EEOC Rules That Discrimination Against Transgender Persons Is Unlawful Gender Discrimination

The EEOC has rendered a landmark victory for transgender persons. Henceforth discrimination against transgender persons will be considered to be a form of gender discrimination, which is already prohibited by the Equal Employment Opportunity Act.

Chris Geidner of Metro Weekly has posted an interview with the woman, Mia Macy, entitled A Woman's Fight, A Couple's Resilience. Macy told the reporter that she was offered a job with the ATF as a man, but the agency changed its mind when she showed up as a woman.

''I was in the military and then I became a cop. One of the last jobs I had with the Phoenix Police Department, I worked on an ATF [team], and it's a gun squad, and I was certified by the ATF. They came in and they certified us for these pieces of equipment, and I worked on the gun cases,'' she tells Metro Weekly. ''I got a job offer to come out to San Francisco … and work for the ATF in their lab, and went through the process and went through the background and completed that.'' ... ''We moved out to the [San Francisco] Bay [where the job was to be located], and within three days after my background was completed and they alerted the lab that Mia would be coming to work, I was notified that the position was no longer available — even though I was certified and trained for the job."

Macy states that the ATF in fact gave the job to another person (a man). ''At that point, I needed some help. I didn't think something was right.'' She turned to the Transgender Law Center for help, and the Center represented her before the EEOC.

The Center's report of its victory is entitled Groundbreaking! Federal Agency Rules Transgender Employees  Protected by Sex Discrimination Law. The Center states:

In a landmark ruling, the Equal Employment Opportunity Commission (EEOC) has announced that Title VII, the federal sex discrimination law, protects employees who are discriminated against because they are transgender. In its unprecedented decision, the EEOC concluded that “intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination ‘based on … sex’ and such discrimination … violates Title VII.” The EEOC is the federal agency that interprets and enforces federal employment discrimination law, and today’s decision marks the first time it has offered clear guidance on this issue.

The Center explains that this ruling will have a broad impact not only on federal agencies but on all employers, and will influence the courts in their interpretation of the law:

The decision today follows a clear trend by federal courts in recent years holding that transgender people are protected by Title VII’s prohibition against sex discrimination. But it has even broader implications than a court decision, because the EEOC is the agency charged with interpreting and enforcing federal discrimination laws throughout the nation. The EEOC’s decision will impact every employer, public and private, throughout the nation. The decision is entitled to significant deference by the courts, and will be binding on all federal agencies.

The Washington Blade has posted the EEOC's decision here. The key portions of the ruling are the following paragraphs:

That Title VII's prohibition on sex discrimination proscribes gender discrimination, and not just discrimination on the basis of biological sex, is important. If Title VII proscribed only discrimination on the basis of biological sex, the only prohibited gender-based disparate treatment would be when an employer prefers a man over a woman, or vice versa. But the statute's protections sweep far broader than that, in part because the term "gender" encompasses not only a person's biological sex but also the cultural and social aspects associated with masculinity and femininity. (Pages 6-7)

When an employer discriminates against someone because the person is transgender the employer has engaged in disparate treatment "related to the sex of the victim. See Schwenk, 204 F.3d at 1202. This is true regardless of whether an employer discriminates against an employee because the individual has expressed his or gender in a non-stereotypical fashion, because the employer is uncomfortable with the fact that the person has transitioned or is in the process of transitioning from one gender to another, or because the employer simply does not like that the person is identifying as a transgender person. In teach of these circumstances, the employer is making a gender-based evaluation, thus violating the Supreme Court's admonition that "an employer may not take gender into account in making an employment decision." Price Waterhouse, 490 U.S. at 244. (Pages 7-8)

The EEOC cited a number of decisions by federal district courts and courts of appeals consistent with its ruling.

In the latter part of its opinion the EEOC offered an interesting parallel to discrimination based on religion:

[G]ender is no different from religion. Assume that an employee considers herself Christian and identifies as such. But assume that an employer finds out that the employee's parents are Muslim, believes that the employee should therefore be Muslim, and terminates the employee on that basis. No one would doubt that such an employer discriminated on the basis of religion. (Page 13)

The EEOC did not issue a final decision in this case. It simply ruled that Ms. Macy may file a claim for sex discrimination. The agency concluded:

Thus, we conclude that intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination "based on ... sex," and such discrimination therefore violates Title VII. (Page 14)

In a footnote on page 14 the EEOC noted that it was overturning the position that the agency had previous taken in decisions rendered in 1984, 1994, and 1996.

The Proactive Employer reports that it will host a radio show on Friday about the likely impact of the EEOC's decision on employers.

The EEOC's decision will also have an important political impact on Congress. For some time there has been broad support in Congress for enacting ENDA (the Employment Non-Discrimination Act). This statute would prohibit employment discrimination on the basis of sexual orientation and gender identity. What has held up passage of the law until now was the fact that  many lawmakers objected to the inclusion of protection for transgender persons, but the supporters of the law decided not to strip "gender identity" from the bill's protections. This is the Gay Rights Movement's version of "no soldier left behind." Now that the EEOC has ruled that employment discrimination against transgender persons is already covered by the anti-discrimination law, there is no practical reason for legislators to oppose the amendment of the statute to expressly include them.

Wilson Huhn teaches Constitutional Law at The University of Akron School of Law.