By Madison Zucco and Luke Lamberti
Around the country, Women’s Bills of Rights have emerged as a mechanism to spread anti-transgender policy under the guise of women’s rights. These laws redefine terms like gender, sex, woman, and man to binary definitions that exclude protections and recognition of transgender, nonbinary, and in some contexts, intersex individuals. The focus of these laws is on public institutions and facilities, such as restrooms and changing rooms. In light of this worrisome impact, transgender, nonbinary, and intersex people may wonder what protections they have in workplaces if their state has passed a Women’s Bill of Rights.
Each state’s Women’s Bill of Rights is unique depending on what laws it sought to amend and how far-reaching its impact will be, but clear throughlines exist nationwide. Transgender, nonbinary, and intersex employees are affected by the redefinition of terms including sex, gender, men, and women, as legislators use outdated and transphobic lenses to categorize individuals and essentially erase any protection of those who do not identify as cisgender women or men. If a gender diverse—non-cisgender—individual is employed by a state government, public school, or another form of public institution, that institution may take the position that only cisgender employees are protected by the state’s anti-discrimination laws.
Oklahoma’s Women’s Bill of Rights states that “any policy, program, or statute that prohibits sex discrimination shall be construed to forbid unfair treatment of females or males in relation to similarly situated members of the opposite sex.” By claiming that laws only forbid “unfair treatment of females or males,” the bill may result in transgender, nonbinary, and intersex employees from no longer being covered by the Oklahoma Anti-Discrimination Act. Montana similarly appears to have passed legislation that limits “sex discrimination” to only males and females, which could be interpreted as removing transgender, nonbinary, or intersex individuals from the protections of the Montana Human Rights Act.
These employees may still be protected by federal anti-discrimination laws, though, including Title VII of the Civil Rights Act, which prohibits employment discrimination based on gender identity. For instance, if a transgender employee is barred by their employer from using the office locker room that aligns with their gender identity, they may be able to establish a Title VII violation. Similarly, a Title VII or Affordable Care Act violation may be established where a transgender employee is denied coverage for gender-affirming care but cisgender employees are covered for the same procedure or treatment.
As Women’s Bills of Rights become more prevalent—over 40 “re-definition” bills were introduced into state legislatures this year—it becomes increasingly important for employers to stay informed and protect the rights of transgender and nonbinary employees at both the state and national levels.
It is essential for public and private employers to understand the implications of these laws and how they might affect their workforce. While public employers in states that have passed Women’s Bills of Rights may be more limited in how they can support their transgender, nonbinary, and intersex employees, private employers can be proactive in counteracting harmful policies by incorporating specific protective language into their company policies and providing robust support systems for their transgender, nonbinary, and intersex employees. This could involve conducting informational sessions to ensure that employees know their rights and the potential impacts of these laws. Additionally, providing support networks—such as employee resource groups—and ensuring that all employees are aware of and have access to these resources can significantly enhance the sense of belonging and safety for transgender, nonbinary, and intersex employees. By doing so, employers can create a more inclusive and supportive work environment, helping to mitigate the negative effects of these legislative changes on their employees.
If you believe you have been discriminated against on the basis of your gender identity or sexual orientation, contact an experienced employment attorney at Sanford Heisler Sharp McKnight, which has offices in New York City, San Francisco, Palo Alto, Nashville, San Diego, and Washington, DC.