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Courts have ruled differently on whether federal law protects ‘gender identity’
in a Texas court is the case ofLeyth Jamal, who claims in her
lawsuit against Saks & Co. that because she is transgender, co-workers
belittled her, forced her to use the men’s room and referred to her with male
pronouns before her supervisors eventually fired her.
luxury retail store’s response to the suit has captured national attention:
Saks lawyers wrote in a Dec. 29, 2014, filing that the company was within its rights to fire Jamal
because although sex discrimination may be against the law, that’s not the same
as discriminating against someone because of what the lawyers called a “sexual
issue is how the U.S. District Court for the Southern District of Texas will
apply the conflicting rulings on transgender protections that previous courts
have handed down, as well as how it will interpret Title VII of the Civil
Rights Act of 1964, which has no specific prohibition against transgender
federal case law on the question of transgender protections is far from
settled, which often leaves HR departments relying on local or state statues
(18 states prohibit discrimination based on sexual orientation and gender
identity). But in the absence of such laws—for instance, Texas has no such
prohibition—HR managers across the nation will be watching to see if the court joins
others that have interpreted Title VII as protecting transgender workers, or sides
with the minority of courts that have ruled that it doesn’t.
prohibits “sex discrimination,” but not “gender identity discrimination.”
that reason, Saks in December 2014 petitioned the court to dismiss Jamal’s
case, arguing that it is “well settled” that transgender people aren’t
protected under Title VII. They quoted
from a 1984 7th Circuit ruling that said sex discrimination is not synonymous
with “discrimination based on an individual’s sexual identity disorder or
discontent with the sex into which they were born.”
Tiffany Bourre, a Saks spokeswoman, said her company's "overall commitment to support the LGBT community is clear and unequivocal."
"Moreover, Saks believes that all persons are protected against sex discrimination under Title VII," Bourre wrote in an email. "However, that is not what we believe the plaintiff has asserted in this case."
legal director for the National Center for Lesbian Rights, said most courts
that have considered similar cases in the past few years have held that Title
VII prohibits discrimination against transgender people.
“There is no
need for Title VII to specifically use the term ‘transgender,’ since
discrimination because a person has changed his or her sex is plainly sex
discrimination,” Minter said. “Just as discrimination because a person has
changed his or her religion would be religious discrimination.”
however, have ruled that in the absence of local or state laws, transgender
workers don’t have protections.
The question of
federal protection for transgender workers may not be settled until the Supreme
Court addresses the issue.
legal director at the Transgender Law Center, said that if the Texas court were
to rule against Jamal, “it could be appropriate for the Supreme Court to take
up the case and confirm what the vast majority of federal courts to consider
the issue in recent years have held: that Title VII should in fact be
understood to cover discrimination against transgender employees.”
Said Minter: “In
the past, there was a question about whether Title VII protected male employees
who were sexually harassed by other male employees. Some courts held
that it did, others held that it did not. The Supreme Court eventually settled
the question by holding that Title VII does prohibit workplace harassment of
men by other men. Most courts have now held that Title VII protects transgender
workers, and that issue will eventually likely be definitively settled by the
Supreme Court as well.”
As for the U.S. Equal Employment Opportunity
Commission (EEOC), it has interpreted Title VII to provide protections for
transgender employees. It ruled in April 2012 in Macy v. Holder that an employer who discriminates against an
employee or applicant because of the person’s gender identity is violating the
prohibition on sex discrimination contained in Title VII.
Transgender Law Center brought the case on behalf of Mia Macy, a military
veteran and a former police detective. She was denied a job as a ballistics
technician at the Walnut Creek, Calif., laboratory of the federal Bureau of
Alcohol, Tobacco, Firearms and Explosives after coming out as transgender.
federal court and administrative decisions—virtually every court to consider
the question in the past 15 years—have recognized that Title VII’s existing
prohibition of sex discrimination protects transgender people from
discrimination, because discrimination against a transgender person is always
in some way related to that person’s sex and a perception that they go against
some sort of sex stereotype,” Turner said. “Only a tiny minority of courts have
come out the other way.”
Transgender Rights Project Director of Gay & Lesbian Advocates &
Defenders, said that courts have sided with transgender plaintiffs “sometimes
because adverse action taken against them based on their gender identity is
prohibited sex stereotyping,” and sometimes because “increasingly, courts have
acknowledged the intrinsic connection between a person’s sex and his/her
In September 2014,
the EEOC filed two lawsuits against companies accused of discriminating against
transgender employees. One lawsuit was filed on behalf of Aimee Stephens of
Michigan, against R.G. and G.R. Harris Funeral Homes. The other was filed on
behalf of Brandi Branson of Florida, against Lakeland Eye Clinic, P.A. Both
plaintiffs are transgender women who claim their employment was terminated
because of transgender bias.
At an EEOC
hearing Jan. 14, 2015, on harassment in the workplace, Carol Miaskoff, the
EEOC’s acting associate legal counsel, said that “sex harassment is more than
only sexual harassment; it also includes conduct that denigrates someone … based
on the perception that the individual doesn’t conform to culturally created
years, there have been government policy positions and rulemakings that have
afforded the transgender community greater protections against employment
discrimination. For instance, in September 2012, the U.S. Department of Health
and Human Services clarified that provisions in the Patient Protection and
Affordable Care Act prohibiting sex discrimination in health insurance applied
to transgender people.
Dana Wilkie is an online
editor/manager for SHRM.
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