Texas’ obstruction of the Pregnant Workers Fairness Act is a stark reminder of the tangled web woven by the state’s pro-business stance and its vehemently anti-trans agenda.
A federal judge in Texas ruled last month that the federal Pregnant Workers Fairness Act, which was passed largely by proxy votes during the pandemic, cannot be enforced in the state. Texas’ successful blocking of the PWFA is an obvious blow to all pregnant workers throughout the state—but it’s especially devastating to pregnant transgender and other gender-expansive people.
Under the leadership of GOP leaders like Gov. Greg Abbott and Attorney General Ken Paxton, the state has gained a reputation for being a foe to human rights and freedoms, particularly when it comes to transgender people. At their urging, the legislature has passed laws that include banning transgender athletes from competing in sports that correspond with their gender identity and outlawing gender-affirming care for trans youth.
While the federal passage of the PWFA was a win for many, it was particularly momentous for low-income people, women of color, and gender minorities—groups that lack adequate access to affordable and inclusive healthcare. The PWFA removes the requirement of onerous pregnancy documentation, provides protection against being forced onto unpaid leave, and requires accommodations and leave for pregnancy-related care including childbirth and abortion.
By blocking the PWFA, Texas employers can continue to require proof of the need for pregnancy-related workplace accommodations, as well as evidence that the employer has given similar accommodations to employees previously. This move leaves pregnant people in the position of not receiving the accommodations they need, and possibly being pushed out of their jobs or forced into unpaid leave, which has catastrophic implications for low-income families with new additions on the way.
PWFA is particularly important for transgender and gender-expansive people since they are more likely to face economic hardship, lack access to affordable and inclusive healthcare, and experience discrimination and harassment in the workplace. Even if they can access prenatal or abortion healthcare, common problems such as the high cost of healthcare and transphobia can make frequent interactions with healthcare providers in order to obtain documentation difficult. Accessing reproductive healthcare can be especially fraught for trans and gender expansive patients, who report being denied insurance coverage for reproductive health services such as pap smears and report higher rates of self-managed abortions. In addition, workplace accommodations for time off for conditions like postpartum depression, guaranteed under PWFA, may be particularly useful for transgender individuals who experience higher baseline rates of depression and suicide.
Pregnancy can also exacerbate gender discrimination among trans people. In 2020, a transgender man in New Jersey sued Amazon for pregnancy and gender discrimination after he disclosed his pregnancy to his employer and was then demoted to a position that required heavy lifting and repeatedly placed on leave. The employer also shared the workers’ pregnancy status and outed him as trans to his co-worker, who began harassing him for using the men’s bathroom. The case illustrates an important gap in protections for trans people in the workplace whose pregnancy status can trigger other forms of gender discrimination and transphobic harassment.
The PWFA’s gender-inclusive language—in notable contrast to the Pregnancy Discrimination Act of 1978—marks a crucial step towards ensuring equitable treatment and access to accommodations. Without adequate protections, Texas employers could resist making accommodations for people such as pregnant trans men by arguing that it does not apply to them on the account that the Pregnancy Discrimination Act refers specifically to “women.”
Texas has already made clear that trans and gender-diverse employees will not be protected in the workplace, when a judge ruled that employers need not protect trans workers from discrimination based on dress, pronoun and bathroom usage. This further obstruction of the PWFA serves as a stark reminder of the tangled web woven by the state’s pro-business stance and its vehemently anti-trans agenda.
As we navigate the treacherous terrain of a post-Dobbs landscape, the plight of transgender pregnant individuals in Texas grows increasingly dire, underscoring the urgent need for comprehensive protections and support.
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