A Big LGBT Rights Question: Does Title VII Cover Trans Rights?

While marriage equality dominates a lot of talk about LGBT rights, the question of discrimination protections for the trans community was brought into sharp focus this month after a federal judge ruled that, contrary to the Obama administration’s assertions, federal sex discrimination protections do not cover trans people.

Under Title VII of the 1964 Civil Rights Act, it is illegal to discriminate against someone because of their sex. As trans rights emerged on the political scene, it posed an interesting question: does Title VII cover trans people and make it unlawful to discriminate against them on grounds of their gender identity and gender expression?

The Equal Employment Opportunity Commission (EEOC) ruled in the 2012 case Macy v. Holder(.pdf) that this indeed is the case: anti-trans discrimination amounts to sex discrimination based on people effectively being punished for not adhering to sex-stereotypes and expectations. By virtue of this, the EEOC therefore vowed to take up cases of anti-trans discrimination and to fight them in the courts, and in September of this year it duly filed two such suits. They are currently making their way through the court process, so we wait to see how they turn out.

A significant wrinkle to those plans occurred late last month though, and has just now come to light, and it involves a lawsuit that has just been dismissed by a federal judge in Texas.

A truck-driving instructor known as Eure to the court who was birth-assigned female but presents with a male identity (she does however refer to herself in court documents as female and so to respect that and for clarity, all pronouns for Eure will be female) sued employer Sage after a National Project Director arrived at the San Antonio campus to give specialized training and allegedly made a series of comments about Eure’s gender identity. Those comments are alleged to include the National Project Director asking the plaintiff’s supervisor “What is that and who hired that?” and “Please don’t tell me that is a Sage instructor,” adding that Sage does not hire “cross genders.” The National Project Director also allegedly told the supervisor, “We will deal with you seriously for hiring that.” This is in addition to general hostilities Eure says she had to endure from other members of staff.

If Title VII does apply here, this seems an open and shut case of sex discrimination, however federal court judge David Alan Ezra took issue with the notion that Title VII does in fact go beyond sex-stereotyping to ban anti-trans discrimination because the two are not strictly speaking the same thing.

Ezra decided that:

In some cases, the plaintiffs bringing successful sex stereotyping claims are transgender people, arguing that the discrimination that they have suffered is because their coworkers perceived their behavior or appearance as not “masculine or feminine enough.” However, courts have been reluctant to extend the sex stereotyping theory to cover circumstances where the plaintiff is discriminated against because the plaintiff’s status as a transgender man or woman, without any additional evidence related to gender stereotype non-conformity.

[...]

All of the testimony that Eure has presented related to Campanian’s animus couches Campanian’s alleged discrimination in terms specifically related to Eure’s status as a transgender person, not in terms related to … conformance with gender stereotypes.

To be clear, Judge Ezra isn’t saying that there isn’t evidence Eure was discriminated against. What the judge is concerned by and ultimately why he dismissed this case, is that he believes there is a lack of precedent at the 5th Circuit and at the Supreme Court level to give confidence to the notion that Title VII covers the kind of discrimination that Eure faced. Other trial judges have given greater scope to their interpretation of Title VII, but it’s by no means a settled legal matter and obviously for the EEOC’s two pending cases, this federal ruling brings the issue into stark focus.

It appears that the Supreme Court will ultimately have to settle this matter, unless Congress acts first and creates an explicit law that bans anti-trans discrimination.

As such, this clearly illustrates why we need a federal Employment Non-Discrimination Act that gives trans people workplace protections. Unfortunately, a Republican-dominated US House panel this week voted down party lines 7-3 to block ENDA from being added to a defense bill for consideration on the House floor.

While adding amendments should only be done when they are germane to the bill, Republicans have set a precedent for adding any number of anti-LGBT pieces of legislation to past defense bills, and this was a last ditch effort after House Speaker John Boehner blocked ENDA from coming to the floor despite the bill clearing the Senate and having significant support among House Democrats and moderate Republicans.

While we wait for clarity on this issue, it is advised that people who have faced anti-trans discrimination in the work place avail themselves of state laws and, if it is applicable, also contact the EEOC which is still operating as though Title VII does cover anti-trans discrimination.

Photo credit: Thinkstock.

44 comments

Margaret Goodman
Margaret Gabout a year ago

The United States needs an Equal Rights Amendment that covers not only discrimination against women but also discrimination against the LGBTQ community.

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Janet B.
Janet B2 years ago

Thanks

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sandra vito
Sandra Vito2 years ago

gracias

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John B.
John B2 years ago

Thanks Steve for the article. I was under the impression that Title VII covered transgender individuals. You state in the article that SCOTUS "will ultimately have to settle this matter (1), unless Congress acts first and creates an explicit law that bans anti-trans discrimination."(2)
1 - Does that mean EEOC is planning an appeal? I hope so.
2 - Does anyone really think the GOP controlled Congress will pass a bill regarding the transgender issue? I sure don't. This will have to be decided by the courts

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Danuta Watola
Danuta W2 years ago

Thank you for sharing

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Graham Parker
Graham P2 years ago

Thanks Care 2 members who sent me green stars for my sarcastic post about invigorating comments which was written after seeing 9 posts of ty,Thank You and a ?. Glad to see afterwards some great comments and heartfelt posts to which I've sent Green Stars thanks.

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ERIKA SOMLAI
ERIKA S2 years ago

noted

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Edith B.
Edith B2 years ago

Stars sent to Kathryn R and Lisa L, they eloquently said what I would like to say. Title VII says it is illegal to discriminate against someone because of their sex. It seems obvious to me that transgenders should be protected by this.

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Anne Moran
Anne M2 years ago

If it doesn't,, it should....

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John chapman
John chapman2 years ago

These people have my heartfelt sympathy.

Of all the GLBT community, they have the largest cross to bear.

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