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February 19, 2013

3 Developments with Transgender Rights that May Affect Employment Discrimination Cases

In a Sound Advice podcast from the _ Section of Litigation, Nancy Marcus of Berkman, Gordon, Murray and Devon in Cleveland discussed three developments regarding transgender rights that may affect employment discrimination cases around the country. 

Discrimination against transgender employees is a critical problem, Marcus said. In a recent survey by the National Gay and Lesbian Task Force of more than 6,000 transgender persons, 90 percent of those surveyed reported facing discrimination at work. More than 25 percent said they had been fired because of their gender identity. 

“These sobering statistics should be a call to action at the very least for lawyers across this country to arm themselves with information to give the best possible legal representation to transgender individuals who come through your doors seeking help in the face of employment discrimination,” Marcus said. 

The first recent development in transgender rights is the declassification of gender dysphoria, or being transgender, as a mental disorder. “This development is welcome news for transgender people in many respects, removing much of the stigma from being transgender in the same way that no longer labeling homosexuality as a disorder removed a stigma from being gay or bisexual,” Marcus said. “But for purposes of pursuing a disability discrimination claim, it will make such claims harder to win. Thus it is more important than ever for attorneys representing transgender clients to be well versed in employment discrimination protections under Title VII [of the Civil Rights Act of 1964] and state and local laws.” 

The second critical development in transgender rights is “a true watershed moment in LGBT history,” Marcus said. The Equal Employment Opportunity Commission in 2012 issued a ruling explicitly affirming protections against employment discrimination for transgender employees under Title VII. In that landmark EEOC ruling, Macy v. Holder, the plaintiff was a police detective who was denied an ATF position after she disclosed during a background check that she was in the process of transitioning from male to female. 

“The EEOC’s opinion discussed a number of federal court decisions over the years that have recognized Title VII claims on the basis of gender identity stereotyping, not just on the basis of discrimination based on the biological sex of the employee,” Marcus said. 

But Macy v. Holder went a step beyond those decisions, explaining that evidence of gender stereotyping is just another means of proving sex discrimination, she said. As the EEOC explained it, transgender discrimination is a form of sex discrimination, whether it’s discrimination against a person for not conforming to one’s assigned sex at birth or the employer doesn’t approve of how the transgender person presented his or her gender during the transition to sex reassignment. 

The EEOC’s language in the Macy opinion is forceful and unequivocal in its recognition of Title VII protections against transgender discrimination, Marcus said. Explaining that most federal courts have recognized such protections, the EEOC ruled, “As used in Title VII, the term sex encompasses both sex, that is, the biological differences between men and women, and gender.” As such, the terms gender and sex are often used interchangeably to describe the discrimination prohibited by Title VII, Marcus added. 

The term gender encompasses not only a person’s biological sex but also the cultural and social aspects associated with masculinity and femininity, Marcus said. As a result, the Macy decision concluded, “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.” 

This language is revolutionary in its explicit embrace of the reality that has long been recognized by LGBT individuals, activists and lawyers, but is new territory for many: the reality that gender is a much broader construct than a black-and-white understanding of biological sex and the corresponding reality that the law must accordingly recognize that gender discrimination takes many forms, as does its victims, Marcus said. 

The Supreme Court itself in 1989 paved the path for the protection of transgender employees under Title VII in its Price Waterhouse v. Hopkins decision, where it recognized that gender stereotyping is a type of sex discrimination prohibited by Title VII, with gender being something much broader in character than discrimination merely on the basis of biological sex, Marcus explained. “In that case, a national accounting firm had failed to promote Ann Hopkins not just because she was female but more because of gender stereotypes,” she said. “The reason she was passed over for partnership, according to the firm, was that she was too aggressive and macho, and the partners said she overcompensated for being a woman. But if she had walked, talked and dressed more femininely and wore jewelry, she could have made partner.” 

The significance of Price Waterhouse, Macy v. Holder and other gender identity and transgender discrimination cases brought under Title VII isn’t just the immediate relief it provides the transgender litigants, according to Marcus. “In a broader sense, these decisions help reveal and start to resolve some of the issues courts have faced in their efforts to clarify the meaning of gender and sex in their decisions, illustrating how sex discrimination extends beyond simplistic dichotomies,” she said. 

The third recent development that could affect employment discrimination cases is the Supreme Court’s decision to hear two same-sex marriage cases, one of which is a challenge to California’s Proposition 8 ban on same-sex marriage and one of which is a challenge to part of DOMA, the Defense of Marriage Act. The courts have tied themselves into confusing and contradictory logical contortions in their analyses of same-sex marriage cases involving transgender persons, Marcus said. 

“Because when one half of a same-sex couple once was recognized as one sex but transitioned to another, results-oriented courts that are determined not to grant same-sex marriage rights at any costs have inconsistently in some cases denied marriage rights to couples because of the originally assigned sex of one of the partners, if that’s what could render the couple a same-sex couple,” she said. “But then in other cases, they have denied marriage rights based on the post-transition gender of the partner. These courts have defined sex and gender inconsistently in the process, focusing alternatively on genitalia, chromosomes, appearance or self-identity, depending, it seems, on whatever result the court wants. 

“What these cases illustrate is the absurdity of even trying to define sex or gender in terms of narrow black and white boxes,” Marcus continued. “What transgender people can help all of us understand is that gender and identity are fluid, and as members of the legal system, we should be flexible as well in accommodating the universal needs of a diverse clientele.” 

If, through the Supreme Court marriage cases that will be decided, the court were to recognize that sex discrimination includes discrimination against LGBT individuals who are in same-sex partnerships, this may become a significant development for transgender individuals in other contexts, including employment discrimination, Marcus said. 

“While transgender employees already have potential claims against government employers under the Equal Protection Clause, for example, these claims would only be strengthened by a positive decision by the Supreme Court recognizing LGBT discrimination as a form of sex discrimination,” Marcus said.

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