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The Civil Rights Act’s unintended gift to transgender rights

Fifty years after its passage, interpretation of the legislation is delivering unforeseen benefits

July 11, 2014 6:00AM ET

This month, the nation honors the 50th anniversary of the Civil Rights Act of 1964, the landmark legislation that outlawed discrimination on the basis of race, religion, sex and national origin. Transgender people are right there next to the racial and social justice movements celebrating the monumental bill’s passage. Why? Because we have greatly benefited from the discrimination protections those movements helped win — even though we were never the intended beneficiaries.

In fact, what at the time of passage was seen as an attempt to kill the bill — the specific addition of sex discrimination protections — has today become an essential tool for enacting meaningful protections for transgender people. And each year, the interpretation of the law swings increasingly in our favor.

Being yourself

But let me back up. First, let me tell you about a 5-year-old transgender child I’ll call Justin. In April, Justin and his mother stopped by the offices of the National Center for Transgender Equality, where I work, on their way to the White House’s annual Easter egg roll. He looked every bit the ordinary first grader — he even had reddish hair and freckles, as I did at his age.

But he was actually extraordinary. He was what I couldn’t be when I was his age: himself.

Though, to his parents, he had initially seemed to be a girl, Justin had been able to explain to them that he was really a boy. This was no small act of bravery. And for his parents, it was no small reciprocal act of bravery — and love — to listen to and learn from him. For many older transgender people like me, Justin’s story is a kind of miracle. When I was 5, I knew that what I had been told was wrong. I knew it was not correct when I was told I was a boy and that I had to have a short 1960s-era boy haircut. I knew all that was wrong. But there was no room then to accommodate how I understood myself, nothing for me to do but hide and imagine — for decades — that I could be a girl. So I hid it and missed the normal, undistracted childhood that my six siblings had and that Justin is having today.

Unknown to me, though, the gears were moving toward justice even then.

Helping hands

In July 1964, two months before I turned 5, civil rights legends landed a big victory when President Lyndon B. Johnson signed the Civil Rights Act. Though he was not thinking of transgender people specifically, Johnson understood the moral import of what he was doing when he signed the bill into law.

Title VII — which prohibits employment discrimination based on race, color, religion, sex and national origin — is the part of the Civil Rights Act that most specifically affects transgender people. Ironically, the sex discrimination language was added by segregationist Rep. Howard Smith, D-Va., as a kind of poison pill to kill the bill. His plan was to scare moderates who might be threatened by the addition of job protections for women — or, failing that, make the bill better for white women, who he feared would be negatively affected by passage of the bill as drafted. He was not fighting for transgender rights. 

LBJ’s explanation when signing the Civil Rights Act, that discrimination stemmed from the ‘history and tradition and the nature of man,’ refers to transgender people, too.

Yet, Smith’s misguided (and failed) maneuver may have been among the most significant gifts to transgender people in American history — even if we have had to wrap and deliver that gift ourselves.

An aggressive legal push

This is not to say that prohibitions against racial and other discrimination are not vital to transgender people — especially those who also face racism every day. Still, it is on Title VII and its prohibition of sex discrimination in the workplace that the transgender rights movement has focused.

Imagine a Catholic person who converted from Judaism being fired from her job and being told by the courts or the Equal Employment Opportunity Commission (EEOC) that while being fired based on one’s religion is considered discrimination under Title VII, being fired for converting from one religion to another is not.

We would all think that ridiculous and wrong. Yet until recently, that is what transgender people faced when seeking redress for sex discrimination in the workplace. Title VII, judges ruled, was meant to protect women. It was not meant to cover gender converts.

Then, in 1989’s Price Waterhouse v. Hopkins, the Supreme Court ruled that if an employer requires a woman to — or assumes a woman will — fit a particular sex stereotype, this is sex discrimination too. The case, brought by women’s rights advocates, has since been used as a legal precedent by transgender rights advocates. Courts have been persuaded to apply this sex-stereotyping ruling to transgender people, resulting in cases — such as Schroer v. Library of Congress and Glenn v. Brumby — that have been decided in favor of transgender plaintiffs.

The EEOC went a step further by issuing a ruling regarding 2012’s Macy v. Holder, explicitly concluding that job discrimination against people because they are transgender is sex discrimination. On June 30, President Barack Obama announced that he would sign an executive order to protect transgender federal employees from discrimination. These advances all come from Title VII.

Despite the policy victories, transgender people still experience widespread prejudice at the hands of others and from employers who have yet to accept them or the Title VII protections that cover them.

As Title VII of the Civil Rights Act is further clarified, advocates for transgender rights are optimistic that discrimination against transgender people — both in the office and on the street — will increasingly become a thing of the past.

I am confident, too, that these protections will be further codified through the passage of an employment non-discrimination law. 

Recipients of a promise

When Johnson signed the Civil Rights Act, he was not thinking intentionally of transgender people. But his explanation that discrimination stemmed from the “history and tradition and the nature of man” refers to transgender people, too. We should understand it without rancor or hatred, as he admonished. But neither should we simply accept the status quo.

I doubt 5-year-old Justin understands this any more than I did at his age, but Title VII and the protections it ensures will be a vital part of his life, even more fully than they have been a part of mine.

The act’s purpose was and is to promote a stronger and more abiding commitment to freedom, a more constant pursuit of justice and a deeper respect for human dignity. I am happy to say that transgender people are increasingly the recipients of that promise.

Mara Keisling is the founding executive director of the National Center for Transgender Equality. As a transgender-identified woman, Keisling is one of the nation's leading voices for transgender equality. 

The views expressed in this article are the author's own and do not necessarily reflect Al Jazeera America's editorial policy.

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