A recent ruling by a federal regulatory commission defines employment discrimination against transgender employees as sex discrimination under Title VII. This recognition that transgender employees can gain the protection of Title VII’s prohibition against sex discrimination will have important impacts on current and future employment discrimination cases involving transgender individuals across the country.
The Equal Opportunity Employment Commission (EEOC) is in charge of ensuring that no employee (or potential employee) is discriminated against because of religion, race, country of origin, or sex. The EEOC enforces Title VII, a part of the Civil Rights Act of 1964, which states that “it shall be an unlawful employment practice for an employer . . . to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin. . . .” For decades since this law passed in 1964, employees, employers, and state and federal courts have been struggling with what exactly is covered under the term “sex.” The sticking point has often been confusion about what constitutes a person’s “sex” and how sexual orientation, gender identity, and transgender status relate to a person’s “sex.”
The question of whether transgender status fits within the “sex” category had not been previously addressed by the EEOC and discrimination lawsuits filed by transgender employees have been an uphill battle for those plaintiffs. However, the recent ruling by the EEOC found that discrimination against transgender employees is sexual in nature and thereby illegal under Title VII’s prohibition against discrimination on the basis of sex.
This landmark decision was the result of a discrimination case filed on behalf of Mia Macy, a former police detective in Phoenix. After relocating to the San Francisco area, Macy applied for a Ballistics Forensic Technician contractor job with the ATF (Bureau of Alcohol, Tobacco, Firearms and Explosives). Macy was initially told that she qualified for the job, having applied for the position while she was considered a man, before to her transition to being a female. After she informed ATF that she was in the process of transitioning from male to female, she was told that the position had been eliminated due to budgetary restrictions. However, ATF had hired another person for the position instead.
This spurred Macy to file a discrimination complaint with ATF. ATF responded that claims of discrimination on the basis of gender identity stereotyping or transgender status did not fall under Title VII, which prohibits discrimination on the basis of sex. The agency later agreed to hear the case under Title VII, but only on the basis of sex discrimination against Macy because she was a female, and not on the basis of gender identity, sex stereotyping, or her transgender status.
Macy took the matter to the EEOC. The commission debated the issue for some time before reaching a unanimous decision that transgender people were indeed protected under Title VII. The commission concluded that claims for gender identity, sex stereotyping, and transgender status are all different ways of stating the same thing: discrimination on the basis of a person’s sex. The EEOC based its decision on the Supreme Court’s ruling in Pricewaterhouse v. Hopkins which stated that gender stereotyping was a type of “sex” discrimination under Title VII.
Several high-profile federal court cases have also provided protections against transgender discrimination in the workplace and 16 states have laws on their books protecting the employment rights of transgender individuals. However, by taking an official stance on the issue, the EEOC has provided a uniform interpretation of Title VII that court across the country can look to for guidance. The EEOC’s decision is a tremendous victory for transgender employees and allows them to benefit from Title VII’s prohibition on workplace discrimination.
The EEOC’s decision to define transgender discrimination as a type of sex discrimination and these changes in state law will offer a new level of protection against sexual discrimination in the workplace for transgender individuals.
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