Amid Strides In LGBTQ Worker Rights, Fashion’s Culture Still Too Gendered

Apparel retail veteran Rob Smith says he’s been on a mission in the last few years to degender fashion. 

His widely publicized endeavors — the fashion brand The Phluid Project; a company training program billed “Get Phluid;” and, more recently, his non-profit The Phluid Phoundation — are meant to get at something laws can’t always touch: the norms in reality of whether LGBTQ people are truly embraced and valued within an enterprise, and not merely included as tokens of representation.

“This idea of clothing being so binary, and society telling us, basically, how we should act and present ourselves — it’s a social construct that is outdated,” said Smith, who has previously had roles at major retail brands including Macy’s and Victoria’s Secret.  

“And I think it’s time to address it through fashion and clothing — to allow people to be who they want to be, allow them to express themselves, regardless of their gender identity or sexual orientation,” he said. “Binary constructs hurt all of us.” 

From a heteronormative lens, conventional clothing categories at department stores might not seem the most obvious front for social justice battles. But cultural expectations around gendered attire, especially in the workplace, still carry enormous weight in the perception and acceptance of people with alternative gender-expressions and gender non-conforming presentation, Smith said. 

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Indeed, many workplace dress codes and expectations of professional conduct, even if kept off paper, are often based on traditional gender norms around clothing and expression. The connection between attire and civil rights for LGBTQ workers is also well-trodden ground both in a number of local regulations protecting employees, including in New York City, and, as of last summer, at the U.S. Supreme Court. 

The high court’s landmark ruling last June in the Bostock cases had essentially held that federal employment protections under Title VII of the Civil Rights Act also apply to LGBTQ workers. That ruling effectively meant federal law can bar workplace policies, including dress codes, that discriminate against gay or transgender staff. It’s a message President Joe Biden’s White House and the federal agency Equal Employment Opportunity Commission have also sought since then to codify in official regulatory policies. 

“I think it was a real marker of how far we have come, which is very far, in terms of broad public support for workplace equality for LGBTQ people,” said Shannon Minter, legal director for the National Center for Lesbian Rights.

“And the impact of that decision was huge — as a result of that decision, it’s crystal clear that LGBTQ employees across the country are protected from workplace discrimination,” he said. 

The proliferation of anti-trans bills at the state and local levels around the U.S. meanwhile have sought to target students, particularly to impede transgender students from playing sports on teams that align with their gender identity. 

While the Bostock cases specifically addressed employees and the workplace, courts could nonetheless still use the Supreme Court’s reasoning in those cases to help invalidate laws discriminating against LGBTQ students and people in other contexts, Minter said. 

“We’re dealing right now with state legislatures passing some very hostile laws,” he said. “But, countering that, are these very strong, and now, thanks to Bostock, very clear and very well established federal protections.” 

But that doesn’t mean workplaces — even in the fashion industry where companies tout their LGBTQ designers and creatives and Pride month merchandise and special collections — have always caught up. 

While regulations and courtroom disputes have sought to address whether it’s legal for companies to institute strict gendered dress codes and conduct expectations for employees, Smith of the Phluid Project says he has tried to address those questions from a cultural perspective. 

The “Get Phluid” training platform provides training for companies on inclusive language, and the wording of workplace policies, including those on dress code, he said. The program currently has some 30 participants, and just about half of those include fashion industry companies, he said. 

“I think it’s time for all of us to work harder to break apart these massive infrastructures that are built on ‘male’ and ‘female,’ whether it’s a buying team, a design team, the way the floor is merchandised, and start to create space for all people,” said Smith, also a former board chair of the Hetrick-Martin Institute, which provides services targeted at LGBTQ youth. 

The fashion industry’s resistance to more-expansive acceptance of LGBTQ workers was also documented through the course of a United Nations initiative in 2017 addressing discriminatory corporate practices.

The standards articulated by the group state that companies should root out discrimination in their hiring and employment practices, and “provide a positive, affirmative environment so that [LGBTQ+] employees can work with dignity and without stigma.”  

Fabrice Houdart, managing director of Global Initiatives at Out Leadership, who had previously worked at the United Nations Human Rights Office, noted the reluctance of fashion companies to sign on to those U.N. standards of conduct that he had helped author. Besides some notable exceptions including LVMH, Kering, H&M and Zara, many fashion companies did not join as signatories, he said. 

“You can see that this is a rather conservative industry globally,” Houdart said of the fashion industry at large. 

“The reason why we developed [these standards of conduct] when I was at the U.N., was because a lot of companies understand that they have responsibilities when it comes to [issues like] child labor, or human trafficking, but they didn’t really understand LGBTQ rights were actually also a question of human rights as valid as those other issues,” he said. 

“They felt that LGBTQ issues are different — that it was about being nice, or it was a question of culture,” he added. “They didn’t really see it as a human rights issue. And so the U.N. felt the need to spell out the human rights responsibility of the private sector.” 

The fashion industry’s own recent efforts at introspection affirm Houdart’s observations. The CFDA and PVH Corp. said in their February joint report on “The State of Diversity, Equity, and Inclusion in Fashion“ that some 18 percent of LGBTQ employees said they wouldn’t recommend working in the fashion industry, and that many considered it discriminatory against them.  

When asked what initiatives the trade group was pursuing to address inequities affecting LGBTQ employees in fashion, the CFDA’s head pointed to the group’s DEI commitment, including the production of such reports. 

“There is the perception that the fashion industry is very inclusive of LGBTQ+ team members without bias,” CFDA chief executive officer Steven Kolb said in a statement. “While it may be better than other industries, there are still challenges.” 

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