Under the Transgender Umbrella: Improving ENDA's Protections
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UNDER THE TRANSGENDER UMBRELLA: IMPROVING
ENDA's PROTECTIONS
AMY MCCREA*
I. INTRODUCTION
Until recently, stereotypical male and female gender roles could be rigorously
enforced in the workplace,' to the detriment of transgender employees.2 The
umbrella term transgender refers to people whose gender identity, the feeling
that one is male, female, both, or neither,3 may not be the same as their sex at
birth.4 Recent changes have improved workplace protection of gender identity,
but have left behind some transgender individuals who may not permanently
become either male or female.5 Workplace policies may implicitly or explicitly
assume that all employees are on one side or the other of a gender binary,'6 an
imaginary division of people in which one side is completely male and the other
is completely female. However, there are many people to whom the traditional
exclusivity of male and female does not apply. This Article will use the term
non-binary'7 for these individuals, because they do not fit into a binary scheme
in which every person is constantly either male or female.
* J.D. 2014, University of North Carolina School of Law. The author would like to thank Professor
Holning Lau for his advice and guidance. © 2014, Amy McCrea.
1. But see Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989) ([W]e are beyond the day when an
employer could evaluate employees by assuming or insisting that they matched the stereotype associated
with their group. . . ).
2. See Smith v. City of Salem, 378 F.3d 566, 572-74 (6th Cir. 2004) (discussing this history).
3. AM. PSYCHOLOGICAL Ass'N, ANSWERS TO YOUR QUESTIONS ABOUT TRANSGENDER PEOPLE, GENDER
IDENTITY, AND GENDER EXPRESSION 1 (2011), available at http://www.apa.org/topics/sexuality/
transgender.pdf (Gender identity refers to a person's internal sense of being male, female, or something
else.).
4. Id.
5. See Stevie V. Tran & Elizabeth M. Glazer, Transgenderless, 35 HARv. J.L. & GENDER 399, 399
(2012). For example, surgically altering the body would not be effective for a bigender person, since it
could create permanent male characteristics that would be very uncomfortable at times when the bigender
person felt female, or vice versa. See Q&A with Victoria/Gabriel, LAMBDA MAG., Fall 2010, at 14, 14
[hereinafter Q&A]. Transgender people may choose not to undergo surgery or may lack access to it for a
variety of reasons. See Eli Coleman et al., Standards of Care for the Health of Transsexual, Transgender
and Gender Nonconforming People, 13 INT'L J. TRANSGENDERISM 165, 167-68 (2011).
6. See Dylan Vade, Expanding Gender and Expanding the Law: Toward a Social and Legal
Conceptualization of Gender that is More Inclusive of Transgender People, 11 MICH. J. GENDER & L.
253, 264 (2005) (mentioning people whose gender goes far beyond the female-male binary).
7. Id. at 298. Other examples of non-binary gender identity will be discussed in Part IIA, infra.
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Under the Transgender Umbrella: Improving ENDA's Protections
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