WASHINGTON — LGBT advocates say a long-awaited Labor Department rule to protect employees of federal contractors from sexual orientation and gender identity discrimination that was published this week lacks specificity and that further guidance from the department is needed.
"Given where the rule is at this point, guidance is critical moving forward," the Human Rights Campaign's legal director, Sarah Warbelow, told BuzzFeed News on Thursday.
Among the unanswered questions advocates have raised are why the rule includes no guidance on how employers can avoid taking discriminatory actions when an employee transitions at work, whether transition-related health care exclusions are still permitted under the rule, and how dress codes and sex-segregated facilities like restrooms and "dressing or sleeping areas" are to be addressed in light of the rule.
"What we hope, going forward, is that OFCCP will provide clear guidance on all of these outstanding issues, including things like dress codes, appropriate use of facilities, and even some other nitty-gritty details — like, when you say you can't discriminate against, for example, a trans person, that means that you have to respect people's names and gender pronouns," Warbelow said.
Mara Keisling, the executive director of the National Center for Transgender Equality, told BuzzFeed News there is "an urgent need" for more guidance "on a range of issues that make workplace protections real for transgender people."
The comments are the latest in a two-and-a-half-year struggle to get the department to act on protection of transgender workers.
The Labor Department, and specifically the Office of Federal Contract Compliance Programs (OFCCP) within the department, issued the new rule as it was directed to do under an executive order signed by President Obama this past summer. Labor Secretary Tom Perez said on a conference call with activists and reporters that the rule will take effect in April 2015.
The struggle, however, began in April 2012, when the Equal Employment Opportunity Commission ruled that the Civil Rights Act of 1964's ban on sex discrimination in Title VII includes anti-transgender discrimination in a case brought by Mia Macy. OFCCP enforces Executive Order 11246, which bans federal contractors from discrimination, and, under OFCCP's policies, it defers to the EEOC's definition of sex in Title VII in its interpretation of the definition of sex in the federal contractor order.
Despite repeated questioning on the issue during the two years, OFCCP did not announce it would be protecting trans workers under the existing order until the day after the White House announced that Obama would be signing the new executive order. The Labor Department issued a directive applying that decision to the first order in August.
But after more than two years of this issue being on the table, many key questions about discrimination against transgender people in the workplace are not addressed in the new rule.
Emily Prince, a transgender activist and federal employee who blogs about transgender regulatory issues, pointed out, in her personal capacity, what she views as several unanswered questions, which BuzzFeed News summarized and asked the Labor Department.
"That's great that this is saying, 'Hiring, firing, demotion, those kind of things, you can't discriminate on the basis of gender identity,'" Prince told BuzzFeed News of the new rule. "But, frankly, Macy already said that over two years ago." She laid out the issues she thought were left unaddressed at her blog and discussed them in an interview with BuzzFeed News over the weekend.
Warbelow agreed with Prince, adding that, within the area of benefits, it's not just questions about transgender workers: "If you have a same-sex couple who is in a legal relationship, you must provide equal benefits," she said, noting that it shouldn't matter whether the state in which the employee is located recognized the marriage. "You want to make sure that in [such] a state, if the business is headquartered there, they have to understand that they have to provide spousal benefits. Because that's part of nondiscrimination."
In response to a question about the outstanding transgender issues, a Labor Department spokesperson said further guidance would be forthcoming, "as has been OFCCP's practice" with other rules.
"OFCCP intends to develop more guidance on these and other issues through consultation with the stakeholder community throughout the 120-day implementation period, and afterwards, as has been OFCCP's practice with other new rules it enforces, including Section 503 of the Rehabilitation Act and VEVRAA," the spokesperson told BuzzFeed News. "Agency representatives will meet with stakeholders and colleagues, listen to questions, conduct education and outreach and provide compliance assistance in written and other forms."
Prince, though, said that misses the point — noting that the Labor Department issued internal guidance for the office more than a year ago in order to advise Labor Department employees on how to avoid discrimination against transgender employees.
"This was a big press event," Prince said of the rollout for the new rule, which included a press package available on its website and a conference call with senior department officials and even White House senior adviser Valerie Jarrett.
"They wanted to discuss this, but they didn't have anything substantive ready to discuss. They missed an opportunity where they could have said, 'Here are some of the issues that the transgender community faces, here are some issues that people with non-binary gender identities face in connection with employment,' and explain the problems, explain what's expected of people, and take that press coverage that they were getting and use it to make steps forward."
Warbelow echoed Prince's point, noting, "What it means to experience discrimination is so broad and it manifests itself in so many different ways, and the general public doesn't have a clear understanding of what that is."
The lingering questions about transgender discrimination are particularly relevant given that federal contractors already are barred from discriminating against transgender workers following the August directive, even while further guidance is being developed over the next 120 days.
"We need guidance around issues including access to sex segregated facilities, dress codes, time off from work for medical treatments, hostile work environments," NCTE's Keisling said, adding that the Labor Department is not alone on this front. "We also need clarification like this from other agencies like the [Equal Employment Opportunity Commission], [Office of Personnel Management], and others."