As sexual orientation becomes more mainstream (not that I’m saying it’s accepted everywhere, by any means), gender identity issues are getting attention in our society. Think of Bradley/Chelsea Manning, for example – his gender identity change added a crazy twist to an already juicy story about betraying our country. When someone chooses to identify with the gender opposite their sex at birth, it stands out and can make some people uncomfortable. This discomfort can lead to poor treatment. But is that treatment prohibited by law?
More and more states are passing laws that protect gender identity. And now, the EEOC has stated, for the first time, that gender identity, change of sex and/or transgender status is protected by Title VII’s prohibition on discrimination based on sex, among other things. Although this decision was issued in the context of government employment, the EEOC’s analysis would apply equally to private employers. Therefore, all employers should take note.
In Mia Macy v. Eric Holder, Macy, who was a male at the time, applied for a position in a laboratory of the federal Bureau of Alcohol, Tobacco, Firearms and Explosives (the “Agency”). He was interviewed by the Director of the laboratory, who told him that he would be able to have the position assuming that he passed the background check. He then told the Agency that he was in the process of transitioning from a male to a female. Shortly thereafter, the now female Macy was told that the position was not longer available due to budget cuts. When Macy pushed back for more information, she was informed that, in fact, someone else had been hired by the Agency for the position. She then filed an EEO complaint with the Agency, alleging sex discrimination based on gender identity and sex stereotyping.
The Agency has one system for handling claims of sex discrimination under Title VII. It has a different system for claims of sexual orientation/gender identity discrimination which, under that system, are not entitled to the same rights and protections as Title VII claims. Thus, the Agency told Macy that her sex discrimination claims and the sexual orientation/gender identity claims would be split, with the EEOC handling only the sex discrimination claims. Macy appealed this decision to the EEOC.
Contrary to the Agency, the EEOC found that “claims of discrimination based on transgender status, also referred to as claims of discrimination based on gender identity, are cognizable under Title VII’s sex discrimination prohibition.” The EEOC relied on the case of Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), in which the U.S. Supreme Court recognized a claim for Title VII sex discrimination based on sexual stereotyping, where the plaintiff did not conform with gender-based expectations about how women should walk, talk and dress. Citing a number of federal circuit and district court decisions, the EEOC found that decisions based on a person’s transgender status are “related to the sex of the victim,” and thereby violate Title VII.
So, interestingly, although sexual orientation is still not protected by federal law, it turns out that gender identity is.