You see, DOL has declared an alignment with the Equal Employment Opportunity Commission (EEOC), which in 2012 concluded that “discrimination based on a person being transgender is sex discrimination in violation of Title VII of the Civil Rights Act of 1964,” (Macy vs. Holder). But there’s more. In aligning with EEOC’s interpretation of sex discrimination in Title VII, DOL is ultimately endorsing the protection of any employee from discrimination based on “sex stereotyping”: expectations for how a man or woman should act. (See the 2013 case of EEOC vs. Boh Bros. Construction Co.)
This image is from an inspiring presentation I recently attended at a major corporation. It was given by Denise Norris, who presents worldwide on the topic of gender authenticity and expression. The talk was incredibly effective. So often discussions about gender can seem abstract and esoteric. But Norris connected with the entire crowd of professionals, awakening them to an immediate and intuitive understanding of how issues of gender expression and perception in the workplace apply to absolutely every one of us.
Norris’ work can help us flesh out what Title VII really means by discrimination based on “sex stereotyping,” in clear, accessible, human terms. To begin with, consider all of your reactions to the image.
In the diagram below, Norris puts language to the gender cues you are responding to:
She then introduces a model to articulate how we all send and receive gender cues all the time; consciously or not.
The slide below depicts the various factors that influence the gender cues we send to other people.
Some of these influences on our gender expression are hard-wired–e.g., sexual orientation, gender identity–and so the cues we send are involuntary. Denise used a great analogy to explain how these aspects of self, our orientation, cannot be changed saying:
You can’t kill yourself by holding your breath. You’ll just pass out, and then start breathing again. (Trust me, I’ve tried.) So, you can communicate a different orientation or identity for an indeterminate amount of time; this is how we distinguish between expression, and identity/orientation. You can monkey with your gender expression depending on the situation, just as you can monkey with your breathing when you talk. But you can’t change your identity or orientation any more than your need to breathe.
Some of these influences are outside of us: e.g., gender stereotypes. And in the flicker of each moment, each situation–e.g., social, professional–we consider the potential rewards or penalties for our gender expressions. In some cases we voluntarily send these gender cues hoping for a specific result, but as Denise articulates in her analogy, there are many ways in which we just can’t control what we send.
Then there’s the person on the receiving end:
When you are in this position you are decoding the gender cues you receive from another person. You use influences outside of your self–e.g., stereotypes, social circumstances–as well as those that are internal: e.g., your own sexual and gender orientations. You engaged in this very process in this very way just now, while observing the image of the person above.
Trouble occurs when the observer of another person believes their perceived gender violates gender rules: i.e., the person they see presents with a non-conforming gender expression. This is when people get fired without justification; are mistreated when applying for a driver’s license; are not allowed to go to the prom with a date of their choice etc. This form of discrimination forces us to contort ourselves, to hold our breath and hide our gender expressions for fear of being treated unlawfully and unfairly; what I call don’t act, don’t tell. (I’ve written about this here, here, and here).
The Department of Labor’s announcement revokes don’t act, don’t tell. It is now up to us to follow Denise Norris’ lead and put words to our own experiences of gender. This is how we might hold DOL to their proposed standard: to protect us all from sex stereotyping.
Copyright Mark O’Connell, L.C.S.W.
Slides, Copyright Denise Norris