, and cul­ture, among oth­er top­ics. Her work has appeared in The Nation, Cap­i­tal & Main, KPFK Paci­fi­ca Radio, and elsewhere.
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