Florida Legislator Wants To Make It Illegal To Say Gay (Or Your Pronouns) At Work

Florida seems to be in a race with Texas and some other red states to see which can be the worst state for employees in the nation. Now a legislator has proposed a law (which will likely pass, because GOP be cray cray) that would be similar to the now-infamous Don't Say Gay bill but apply to workplaces. 

Some gems from this ridiculous-but-likely-to-become-law bill include:

Training is illegal: It would be illegal to provide training that included issues of gender expression, gender identity, or sexual orientation.

Pronouns are illegal: It would be illegal to discuss your preferred pronouns or for your employer to tell anyone else your preferred pronouns.

Misgendering is legal: It would be illegal for an employer to punish coworkers for deliberate misgendering.

This idiotic law would apply to state employees and nonprofits. So nonprofits that cater to the LGBTQ community would not be able to train employees, discuss pronouns, or punish employees for deliberate misgendering of trans people, including their clients. 

As I said, Florida is likely to pass this law, and our governor will, of course, sign it. So brace yourselves.

The good news is that LGBTQ discrimination is illegal under Title VII, so I'm sure there will be litigation over this. The Supremes are the ones that said Title VII applies to sexual orientation and societal expectations regarding gender roles. Will they reverse themselves? Very possibly.

Vote well friends. Vote blue in every single election if you want the crazy train to stop.

SNL's "It's Pat" Shows How Easy It Is To Respect Nonbinary Coworkers

 With all the anti-trans stuff coming out of the GOP, and especially Florida, I started thinking about an old Saturday Night live sketch, “It’s Pat.” And when I first thought about it, I thought it might be considered offensive to nonbinary people now. But then it occurred to me that the sketch actually shows how easy it is to respect the pronouns of nonbinary workers. The sketch features a character named Pat, whose gender is not specified or obvious, and is played by Julia Sweeney.

The other characters in the sketch are confused about which pronouns (either "he" or "she") and other gender-specific terms to use to refer to Pat, so they avoid using gender-specific language. For instance, on Pat’s birthday they start to sing, “For he’s/she’s a jolly good fellow,” but after a mixture of choices they settle on, “For Pat’s a jolly good person.” Pat’s coworkers ultimately refer to Pat as “they/them” in order not to misgender Pat. They did this naturally, if a little awkwardly, before the use of neutral pronouns became both common and a political football.

The sketch is meant to be humorous, but it also demonstrates both the ease of using the correct pronouns for nonbinary workers, and how we used to have more respect for our fellow humans. Nowadays, the right would probably say the sketch is too "woke" and claim offense of the use of neutral language. Using the correct pronouns is a basic form of respect and helps to create an inclusive and welcoming workplace for all employees. This sketch shows that it is not difficult to respect the pronouns of nonbinary workers and that everyone can do it with a little effort and awareness.

Like with the coworkers in “It’s Pat,” sometimes neutral language and pronouns can be confusing at first. But with a little effort and respect, it is actually pretty easy. If you make a mistake, just correct it. Deliberately misgendering people is cruel and disrespectful.

By demonstrating the ease of using the correct pronouns, the sketch should encourage everyone to make an effort to be more inclusive and respectful in their interactions with nonbinary coworkers.

Florida Don't Say Gay Bill Arguably Requires 100% Gender Neutrality Until 4th Grade

 Florida teachers and school boards will have to be very careful now that the Florida legislature has passed the "Don't Say Gay" bill. It's actually called the "Parental Rights in Education" bill, and it addresses a number of issues. The big one, the most controversial one, is meant to keep teachers and schools from discussing LGBT issues in class. But that's not quite what it says.

Here's the provision:

Classroom instruction by school personnel or third parties on sexual orientation or gender identity may not occur in kindergarten through grade 3 or in a manner that is not age appropriate or developmentally appropriate for students in accordance with state standards. 

Nowhere does the bill define either "sexual orientation" or "gender identity" to limit those terms to only LGBT issues. So we're left with the standard definitions of those terms. 

Websters defines "sexual orientation" as "a person's sexual identity or self-identification as bisexual, straight, gay, pansexual, etc. : the state of being bisexual, straight, gay, pansexual, etc."

Yes. Straight is included. Heterosexual is included.

Websters defines "gender identity" as "a person's internal sense of being male, female, some combination of male and female, or neither male nor female."

Yes, people born male and identifying as male are included. People born female and identifying as female are included.

As I read this, strictly construing the actual words used in the statute, there can be no instruction in K-3rd grade using the terms "boys," "girls," "husband," "wife," "mother," or "father." All instruction must be completely gender neutral, using "they" or "them." Students cannot be instructed to use the "boy's room" or the "girl's room." For gym, they cannot be instructed to use the "boy's locker room" or the "girl's locker room."

Is this what the legislature intended? Probably not. It was intended as a measure to bully LGBT students and their parents. But I think those parents can fight back by demanding absolute gender neutrality in their student's education in K-3. Once they're in 4th grade, the school can then instruct them about gender identity, including boy/girl, and sexual orientation, including heterosexuality.

So when teachers tell their students to draw a picture of their families, they can say the picture is of a parent, but not mom or dad. When teachers discuss married couples in history, they can say they were spouses, not husband or wife. And maybe that's the way it should be.

I think parents of LGBT should demand their rights under this statute once it's signed by the Governor. If my kids were still in school, I'd do it immediately. Tell the Florida legislature to be careful what they wish for.

Under the rest of the bill, there's a process. School districts must develop a plan and notify parents of the process to address any concerns, first at the school level, and then at the district level. Then, if not resolved, the parent may either ask for an administrative magistrate to hear the issue or file a lawsuit.

Teachers should advise the schools that they will only teach in gender neutral terms. School boards should set policies in accordance with the actual language of this bill.

Teachers who object to any other form of non-gender-neutral instruction can argue they are protected whistleblowers if they are disciplined for refusing to disobey this ridiculous law.

How Transgender Discrimination Cases Affect Straight Employees

There's a case in front of the Supreme Court right now that will answer whether employers may discriminate against transgender workers. The orange one's administration says employers should be able to discriminate against trans people. If you think that case won't affect you because you're straight or not transgender, think again.

When I was starting out in law practice, a judge decided that women were prohibited from appearing in his court in pants. There was an outcry, of course, and the judge had to reverse course. I didn't wear anything but pants in court for years after that, and still mostly wear pants. The Department of Justice has supported the funeral home owner in the transgender discrimination case, and that owner has specifically stated that he would fire any woman who refused to wear a skirt to work. The DOJ thinks that's just fine and dandy.

Transgender discrimination is part of sex discrimination, and that's why some courts have said its illegal. The theory is that trans people don't meet gender stereotypes of what a man or woman should look like, dress like and behave like, and that if they were another gender they wouldn't have any issues.

These cases impact more than just trans employees because they affect any worker that doesn't fit in with sexual stereotypes. A woman that wants to wear pants, a man that doesn't like football, a woman that drinks beer and watches sports with the guys, a man that enjoys sewing, a woman who drives a muscle car, a man who wears pink clothes, the list can go on and on of behaviors and appearances that might not meet a boss's expectations of what a man or woman should be.

If you look back at other discrimination cases, you can see that they had a positive impact on others outside their protected class. Sex discrimination cases involving height and weight requirements for police and fire allowed smaller men to choose those professions as well as women. Disability discrimination cases involving wheelchair access also allows parents with strollers easier access to buildings. By eliminating arbitrary restrictions on employment and accessibility, we make things better for many people.

So if you aren't typical of your gender, if you don't fall into 100% of what people traditionally think your gender should be (and isn't that most of us in some way?), or if you just want to wear pants or pink to work, then you should be rooting for the trans workers who are fighting for legal protections against discrimination. Let's not go back to the bad old days of strict gender roles in society.

North Carolina Now Requires Men To Use Your Employer's Ladies' Room

If you work in North Carolina, be warned: your employer now has to require men to use the ladies' room. Not all men, but some men. These men have beards, mustaches, and yes, penises. But they have to use the ladies' room due to a new law just signed by your governor. And if you're a business, you are now legally required to humiliate some customers and allow others to be frightened. This law was meant to attack the LGBT community, but it will have some unintended consequences.

As I sat writing this I looked over one of the most beautiful vistas on the planet. You see, I was on vacation in North Carolina, a place I truly love. The people here are so nice. So what the heck is going on with the North Carolina legislature? How did this lovely place turn into the epicenter of a nasty anti-LGBT potty obsession?

While I was on vacation enjoying spring in the mountains, the North Carolina legislature enacted an ugly set of laws attacking the LGBT community. The worst of these is a law requiring businesses to only allow people to use the restroom designated for their "biological sex" defined as "The physical condition of being male or female, which is stated on a person's birth certificate."

So let's think about the effect of this really stupid bill.  Here are just some of the ridiculous consequences that will result:

• You're a business owner. A major client was born male but dresses as a female, considers herself female, and has had the operation to become female. You can't let her use the ladies' room. Bye, bye client.
• You're in the ladies' room. A person who dresses like a male, has a beard, and a low voice enters the ladies' room. Oh, yeah. He has a penis. It turns out the male was born female. Not only do you have to let him use the facility, but the business owner can't try to prevent this. 
• You were born male but dress as a female. You consider yourself female. Your coworkers and boss have accepted you as a female. Your employer can't let you use the ladies' room. You have to use the men's room, explain to customers why you are in the men's room, and risk being attacked in the men's room by anyone who is either homophobic or just a rapist. 
• You're an employer. Your employee is a female who identifies as male. He dresses like a male, has taken hormones that cause him to have a beard, and goes by a male name. You have to require him to use the ladies' room. Your female employees object and say it's sexual harassment to have him there. Female customers object. You're damned if you do and damned if you don't let him use the men's room. 
• Your top female customer has a male autistic child age 7. You have to stop her from taking him in the restroom with her because the law has an exemption only for children under age 7 to accompany an adult of the opposite sex. She has to leave this child unaccompanied outside the restroom if she really has to go.

As a female who identifies as female, I really don't appreciate the North Carolina legislature telling me that I have to share the ladies' room with a female-born who identifies as a male. As a parent, I don't appreciate the legislature telling parents they have to leave their children unaccompanied if they need to use the facilities. As a business owner, I wouldn't appreciate the North Carolina legislature telling me I have to humiliate a client or an employee.

The good news is that this is a law with zero teeth. The North Carolina legislature included no penalties in the law for violations. There is no criminal or civil penalty if you break this law. What are business supposed to do? Demand to see a birth certificate before entry to the restroom? There is absolutely no way for businesses to practically monitor their restrooms to enforce this law. Plus, business risk violating federal anti-discrimination laws if they enforce this new law.

My advice to the transgendered: use the restroom you feel comfortable in. My advice to parents: take the kid with you. My advice to employers: don't get involved in employee potty issues. They just want to pee.

If you're transgender and want to understand your rights in North Carolina, talk to an employment lawyer in your state.

Grow Up! Florida Legislators Need To Get Over Potty Issues

Potty issues are apparently a big political concern here in Florida.

When I first moved to Florida from the liberal Northeast, I became involved in the campaign to pass the Equal Rights Amendment. I thought it was a no-brainer. But while phone banking I encountered numerous people arguing with a straight face that passing the ERA would mean unisex bathrooms. I was astounded. Well, now we have plenty of unisex bathrooms in this country and the world didn't end.

Yet Florida legislators haven't gotten over their potty issues. Last year, a bill that would have made it a crime to use a bathroom marked for the opposite sex passed one committee before dying a well-deserved death in another. The bill was so poorly written that it would have been a crime to change a male baby's diaper in a women's restroom. All for the purpose of harassing the transgendered.

Just when I thought the worst of the potty issues had come and gone, this happened: a bill to make LGBT discrimination illegal in Florida failed because Florida legislators fear they'll pick up gay cooties in the potty. Well, okay, they didn't actually say cooties. But, in the words of one Republican lawmaker, “you could have a lot of weirdos doing weird things in bathrooms.” These legislators claim they fear that men could dress up as women and really be sexual predators out to attack women in bathroom stalls. Alrighty then.

Here's the thing. Sexual predators could do that very thing right now. There's nothing to stop them other than that it's already illegal to sexually assault people, whether in restrooms or elsewhere. And there has not been a single reported instance of any attack by a transgender person against a person of the opposite sex in any restroom in any state where LGBT anti-discrimination laws have passed. Not one. Zero. Zip.

I'm way more concerned for the transgender man who identifies as a woman and the post-op transgender woman who dress as females yet have to use the men's room. Not only are they being forced to put themselves at risk of physical or mental abuse, but isn't that more disturbing to men and women than just letting people use the potty they feel comfortable using?

The argument, in short, is specious. Which brings me back to cooties. Because that's the only explanation I can come up with for this silly argument. Yet we are continuing to allow legalized discrimination against gay workers in Florida all because Florida legislators haven't gotten over their potty issues.

So I say to Florida legislators, grow up! Get over your potty issues and pass a law that most of Florida's major corporations support and that will actually benefit voters in our state.

Florida Bill Would Make It A Crime To Change Male Baby's Diaper In Ladies' Room

In a proposed bill directed at legalizing both discrimination and harassment of transgendered people, Florida Representative Frank Artiles (R- Hell, er, I mean, Miami) has proposed a bill making it a crime for a person born of one sex to enter a public restroom designated for the other sex. The point, I believe is to maximize humiliation and embarrassment for both pre- and post-op transgendered citizens and tourists of Florida.

The bill says:

"Sex" means a person's biological sex, either male or female, at birth. For purposes of this paragraph, the term "male" means a person born as a biological male and the term "female" means a person born as a biological female.

The crime:

A person who knowingly and willfully enters a single-sex public facility designated for or restricted to persons of the other biological sex commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

The supposed purpose:

The purpose of this act is to secure privacy and safety for all individuals using single-sex public facilities.

It even provides that you can sue the person who enters the restroom and the owner of the restroom:

A person who knowingly and willfully enters a single-sex public facility designated for the other biological sex is liable in a civil action to any person who is lawfully using the same single-sex public facility at the time of the unlawful entry for the damages caused by the unlawful entry, together with reasonable attorney fees and costs.

And

An owner of public accommodations, a school, or a place of employment who maintains single-sex public facilities and advertises, promotes, or encourages use of those facilities in violation of subsection (2), or fails to take reasonable remedial measures after learning of such use, is liable in a civil action to any person who is lawfully using those facilities at the time of the unlawful entry for the damages caused by the unlawful entry, together with reasonable attorney fees and costs.

So let's think about the effect of this really stupid bill.  Here are just some of the ridiculous consequences that will result if passed:

1. You're a business owner. A harried mom with a baby and a male toddler asks for directions to the ladies' room. You don't stand and bar the door. Instead, you're a human being. You direct her to the restroom. You can be sued. The male toddler can be arrested. If the baby is male, he can possibly be arrested, or the mom could be arrested for contributing to the delinquency of a minor.
2. You're a business owner. A major client was born male but dresses as a female, considers herself female, and has had the operation to become female. You can't let her use the ladies' room. Bye, bye client.
3. You're in the ladies' room. A person who dresses like a male, has a beard, and a low voice enters the ladies' room. Oh, yeah. He has a penis. It turns out the male was born female. Not only do you have to let him use the facility, but the business owner will be sued if they try to prevent this. 
4. You were born male but dress as a female. You consider yourself female. Your coworkers and boss have accepted you as a female. It is a crime for you to use the ladies' room. You have to use the men's room, explain to customers why you are in the men's room, and risk being attacked in the men's room by anyone who is either homophobic or just a rapist. 
5. You're a middle school principal. Some 12-year-old boys think it's hilarious to toss a mouse into the girl's room. The girls scream. You catch the boys running away. The school can be sued if it fails to take unspecified "remedial measures" regarding the prank, and the boys just committed a crime.
6. You're an employer. Your employee is a female who identifies as male. She dresses like a male, has taken hormones that cause her to have a beard, and goes by a male name. You have to require him to use the ladies' room. Your female employees object and say it's sexual harassment to have him there. Female customers object. You're damned if you do and damned if you don't let him use the men's room. You're sued either way.

As a female who identifies as female, I really don't appreciate the Florida legislature telling me that I have to share the ladies' room with a female-born who identifies as a male, nor that I would have to leave a male toddler outside the ladies' room in order to use it. As a business owner, I don't appreciate the Florida legislature telling me I have to humiliate a client or an employee.

This is the dumbest thing I've ever seen out of the Florida legislature, and that includes the fact that they failed to pass a law against bestiality for years, until it finally passed in 2011 (apparently the pro-bestiality lobby is strong in Florida). Hopefully the Florida legislature will realize this bill for the dumba** proposition it is and vote it down.

I'm not optimistic.

ENDA (Banning Sexual Orientation Discrimination) Passes In Senate What It Will Mean If It Becomes Law

ENDA is the Employment Non-Discrimination Act, and the Senate just passed it. I wouldn't get too excited yet, because unless Republicans lose their majority in the House in the midterm elections we aren't likely to see this become law anytime soon. Still, I thought it would be worthwhile to discuss what the law will do (and what it won't do) if passed in the House and signed into law.

Read my article in AOL Jobs to find out what ENDA will do if it becomes law, and what it won't do, despite what detractors are saying.

Transgendered Employees Are Protected Against Discrimination

The EEOC, in a landmark decision, has declared that Title VII protects transgendered employees under its prohibition against sex discrimination. This ruling isn't too surprising considering that gender stereotyping has long been considered sex discrimination. Here's what EEOC said:

That Title VII’s prohibition on sex discrimination proscribes gender discrimination, and not just discrimination on the basis of biological sex, is important. If Title VII proscribed only discrimination on the basis of biological sex, the only prohibited gender-based disparate treatment would be when an employer prefers a man over a woman, or vice versa. But the statute’s protections sweep far broader than that, in part because the term “gender” encompasses not only a person’s biological sex but also the cultural and social aspects associated with masculinity and femininity. 

EEOC went on to say that sexual stereotyping isn't the only way that transgendered discrimination can be illegal:

Although most courts have found protection for transgender people under Title VII under a theory of gender stereotyping, evidence of gender stereotyping is simply one means of proving sex discrimination. Title VII prohibits discrimination based on sex whether motivated by hostility,11 by a desire to protect people of a certain gender,12 by assumptions that disadvantage men,13 by gender stereotypes,14 or by the desire to accommodate other people’s prejudices or discomfort.15 While evidence that an employer has acted based on stereotypes about how men or women should act is certainly one means of demonstrating disparate treatment based on sex, “sex stereotyping” is not itself an independent cause of action.

EEOC went on to give examples of how a transgendered individual might prove sex discrimination:

For example, Complainant could establish a case of sex discrimination under a theory of gender stereotyping by showing that she did not get the job as an NIBIN ballistics technician at Walnut Creek because the employer believed that biological men should consistently present as men and wear male clothing. Alternatively, if Complainant can prove that the reason that she did not get the job at Walnut Creek is that the Director was willing to hire her when he thought she was a man, but was not willing to hire her once he found out that she was now a woman—she will have proven that the Director discriminated on the basis of sex. Under this theory, there would actually be no need, for purposes of establishing coverage under Title VII, for Complainant to compile any evidence that the Director was engaging in gender stereotyping.

Here's the part I found the most interesting, and I thought the analysis was spot-on. EEOC compared discrimination against transgendered employees to religious discrimination against a convert:

Imagine that an employee is fired because she converts from Christianity to Judaism. Imagine too that her employer testifies that he harbors no bias toward either Christians or Jews but only ‘converts.’ That would be a clear case of discrimination ‘because of religion.’ No court would take seriously the notion that ‘converts’ are not covered by the statute. Discrimination “because of religion” easily encompasses discrimination because of a change of religion.

Applying Title VII in this manner does not create a new “class” of people covered under Title VII—for example, the “class” of people who have converted from Islam to Christianity or from Christianity to Judaism. Rather, it would simply be the result of applying the plain language of a statute prohibiting discrimination on the basis of religion to practical situations in which such characteristics are unlawfully taken into account.

What does this all mean? How does it affect the rights of transgendered employees? EEOC is not a court and it isn't Congress, so it can't make law. The opinion gives us a glimpse as to how EEOC will view charges of discrimination brought by transgendered employees. That means transgendered employees will have an easier time convincing EEOC to find "cause" for their charges of discrimination. But that doesn't mean they necessarily win.

Once EEOC finds cause (or that they're unable to determine whether or not cause exists), the employee will still have to sue if the employer doesn't settle. That means the courts could decide differently than EEOC. It happens all the time that courts disagree with EEOC's world view.

This decision is a major step in the right direction. The only way to be sure of an outcome will be if Congress decides to clarify Title VII one way or the other, or if the Supreme Court rules on this issue. In the meantime, for now we can assume that transgendered employees have some rights under Title VII.