The U.S. Office of Special Counsel (OSC) released a “groundbreaking” report on Thursday, determining that the Army had discriminated against a transgender federal employee on the basis of gender identity.
According to OSC (PDF), an independent federal investigative and prosecutorial agency, colleagues subjected Tamara Lusardi, a civilian quality assurance specialist working for the Army, to pervasive discrimination after beginning the process of transitioning from a man to a woman in 2010.
Workers required her to use a separate gender-neutral bathroom and repeatedly referred to her by her male birth name and the pronoun “he,” OSC documents show.
The Transgender Law Center, which represented Lusardi, said the “report is groundbreaking in its conclusion that some of the most common forms of harassment faced by transgender people on the job should be recognized for what they are: unlawful discrimination.”
One Army employee reported to OSC seeing Lusardi called by her male birth name, followed by a “smirk,” implying that the person, whose name was redacted in court documents, had done it on purpose.
The misuse of the proper name and pronoun was a practice that was “sometimes intentional and continued for a lengthy time period after [Lusardi’s] email announcement regarding her name change and gender transition,” according to the documents.
“Here, reviewing the totality of the circumstances, OSC finds that the acts at issue were sufficiently frequent, pervasive, and humiliating to constitute discriminatory harassment,” the report said.
Lusardi, a disabled Army veteran who according to The Washington Post served in Desert Storm, had told her supervisor about her plans to transition as early as 2007, but she officially notified the supervisor in April 2010 that she planned to legally change her name and begin dressing as a woman.
But rather than allowing her to use the women’s bathrooms, her supervisor required Lusardi to use a gender-neutral restroom, because she was making other employees “uncomfortable,” the report said.
On a few occasions, when the gender-neutral bathroom was being cleaned or was out of order, she used the women’s bathroom, after which coworkers admonished her, according to court documents.
“I applaud Ms. Lusardi for standing up not only for her rights, but for those of all federal employees,” said Special Counsel Carolyn Lerner in a release (PDF). “The Army deserves credit for seeking to right the wrongs that Ms. Lusardi faced and for creating a more welcoming environment for its LGBT employees.”
After OSC's ruling, the Army agreed to provide workplace diversity and sensitivity training, with a specific focus on LGBT issues.
The White House has taken a number of actions to protect the gay, lesbian, bisexual and transgender population from discrimination, including issuing an executive order in July banning workplace discrimination against LGBT government employees.
In January, Defense Secretary Chuck Hagel said he was open to reviewing the military’s ban on transgender persons serving openly in the military. Advocacy groups have said the military’s classification of transgender identity as a psychological disorder goes against the World Health Organization’s International Classification of Diseases and the American Psychiatric Association’s diagnostic manual for mental disorders, neither of which consider gender nonconformity to be a disorder.
Lusardi, for her part, told the Washington Post that she had been unable to sleep due to the discrimination about her gender transition.
“I really care about my job, and I really wanted to be professional,” Lusardi told the newspaper. “But people were saying, ‘Is it Todd or Tamara, I don’t know,’ and smirking at me, even after I had sent an e-mail explaining my transition. I just wanted to crawl under the table.”