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Is There LGBTQ Discrimination in Higher Education?

August 9th, 2021
LGBTQ Discrimination Higher Education

Recently, a former associate professor at Penn State University’s College of Earth and Mineral Sciences filed a discrimination lawsuit against the university, claiming that bias against their transgender status caused denial of tenure.

The professor, a transgender individual who has been diagnosed with gender dysphoria, joined the graduate faculty at Penn State in 2007 and became an associate professor in 2013. Seven out of the other eight candidates for tenure have achieved that status, according to their case. The one other candidate who was denied tenure filed a racial discrimination suit against the university in 2015.

Having published 31 papers and a book while working at PSU, the professor holds that the weak-in-research reason provided by the university for denial of tenure is inaccurate.

This lawsuit, which alleges seven counts of human rights violations and sexual discrimination, is based on discrimination for a disability, gender dysphoria. Under the Americans with Disabilities Act (ADA), employers are prohibited from firing because of disability. The suit also cites the school for violating Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex, and national origin, and Pennsylvania human rights law.

At present, Washington, D.C., and 21 states have laws that prohibit discrimination based on sexual orientation, and 16 of those states have laws that more expressly target bias against transgender people, by prohibiting discrimination based on gender identity and gender expression. Although Pennsylvania does not offer specific protections for lesbian, gay, bisexual, transgender, and queer (LGBTQ) workers, the Civil Rights Act of 1964’s Title VII makes it illegal to discriminate based on sex. That federal law can and has been used to defend LGBTQ community members experiencing discrimination based on sexual identity or perceived sexual identity.

The suit, filed in U.S. District Court for the Eastern District of Pennsylvania, is seeking a jury trial and financial compensation.

Does the Lawsuit Equate Transgender Status as a Disability?

At first glance, this lawsuit may be appearing to equate transgender status with a disability, but that is not the case. Gender dysphoria, which is a condition that some transgender people have, is defined by the National Health Service of the United Kingdom as: a sense of unease because a person’s gender identity and biological sex do not match up.  The unease can lead to anxiety, depression, and have a harmful impact on the daily life of people with this condition.

Therefore, although transgender status is not a disability, gender dysphoria is considered a disability for those individuals who suffer from it.

Gender dysphoria as a disability has been a successful tactic for employment discrimination cases in the past.

In an important case for transgender rights in 2017, a court decision in Pennsylvania, which does not have a law on the books banning LGBTQ discrimination, found that the ADA can cover gender dysphoria. Considered a landmark case, it was filed by a transgender woman who was fired by a retail store after months of reported harassment.

Like this case against Penn State, the 2017 case sought protections under both Title VII from the Civil Rights Act of 1964 and the ADA.

The case was important because it set a precedent that transgender people with gender dysphoria can be protected by the federal disability law. Courts have decided many times that sex discrimination laws ban anti-transgender discrimination, but this case provided an additional legal option for transgender people to fight for their rights in the workplace, as well as in public accommodations and government services.

Why Gender Dysphoria was Not Always Covered under the ADA

When the ADA was first enacted into law in 1990, transsexualism and gender identity disorders were not counted as a disability. The National Center for Transgender Equality, together with many other advocacy organizations, said that gender dysphoria should not be part of that exclusion and questioned the constitutionality of the exclusion.

The 2017 Pennsylvania decision is a powerful agreement with the National Center for Transgender Equality’s stance, and it means that the ADA may protect the rights of transgender people with gender dysphoria and allow them to live according to their gender identity.

The ADA offers protections for those with disabilities across the United States, regardless of state laws. It also requires reasonable accommodations for the disabled, and that means fair and respectful treatment in the workplace, which provides further protection for those who are facing discrimination.

It is important to note that some transgender people suffering from gender dysphoria does not mean all transgender people do. But gender dysphoria is indeed disabling for those who suffer from it and can cause people to become withdrawn in interactions with others. It can only be made worse by negative interactions with others, which is a problem many in the LGBTQ community report on a regular basis.

LGBTQ Discrimination in the Workplace

The discrimination case against Penn State may bring light to a problem that plagues far too many workplaces: LGBTQ discrimination holds back many of America’s talented citizens from moving forward in their careers.

In the Penn State suit, the former associate professor compares their work history with those of the other eight candidates for tenure and cites the university for treating the other candidates differently, calling the treatment inconsistent and incoherent. The suit charges that Penn State acted with transphobic hatred.

The denial of tenure may be considered as akin to not achieving a desired promotion in the non-academic world. But a school denying tenure to a staff member is a delayed firing because the person is generally kept on only until the end of the person’s contract, which often means the end of the school year.

The professor left the university earlier this year and was denied tenure in 2020. Denial of tenure by Penn State meant the university ended the professor’s career there, actions that the professor says negatively impacted their life and career.

Denial of tenure, like promotions and demotions or simply being left out of the loop in department or peer communications in the workplace, is a far more subtle way to discriminate than simply not hiring a person or firing someone when LGBTQ status is known.

In a 2020 survey of more than 1,500 self-identified LGBTQ adults, the Center for American Progress and the University of Chicago found that at least one-third of respondents experienced discrimination in the workplace, in addition to discrimination in their personal lives and in health care access.

In general, the problem with discrimination seemed to be far more prevalent among transgender Americans than it is among other LGBTQ populations, and the study found that younger transgender people experienced far more negative experiences related to their gender than those over 40.

More than half of the transgender respondents reported discrimination in the past year and difficulties accessing necessary medical care because of cost issues. Worse, about a third of the transgender respondents said that they chose to postpone or avoided needed medical care as a result of discrimination issues.

Discrimination in the workplace was also common for transgender workers. More than half of the transgender survey respondents said that discrimination moderately or significantly affected their capacity to be hired, and 47 percent said that being transgender impacted their ability to keep a job.

The report concluded that the discrimination leads to adverse consequences for the financial, mental, and physical well-being of LGBTQ adults, and that the impact of discrimination is seen more in younger generations than older ones.

Philadelphia Employment Discrimination Lawyers at Sidney L. Gold & Associates, P.C. Fight for Victims of LGBTQ Discrimination

Discrimination may be a far too common problem in the American workplace for LGBTQ citizens, but the law does offer protections to right this wrong. If you have been treated unfairly in the workplace, contact the Philadelphia employment discrimination lawyers at Sidney L. Gold & Associates, P.C. Our firm actively supports the rights of those in the LGBTQ community and supports advancement of legislation to further protect those rights. Call us today at 215-569-1999 or contact us online for a free consultation. Located in Philadelphia, Pennsylvania, and Pennsauken, New Jersey, we serve clients in Wilkes-Barre, Scranton, northeast Philadelphia, Bucks County, Chester County, Delaware County, Montgomery County, and Cherry Hill, South Jersey.

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