Privacy Issues Pertaining to Gender Identity and Sexual Orientation
Madison Buske and Lauren Griffin
Almost every college student faces challenges upon entering a new school; choosing the right classes, learning to live with a complete stranger, and finding a group of friends where one feels comfortable can be very taxing at times. For Annie*, a college freshman in 2003, the biggest challenge was her gradual physical transition from a male to a female under the prying eyes of her peers. As if fitting into a new environment is not grueling enough, she also had to battle the complete loss of privacy at a very crucial and intimate period in her life. Dorm rooms tend to be small enough as they are, let alone being forced to share the limited amount of personal space with another person or persons. Even in resident halls where the bathrooms are not co-ed, the community style bathrooms can be an intimidating environment for college students sharing the same facilities for showering and other daily rituals in various stages of dress. The dorms proved to be difficult for Annie, but progressing into the corporate world opened up a Pandora’s Box of issues relating back to her gender identity, which will be addressed later in this chapter.
Dealing with the issue of expressing one’s gender identity yet still maintaining privacy in a world that can be unaccepting, can cause a strain on everyday life. However, worrying about how to make a living to support this type of lifestyle is even more unsettling. Should the corporate world have knowledge of the gender identity and sexual orientation of an individual when hiring? Do they have the right to hire or fire an individual based on knowledge of their sexual orientation? Is it acceptable even if this information is voluntarily submitted? What type of rights do these individuals have to protect their privacy and do they stand up to the law?
This chapter will provide readers with a general overview of what exactly gender and transgender identity, sexual orientation, and gender expression are is and how they may affect an individual’s private life. The topic will be explored further through real life cases where a person’s privacy was compromised through the use of technology. This chapter will delve into the issues surrounding college-aged students and young adults who identify themselves in a category that is different from the norms of society. A series of questionnaires and interviews were conducted to determine their knowledge of the discrimination against their “unprotected class.” A number of employers were also interviewed about their hiring policies that are not mandated by the Equal Employment Opportunity Commission (EEOC), and if the use of the Internet has any impact on their hiring decisions.
The Difference between Gender Identity, Sexual Orientation, Gender Expression, and Transgender
The Human Rights Campaign (HRC) is America’s largest gay, lesbian, bisexual and transgender organization. They “effectively lobby congress; mobilize grassroots actions in diverse communities; invest strategically to elect a fair-minded Congress; and increase public understanding through innovative education and communication strategies” (Sheehy). This organization hopes to increase equality based on sexual orientation and gender expression to better improve the lives of gay, lesbian, bisexual and transgender individuals in their community and at work.
Below are terms Catherine Sheehy, a member of the HRC, defined, which have been included to help readers fully grasp the context of this chapter:
- Gender expression is all “external characteristics and behaviors that are socially defined as either masculine or feminine, such as dress, mannerisms, and physical characteristics.”
- Gender identity is a person’s “deeply felt psychological identification as male or female which may or may not correspond to the person’s body or assigned sex at birth.”
- Sexual orientation refers to an individual’s “physical and/or emotional attraction to the same and/or opposite gender.”
- Transgender individuals are those “whose gender identity falls outside stereotypical norms and do not wish to permanently change their physical characteristics (sometimes referred to as a cross dresser).”
- Transsexual people identify with the “roles and expressions associated with a sex that is different than the one they were assigned at birth.” A transsexual changes his/her physical characteristics and mannerisms to satisfy the standards of membership of another gender (Sheehy).
What’s in a Name: Story of Sebastian Colon
Sebastian Colon is like any other student attending their first day of college. Most people are filled with excitement and terror. The one thing that differentiates Sebastian from the other students is the reasons behind his fear. It is not the dread of having a horrible teacher or no friends in class, it is the fear of which name he will be called when the teacher takes attendance.
Sebastian is a first year graduate student in the School of Social Work at the University of Michigan. He considers himself to be a transgender male and prefers to go by his male name, Sebastian, instead of his legal female name. He is in constant fear that his classmates will discover and use his legal name, which makes him uncomfortable and concerned for his safety. Because of the rampant discrimination against transgender individuals, there is always the threat a person may purposely target him because he is different.
Students have learned his female name in the past through the University directory or by seeing the name that appears when he posts his discussion documents or papers on Ctools (a web-based system used for coursework and collaboration at the University used by the entire campus). This has led to an embarrassing situation in which Sebastian was forced to reveal his sexual identity to avoid confusion within the class between the two names.
Sebastian has made many pleas to CTools administrators, but each time he is told it is not possible to have the male name he prefers appear in public University directories and web based services in place of his legal female name. The University spokeswoman, Kelly Cunningham, says that a student can change their name on CTools by changing their legal name and notifying the Office of the Registrar of the change. Although the University would like to accommodate Sebastian as best they can, they are legally bound to use the name that was on official documents such as his application and financial aid files. However, Sebastian does not want to legally change his name due to familial ties and connections to his Puerto Rican heritage. He believes both names are important to his identity, but if he prefers to be recognized as his chosen name in a public setting, then the University should fulfill his requests (Frank).
In this case, Sebastian had to deal with changing his name on a legal document. There are other cases, however, where an individual desires to change their sex on a public record, such as a birth certificate, to express the identity they feel internally. The question is whether or not a person should be allowed to change a record that documents something that occurred in real time. Modifying or completely changing a legal document is a complex process that takes much commitment, and many states do not agree on whether they should be allowed at all.
Changing the Sex on a Birth Certificate
There is much debate as to whether an individual who changes their physical sex should be able to change the sex on their birth certificate and be reissued a new one. Each state varies on where they stand depending on state jurisdiction and some states do not allow any change at all. Although some will issue an amended birth certificate, noting the change of name and sex, other states will not issue a new birth certificate replacing the original. Even amending a birth certificate is not an easy task. In Alabama, an individual must submit an original letter from the Sex Reassignment Surgery (SRS) surgeon stating completion of the surgery. He or she also needs an “original or certified copy of the court order for [a] name change, as well as an original or certified copy of a court order for change of sex, not just the surgeon's letter”
(Allison). This enters another step into the procedure and is best handled through an attorney, although at extra cost. The individual must then file a "petition to amend a vital record," stating what he or she would like to amend, provide documentation of the reason for petition and name the Center for Health Statistics as a defendant (Allison).
The amending or issuing of a new birth certificate reexamines the issue of a legal marriage between a man and a woman. In the past, SRS surgeons recommended the change of sex on a birth certificate for legal reasons. This subject was challenged by the court in two separate cases involving male-to-female transsexuals who acquired updated birth certificates but were unable to have their subsequent marriages recognized by the courts. In both cases, the state supreme courts rejected the concept of a legal sex change. [Littleton v. Prange (Tex. Civ. App. 1999), (2000) and In the Matter of the Estate of Marshall G. Gardiner, 2002 Kan. LEXIS 117 (Sup. Ct. Kansas 2002)] (Human Rights Campaign).
In the debate between the Transgender Legal Defense and Family Research Council, Executive Director Michael Silverman, argued that transgender and transsexual individuals are one of the most discriminated classes when it comes to hiring. As a result, transgender New Yorkers experience “high rates of unemployment and poverty, and are often unable to access health care and social services” (Silverman). When a person applies for a job, they must present identification to prove eligibility to work. If this identification shows a gender different than what is physically presented, the fear of rejection arises. Silverman states that in “99 out of 100 cases,” that individual does not get the job. This has led to an overwhelming amount of unemployment and poverty within this group of individuals.
With the rising popularity of networking sites, such as MySpace.com and Facebook.com, any person participating in one of these sites is inadvertently allowing any number of people to check these websites for incriminating information, even if it is voluntarily submitted. Future employers may investigate the character of a potential applicant and refuse to hire him or her upon discovering information that does not meet their standards. Websites have the potential to reveal private data that would have previously gone undisclosed, thus narrowing down the pool of applicants before an interview is ever scheduled. Some influencing factors that have affected hiring at different companies include underage drinking, illegal drug use as well as other types of behaviors companies may find inappropriate. With the abundant discrimination against individuals who violate sexual norms, an employer can refuse to hire an individual without giving a reason for the decision.
In the case of Annie*, which appeared earlier in this chapter, the company that had recently hired her decided to run a background check online after she accepted the job offer. Using a typical search engine, her full name alone brought up a website with the title “male-to-female transgender college student”, directing the browser to a picture of her. Although she was not fired, the employers did question her about what they had found. The issue was addressed and they later recommended she remove her middle name from her resume to give her more ambiguity in the future. Annie feels fortunate to work for such an open-minded company and is happily still working for them today.
Not every person in a similar situation has experienced such affable results. It is surprising to think that people such as Annie are not protected under laws such as Title VII, which under the Civil Rights Act of 1964 forbid sex discrimination in the workplace; but federal courts ruled in the past that transgender individuals are not protected under Title VII (Sheehy). In 34 states, employers can legally fire someone based on their sexual orientation. In 44 states, it is legal to do so based on gender identity (Human Rights Campaign). For Annie, a person who identifies herself as a bisexual-transgendered woman, it would have been completely legal for her employers to fire her after viewing her MySpace.com page and seeing information relating to her sex reassignment surgery and her preference for both men and women. Although the above statistics seem harsh, companies are already attempting to further their recognition of gender identity or expression in their non-discrimination policies and these numbers are constantly increasing.
A majority of the Fortune 500 companies seem to be jumping on the bandwagon of improving their non-discrimination policies and catering them to gender identity and sexual orientation. According to HRC WorkNet data, “as of May 15, 2004, a total of 35 Fortune 500 companies included gender identity or expression in their nondiscrimination policies, 11 of which added such protections in 2003 alone. There was an annual increase of 120% over 2001 when only five companies had such protections” (The State of The Workplace). This information is from 2004 and shows a high increase to the number of companies adding gender identity and expression protection to discrimination. As of June 29, 2006, “430 (86 %) of Fortune 500 organizations include sexual orientation in their non-discrimination policies, and 81% include gender identity and/or expression, marking a ten-fold increase from 2001” (The State of the Workplace). Below is a graph indicating the 81% of the Fortune 500 Companies that have written non-discrimination policies. It
also reveals the steady increase of companies that have changed their policies from 1999 to 2006 (The State of the Workplace).
Discrimination outside of the workplace is so extensive that transsexual and transgendered individuals are harassed and assaulted in public places. There have even been cases where individuals were found on the Internet, tracked down and murdered (First National Survey of Transgender Violence). Granted this is an extreme case, it should not be ignored that peoples’ sexual preferences are discovered through the use of technology everyday. When posting information on the Internet, it is a gamble as to who will have access to it. Since the World Wide Web is a public source of stored information, some data is never fully protected. Sometimes the user voluntarily provides this information and other times information is gathered by breach in security, such as accessing passwords or hacking into data systems.
Breach of Privacy in the Workplace through the Internet: Janet’s Interview
Janet* is a 27 year old engineering genius who graduated at the top of her class in college. She held prestigious internships throughout college and was very involved on campus. Although she had only worked in her previous job for two years, she had a lot to offer any company that wished to hire her. She decided to look around for a new job that would better fit her liking and be appreciative of the knowledge and skills she had to offer.
When Janet intervieedw for the job of a project, she was told that she was only 1 of 5 applicants chosen for the interview out of the 23 who applied and went through the first round of phone interviews. She was feeling very anxious and a bit flattered that she was chosen against the odds as the interview began. After she had answered all the questions about the company and the job perfectly, the interviewer began to ask about the campus groups she had been involved in and where she went to college. This is where the problems started.
Janet was a male-to-female transgender individual that had gone through her full transition just a year ago. But throughout the years she attended college, she was a strong activist in the gay, lesbian, transgender community and even served as the president for one of the transgender groups on campus. Being a part of these groups and even holding a position was a major accomplishment to Janet, so she added them to her resume. However, she wrote nothing about her sexual preference and how she changed from a male-to-female because she believed that information should remain private and should not hinder the fact that she is capable for a job. Applicants are not asked to list their sex when filling out an application. During the questioning of her campus involvement, she held great poise and appreciation for all she had done and answered in a noble manner. The interviewer abruptly ended the series of questions and told her they would get back to her within a week or so. When Janet left the office, she felt as though the groups she was involved in had bothered the interviewer, and sure enough, they did.
This involvement probed the interviewer to search further into Janet’s record to see if she was hiding anything. She had a MySpace.com page in college and had pictures of herself at meetings and other events, but she was not fully transitioned to a female yet, so her male characteristics were still identifiable stood out. She deleted her MySpace page all together once she entered the career world, but her pictures stayed archived deep within the Internet for others to find. She was also linked to a campus newspaper where she was featured on the front page as an activist for the transgender community, not quite looking like a woman due to not having had sex reassignment surgery yet.
About three weeks later, Janet got the call from the company she interviewed for telling her they found a better applicant for the job and thanked her for her consideration in their company. Feeling a little downhearted, she continued her job search and a month later found a new job that where she was hired instantly. Ironically, Janet received an anonymous e-mail from an insider within the Human Resources department for the company she had just been denied a job from. He told her the company questioned her sexuality, so they had two men working numerous hours probing into Janet’s hidden secrets that might be found on the Internet. This anonymous e-mail told her what the company had found about her on the Internet and how they found it. He also informed her that he had quit the company because he was a gay man who had not yet come out, but respected the community she had worked so hard for as an activist in college. He was ashamed to work for a company that discriminated against a person simply because of their gender identity and/or sexual orientation.
Janet decided not to file a lawsuit against the company because she was working in a great job, where she has now been working for the past two years. Instead, she uses her story to educate others when applying for jobs. She is now an avid speaker in the transgender community in her current place of residence and no longer dwells on the past, but the good that the past has brought her. She does not believe any person should lie about their sexual orientation, gender identity, sexual preference or any other factor relating to their personal lives when applying for a job, but rather believes that companies need to change their policies to combat discrimination against this community within the job process.
A sample size of 40 college-aged students and young adults, who consider themselves to be either gay, lesbian, bisexual, transgender, transsexual, or expressing their gender identity in any way deviating from the norm, were surveyed and interviewed. These surveys were distributed at the Gay Lesbian Bisexual and Transgender (GLBT) Resource Center at the University of Colorado – Boulder, and were also personally administered either via e-mail or telephone. The research was gathered from this population because the authors were interested in the opinions of those to whom these issued pertained. Seven employers who did not necessarily identify with any of the above groups were also interviewed to find out their hiring policies toward gay, lesbian, bisexual and transgender individuals and to learn about the use of information found via the Internet affected their hiring decisions.
The surveys dealt with topics concerning how much the respondents knew about the information that was being researched on them, and if they knew what effect this had during the job process. Out of the 40 respondents, almost all (95%) had an account on one type of social networking site, such as Facebook.com or MySpace.com and only 62% had private profiles. Slightly over half of the respondents knew that employers were using these public networking sites to investigate potential applicants, but only 33% believed it was ethical.
In the sample we surveyed and interviewed, an outstanding 72% felt they had been discriminated in the workplace for issues concerning their sexual orientation, gender identity, gender expression, or transgender nature. This discrimination was noticed within hiring, promoting adverse impact or disparate treatment in the workplace. Every respondent believes anything relating to his or her sexuality should not be taken into account when being considered for a job, especially if the information is retrieved from the Internet.
Of the seven employers we interviewed, none admitted to having a policy where they would not hire an individual based on sexual orientation or gender identity. Yet in the survey, 75% admitted that finding out information relating to one’s sexuality may have some impact on whether they offered that individual the job. Many employers stated they keep an open mind and look at an applicant based on their qualifications, not on the basis of their sexuality.
In the past, it has appeared that individuals who deviate from society’s sexual norm have largely been discriminated against in the workplace. Because of this type of discrimination, these classes of people have been associated with high rates of unemployment and poverty, and are often unable to access health care and social services. Much of this information is discovered via the Internet. Social networking sites, search engines, directories or data bases have the potential to divulge personal information about an individual that they do not necessarily wish to share with the world. Because of the freedom and accessibility of the Internet, many employers are able to research a candidate before even meeting them face to face, and disregard an applicant based on their sexuality. During the interview process, questions pertaining to gender, sexual orientation, etc., are not allowed because they are protected by the Equal Employment Opportunity Commission (EEOC). However, with access to this type of information before the interview, the EEOC cannot regulate how an employer makes their decisions based on this.
Based on interviews, case studies, and surveys, it is obvious that this type of discrimination exists. Many believe it is unfair to judge a person based on their private preferences, and not on their qualifications but potential applicants have very little privacy in a world dominated by technology. Until every company adopts a policy protecting against the discrimination of individuals based on their gender identity or sexual orientation, this problem will continue to survive, along with the Internet as its catalyst.
Allison, Becky. Changing Birth Certificate. 5 Mar. 2007 http://www. drbecky.com/ birthcert.html.
Anonymous, Annie. Personal Interview. 8 Feb. 2007.
Anonymous, Janet. Personal Interview. 15 Mar. 2007.
Frank, Laura. “What’s in a Name? A Lot Transgender Student says.” Michigan Daily 6 Dec. 2005. 5 Mar. 2007.
"First National Survey of Transgender Violence." General Public Advocacy Coalition. 13 Apr. 1997. 21 Feb. 2007.
Human Rights Campaign: Workplace Discrimination. Human Rights Campaign. 21 Feb. 2007 http://www.hrc.org/Template.cfm? Section=Workplace_Discrimination.
Sheehy, Catherine. Transgender Issues In The Workplace: A Tool for Managers. 2004. 21 Feb. 2007 http://nmmstream.net/hrc/ downloads/publications/tgtool.pdf.
Silverman, Michael. Interview. The New York Daily News. 5 Mar. 2007 http://www.nydailynews.com/news/ideas_opinions/story/470466p-395981c.html.
"The State of the Workplace 2005-2006." 2006. Human Rights Campaign Foundation. 21 Mar. 2007 http://www.hrc.org/Template.cfm? Section=Get_Informed2&CONTENTID=32936&TEMPLATE
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