Chapter three: Employment Discrimination

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When LGBT individuals challenge job-related decisions based on their sexual orientation and gender identity, they are asserting the right to be treated as equal citizens in matters of employment.

Article 6 of the Covenant on Economic, Social and Cultural Rights obliges States Parties to “recognise the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts”. When LGBT individuals challenge job-related decisions based on their sexual orientation and gender identity, they are asserting the right to be treated as equal citizens in matters of employment. For many years this was a controversial proposition. Where same-sex sexual conduct was criminalised, States often enacted statutory prohibitions on employment. Even criminal laws had not been passed, terms such as “moral turpitude” or “immoral behaviour” were often used to bar gay men and lesbian women from jobs. Certain fields of employment, especially teaching and police professions, were essentially closed to people who were suspected of or who admitted to being gay or lesbian. Transgender individuals still frequently stand to lose jobs (or job offers) when they are in the process of gender transitioning.

A number of questions recur in employment discrimination cases. Is an individual’s personal sexual conduct (whether deemed illegal or merely immoral) relevant to work performance? May an individual be fired for being gay or lesbian? Is conduct to be separated from status or is status defined by conduct? Are transgender individuals protected by sex discrimination prohibitions? Are transgender individuals protected with regard to their sex or because they have changed their sex? More broadly, privacy and equality are themes that also appear clearly.

In the United States, challenges to workplace discrimination were sometimes more successful than direct challenges to sodomy laws. In 1960 consensual sodomy was a crime in every State of the United States, and “almost all the states excluded these purported ‘sex criminals’ from securing teaching certificates or professional licenses, [and] no state allowed open lesbians or gay men to serve as police officers or other public servants”.^[1] In 1960, a government scientist named Franklin Kameny lost his job for allegedly soliciting sex from an undercover police officer. He sued to get his job back, without success, and then filed a pro se petition with the US Supreme Court in which he argued that the “immoral conduct” bar was an unconstitutional “attempt to tell the citizen what to think and how to believe”.^[2] He lost, as did many gay and lesbian plaintiffs who followed in his footsteps.

Norton v. Macy, decided in 1969, was a landmark case. The appellate court rejected the arguments of the civil service commission that an employee’s after-work sexual encounters influenced his ability to perform his job. Although the court conceded that the civil service commission could label the employee’s homosexual conduct “immoral” or “disgraceful”, this alone did not end the inquiry. “The range of conduct which might be said to affront prevailing mores is so broad and varied” that only conduct that had an actual impact on the job function was sufficient to justify termination.^[3] This is known as the nexus requirement. In Morrison v. State Board of Education, the petitioner’s teaching diplomas were revoked by the State Board of Education after he admitted to having a brief sexual relationship with another man. The Supreme Court of California, following Norton v. Macy, decided that the terms “immoral conduct” and “moral turpitude” in the code of conduct for teachers were only constitutional if they related to acts that indicated unfitness to teach. Because the Board of Education had failed to show that petitioner’s conduct affected his performance as a teacher, he could not be subject to disciplinary action.

Other cases were influenced by the US Supreme Court’s 1986 decision to uphold the State of Georgia’s sodomy law. If it was constitutional to criminalise conduct that defined the class of homosexuals, then discriminatory employment action against homosexuals could not be prohibited on constitutional grounds. These cases conflate status and conduct. In Padula v. Webster, for example, the plaintiff challenged a decision by the Federal Bureau of Investigation not to hire her after she disclosed that she was a lesbian. She argued that her sexual orientation should be regarded as a suspect or quasi-suspect classification, such that any difference in treatment was inherently to be regarded as suspect and subject to strict judicial scrutiny. The D.C. Circuit disagreed. In light of Bowers v. Hardwick, the Court reasoned that “a status defined by conduct that states may constitutionally criminalise” could not be a suspect class under the equal protection clause. Discriminating against an individual on the basis of her same-sex sexual orientation could not be considered “invidious discrimination” because there could “hardly be more palpable discrimination against a class than making the conduct that defines the class criminal”. In other words, the US Supreme Court’s decision to uphold Georgia’s sodomy law meant that homosexuals as a class could be discriminated against, regardless of whether or not they engaged in criminalised sex.

In India, Section 377 of the Penal Code prohibits consensual same-sex sexual conduct. The High Court of Delhi found unconstitutional Section 377 in July 2009, but that decision was pending appeal to the Supreme Court at the time Siras v. Aligarh Muslim University was decided. (See Naz Foundation in Chapter 1.) In Siras, the petitioner was a professor who had been evicted from his campus housing and suspended from his teaching position after he was surreptitiously filmed having sex in his home with a male partner. The charge against him was that he had engaged in “immoral sexual activity in contravention of basic moral ethics”. The High Court at Allahabad explicitly refused to consider this charge (or its relevance in the Naz Foundation case), except to note that the petitioner had not been charged or convicted of any criminal offence: the issue was moral turpitude with regard to his employment, and here the Court held that the petitioner’s sexual preference did not amount to misconduct and that his right to privacy had been violated. As an interim measure, it ordered a stay of the order that suspended him and removed his university housing.

The other cases in this chapter are from jurisdictions that did not criminalise sexual activity. Sentencia C-481/98, decided by the Constitutional Court of Colombia in 1998, is an employment discrimination case that illustrates both the equality and liberty/autonomy arguments. It concerned the constitionality of Decree 2277 of 1979, which provided that homosexuality was a ground for discharge in the teaching profession. The Court considered whether an individual’s sexual orientation was innate or a matter of personal choice. If the former, it was akin to sex, a ground protected from discrimination by Article 13 of the Constitution. If the latter, it was an issue of autonomy, protected by the right to free development of personality under Article 16. Differences in treatment based on sexual orientation, as an innate or biological trait, were subject to the most stringent judicial review, and could only be justified by showing that the difference in treatment was the sole means available to satisfy a compelling public interest. Where sexual orientation was considered a question of personal choice, it was also protected, because the rights to privacy and free development of personality guaranteed individual self-determination, provided that this did not interfere with the rights of others or the legal order. The Court also noted that it was required to follow the decision of the Human Rights Committee in Toonen v. Australia, which had included sexual orientation within “sex”, under Articles 2 and 26 of the ICCPR.^[4]

For the District Court of St. Petersburg (Russian Federation), the case of P v. State Health Institution, turned on the medical status of homosexuality. Because it was no longer classified as a mental disorder by the Ministry of Health or the World Health Organization at the time of the applicant’s medical examination for employment with the railway in 2003, the Court declared that an earlier diagnosis of “perverse psychopathy” was not relevant and that a decision by the Railway Clinic to disqualify the applicant was therefore unlawful.

Schroer v. Billington examined an offer of employment made to a counter-terrorism research specialist which was withdrawn after he informed his prospective employer that he would be transitioning from male to female. The employer claimed that the plaintiff might not be able to obtain a security clearance, and that a transgender woman would lack credibility with military contacts or when testifying before Congress. The federal district court in Washington, D.C., rejected both arguments on the grounds that “deference to the real or presumed biases of others is discrimination”. It held that Schroer had been subjected to discrimination both because of sex stereotyping (she no longer had a masculine appearance) and because of sex itself, since discrimination based on gender identity is a form of sex discrimination. Here the Court drew an analogy between changing one’s sex and changing one’s religion. If discrimination against religious converts was discrimination on grounds of religion, the refusal “to hire Schroer after being advised that she planned to change her anatomical sex by undergoing sex reassignment surgery was literally discrimination ‘because of … sex’”.

Schroer v. Billington is significant for two reasons. Previous US cases had rejected claims of discrimination based on gender identity.^[5] In Price Waterhouse v. Hopkins, however, the US Supreme Court had ruled that equal employment law covered discrimination based on gender role stereotyping. Although Price Waterhouse concerned a woman whose appearance and manner of dress were not viewed as stereotypically feminine, its reasoning has since been applied to cases of transgender employment discrimination.^[6] Since Price Waterhouse, courts have found that differences in treatment, that are based on non-conforming appearance and behaviour with regard to gender, fall within prohibited grounds of discrimination, based on sex. As one court explained:

Nevertheless, courts did not protect transgender individuals as a class. Rather, their claims were framed in terms of gender nonconformity (corresponding to the sex stereotyping claim of Price Waterhouse). In Schroer, for the first time a court recognised, not only a sex stereotyping claim but a claim based on transition from one sex to another.^[8]

A contrasting approach was taken in the 1996 case of P v. S and Cornwall County, where the European Court of Justice (ECJ) also concluded that discrimination against a transgender employee constituted sex discrimination, prohibited under the EU Equal Treatment Directive.^[9] The Equal Treatment Directive prohibited differential treatment on the grounds of sex, and the question before the ECJ was whether a difference in treatment based on gender reassignment constituted a difference in treatment based on sex. According to the Court, the scope of the directive could not be “confined simply to discrimination based on the fact that a person is of one or other sex”. It also applied to people who chose to change gender.

Such discrimination is based, essentially if not exclusively, on the sex of the person concerned. Where a person is dismissed on the ground that he or she intends to undergo, or has undergone, gender reassignment, he or she is treated unfavourably by comparison with persons of the sex to which he or she was deemed to belong before undergoing gender reassignment.^[10]

For the ECJ, the issue is not gender non-conformity but involves a comparison between an individual’s treatment before and after sex reassignment. Because of the ECJ’s jurisprudence in this area, transgender individuals are protected against employment discrimination under the prohibitions against sex discrimination. In addition, the Gender Equality Directive of 2006 includes a specific reference to discrimination based on gender reassignment.^[11]

In Europe, explicit prohibitions now apply to employment discrimination based on sexual orientation and on gender identity. EU Council Directive 2000/78/EC established a general framework for equal treatment in employment and occupation, which requires that member States adopt legislation to prohibit direct and indirect discrimination on grounds of sexual orientation in both public and private employment.^[12] Although some States had already enacted legislation prohibiting employment discrimination on grounds of sexual orientation prior to the Directive, few significant court cases have challenged employment decisions.^[13]

For members of the Council of Europe, Article 14 of the European Convention on Human Rights prohibits discrimination on the basis of sexual orientation and gender identity with respect to the rights and freedoms guaranteed by the Convention. In the cases of Lustig-Prean and Beckett v. United Kingdom and Smith and Grady v. United Kingdom (both 1999), the European Court overturned a ban on homosexuals in the armed forces on the grounds that the ban violated the right to respect for private life. (See Chapter Five.) However, because the Convention binds State parties, it applies only to legislation and to public employers. In 2010 the CoE Committee of Ministers adopted Recommendation (2010)5, which provides, in part, that Member States should “ensure the establishment and implementation of appropriate measures which provide effective protection against discrimination on grounds of sexual orientation or gender identity in employment and occupation in the public as well as in the private sector”.^[14]