The U.S. Office of Special Counsel (“OSC”) has issued a decision after finding that the Army had engaged in “frequent, pervasive and humiliating” gender identity discrimination.
Tamara Lusardi was a civilian Army software specialist when she transitioned from male to female. Ms. Lusardi had previously served overseas for the Army. During the time of her gender transition, the Army interfered inappropriately with her choice of bathroom, referred to her with male pronouns, refused to call her by her new name and stopped giving her work. This conduct occurred after she had legally changed her name, her driver’s license, her security clearance, and had begun dressing as a woman. Ms. Lusardi complained that she was unable to sleep after being frozen out of work and being told to stop speaking to co-workers about her transition. Ms. Lusardi was required to use a single-user, gender-neutral bathroom because of concern that other employees were not uncomfortable around her.
The OSC ruled that coworker preferences alone will not “justify discriminatory working conditions.” Such preferences could work to reinforce the very stereotypes and biases that anti-discrimination laws were enacted to prevent. The bathroom limitation isolated Ms. Lusardi from other female employees. President Obama signed an executive order banning discrimination against lesbian, gay, bisexual and transgender employees who work for the federal government and federal contractors in July 2014. The Army has agreed to provide training with a focus on lesbian, gay, bisexual, and transgender issues to prevent this situation in the future. Ms. Lusardi is now also allowed to use the women’s bathroom and has been receiving more work.