On Monday, Saks announced that it would withdraw its claim to have a legal right to discriminate against trans employees. The company had asserted this right in a recent motion to dismiss a discrimination case brought by a former employee. This employee, a trans woman named Leyth O. Jamal, claimed she faced discrimination and harassment at Saks due to her trans status. In response, Saks declared that it didn’t matter whether the allegations were true, because trans employees aren’t protected from workplace discrimination under federal law.
Saks’ willingness to reconsider its hardline claim against trans people is encouraging, although the company did not immediately see the error of its ways. Still, Saks’ conduct has been so disturbing throughout the case that LGBTQ customers may want to think twice before shopping at the store. In Saks’ legal filings, the company repeatedly referred to Jamal—a self-identified woman—as he. When quoting Jamal’s own filings, Saks added a “[sic]” after every reference to her as female, as if to assert that her identification as a woman was factually incorrect. Admittedly, it was Saks’ attorneys, not its CEO, who drafted these briefs. But even after they were made public, Saks refused to apologize for this nasty misgendering. (In fact, the company has yet to apologize for it.)
It gets worse. Courts across the country are split on the question of whether Title VII of the Civil Rights Act of 1964 forbids anti-trans discrimination. But the trend seems to point toward an acknowledgement that the law’s prohibition of discrimination “on the basis of sex” includes gender identity and trans status. Apparently, Saks was willing—eager, actually—to reverse this trend and win a court decision establishing that Title VII does not protect trans employees across America. That is not what an LGBTQ ally does.
In the end, then, Saks’ decision to withdraw its claim that it had a legal right to discriminate against Jamal probably lies in the power of the free market. Boycotts and anti-Saks campaigns have been springing up all month, and Saks likely made the educated guess that it couldn’t lose its LGBTQ customers and survive another quarter. Don’t credit Saks with discovering the beauty of trans tolerance overnight. Thank whichever financial analyst told Saks it was enraging customers it couldn’t afford to lose.
Want to hang out with Outward? If you’ll be in or near New York City on Feb. 3, join June Thomas, J. Bryan Lowder, and Mark Joseph Stern—and special guest Lea DeLaria of Orange Is the New Black fame!—for a queer kiki at the first ever Outward LIVE show, hosted by City Winery. Details and tickets can be found here.