Keeping Up with Cait: The Rapid Advancement of Transgender Rights under Title VII

The high-profile gender transition of Caitlyn Jenner has brought unprecedented publicity to issues affecting the transgender/transsexual community. From a legal standpoint, the federal Equal Employment Opportunity Commission has made enforcement of LGBT rights under Title VII a top priority, and for many years the EEOC has recognized that Title VII prohibits discrimination against transgender employees. Slowly but surely, the federal circuit courts are also starting to recognize this principle.

The language of Title VII does not explicitly refer to transgender discrimination. Rather, it broadly prohibits (among other things) discrimination “because of … sex.” 42 U.S.C. § 2000e-2(a)(1). It’s now well-recognized that discrimination because of sex includes discrimination based on gender-specific stereotypes, including stereotypical “gender-normative” behavior:

[W]e are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group, for in forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.

Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989).

Smith v. City of Salem is one of the earliest cases directly related to transgender discrimination. 378 F.3d 566 (6th Cir. 2004). Smith, a firefighter for the City of Salem, Ohio, was born biologically male but intended to transition to female after being diagnosed with Gender Identity Disorder. Id. at 568. After Smith informed his supervisor of his intention to transition, City officials devised a plan to terminate Smith based on Smith’s “transsexualism and its manifestations.” Id. The Sixth Circuit held that Smith was entitled to protection under Title VII from “sex stereotyping and gender discrimination” that is based on “his failure to conform to sex stereotypes concerning how a man should look and behave.” Id. at 572. The court noted that several pre-Price Waterhouse cases refusing to enforce Title VII against transgender discrimination were no longer good law. Id. at 572-75.

The Eleventh Circuit’s decision in Glenn v. Brumby, a section 1983 case, is significant because of its broad formulation of legal protections for transgender individuals. 663 F.3d 1312 (11th Cir. 2011). In that case, the court reiterated Price Waterhouse’s recognition that “discrimination on the basis of gender stereotype is sex-based discrimination.” Glenn, 663 F.3d at 1316 (citing Price Waterhouse, 490 U.S. at 250-51, 258-61, 272-73).The court then noted that non-conformity to gender stereotypes is inherent in transgender identity: “[a] person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes.” Id. at 1316. As a result, “discrimination against a transgender individual because of her gender-noncomformity is sex discrimination.”

Shortly after that, in 2012, the EEOC issued a decision holding that a “complaint of discrimination based on gender identity, change of sex, and/or transgender status is cognizable under Title VII.” Macy v. Holder, Appeal No. 0120120821, Agency No. ATF-2011-00751 (EEOC April 20, 2012).

Despite these clear pronunciations, many employers who have discriminated against transgender employees based on the employee’s failure to conform to gender stereotypes still argue that the law does not afford protection to these individuals. For example, the U.S. District Court for the Western District of Oklahoma rejected such an argument from Southeastern Oklahoma State University earlier this month in United States v. Southeastern Oklahoma State University. Case No. CIV-15-324-C (W.D. Okla. July 10, 2015). In that decision, the court firmly held that an employer violates Title VII when it takes action against an employee “based upon their dislike of [the employee’s] presented gender.” Id.

Caitlyn Jenner’s upcoming reality show “I am Cait” will surely bring even more publicity to trans community. Hopefully, one beneficial side effect of this media phenomenon will be increased recognition of the rights of trans individuals in the workplace.