‘Banning The Box’ Is A Big Win For LGBT Justice

President Obama signing an executive order protecting LGBT employees of federal contractors from discrimination in 2014. CREDIT: AP PHOTO/JACQUELYN MARTIN
President Obama signing an executive order protecting LGBT employees of federal contractors from discrimination in 2014. CREDIT: AP PHOTO/JACQUELYN MARTIN

In response to ongoing pressure from advocates and formerly incarcerated activists, President Obama has ordered federal agencies to delay asking about a job applicant’s criminal history until later in their hiring process. To date, 19 states, approximately 100 municipalities, and several well-known private companies, including Walmart, Target, and notoriously conservative Koch Industries have all adopted similar “ban the box” measures, signaling a growing recognition that screening job applicants based on their criminal record can be an insurmountable barrier to employment and that unemployment has been cited as the strongest determinant of recidivism.

Although this move is just one step in addressing the barriers to opportunity faced by as many as 100 million people with criminal records in the United States, it is an important part of a broader movement towards promoting fair hiring practices — a movement that is especially vital to the survival of LGBT communities, particularly transgender and gender non-conforming communities and communities of color.

Because of widespread discrimination, harassment, and mistreatment in nearly every aspect of their lives, including by employers, transgender communities experience disproportionately high levels of unemployment and poverty, as do lesbian, gay, and bisexual communities.

According to the largest national study on transgender people in the country, transgender communities experience double the rates of unemployment as compared to the general population, with rates for people of color up to four times as high. This employment instability results in high rates of dire poverty, with transgender people being four times more likely to earn $10,000 per year than the general population. Even for those who find a job, 90 percent report experiencing harassment, discrimination or mistreatment in the workplace.


As a result of this widespread employment discrimination and economic insecurity, a significant number of transgender people report having to rely on criminalized survival economies, such as sex work and drug selling, in order to get their basic needs met. Even though most transgender people report not engaging in criminalized survival work, many still experience police profiling on the assumption that they are engaged in criminal activity, in a trend known as “walking while trans.

As a result of these experiences, as well as the general criminalization of poverty and homelessness, transgender communities experience high rates of police harassment and incarceration. Approximately 16 percent of transgender people have been in jail or prison at some point in their lives, where they face significant violence and harassment, as compared to 2.7 percent of the general population, making them more susceptible to criminal history discrimination. National reports such as Roadmap for Change highlight these needs, and outline the significant work that must still be done to end systemic criminalization, policing, and incarceration of LGBT communities.

President Obama’s announcement is an important step, particularly in the context of the Administration’s other ongoing criminal justice reform initiatives. However, it is just one step: this action applies only to federal agencies, which employ approximately 2.1 million workers, but not the federal contractors or private companies that employ millions more.

This action also does not prohibit federal agencies from checking a job candidate’s criminal history entirely. It instead delays their ability to do so until a later point in the hiring process that the Administration has yet to specify. Additionally, LGBT workers can still be fired in most states because of their sexual orientation, gender identity or gender expression.

These gaps in protection highlight an ongoing need for a multi-pronged approach to legislation that ends the intersecting forms of criminal and LGBT-based discrimination that keep LGBT people unemployed and in poverty. This includes legislation like The Equality Act, which would ensure LGBT communities are protected nationally from employment, housing, public accommodations and other forms of discrimination as well as the Fair Chance Act, which would extend criminal history discrimination protections to federal contractors — and hopefully, someday, expand to employers nation-wide.