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Wednesday, May 02, 2012

EEOC Accepts Transgender Discrimination as Sex Discrimination

I'm delighted to be back on Prawfs (even if Dan did "forget" to list me on this month's roster).  In all seriousness, I much appreciate the community of bloggers and commenters on this site, and Dan for making it all happen.

It looks to be another busy news month.  Leading off on the topics I want to pose is the news that the EEOC has decided that discrimination against a transgender person constitutes sex discrimination under Title VII  (Macy v. Holder).  Thanks to Nan Hunter's blog for noting this.

Macy's facts are straightforward.  Macy, a police detective, applied for a job with the ATF.  Things seemed to be going well until she disclosed that she was transitioning from male to female, when the bureau suddenly decided that budget cuts made it impossible to hire her, a fact that apparently was untrue.  She filed an EEO complaint with the agency, which decided that her "gender identity stereotyping" claim could not be processed under Title VII, but only under the (apparently less favorable) intra-DOJ system for considering gender identity and sexual orientation discrimination claims.

On appeal, the Commission held that transgender discrimination claims were included within the types of gender discrimination that Title VII precluded.  It relied heavily on Price Waterhouse v. Hopkins, the well-known 1989 case that allowed a female plaintiff to state a claim of sex discrimination based on her theory that she was denied promotion because of her failure to conform to traditional notions of how a woman should look and act.  The Commission held that that type of sex stereotyping theory was broad enough to include claims of transgender discrimination.

Some preliminary thoughts after the jump.

First, as a general matter (i.e., going beyond the details of Title VII interpretations) it's astonishing how quickly transgender status has come to be seen as grounds for a colorable discrimination claim.  Given how deeply the transgender issue cuts into our notions of male and female it's notable that these claims have attained even the level of partial success they currently enjoy.

Second, it's interesting to consider what Title VII interpretations like Macy could mean for the Employment Non-Discrimination Act.  There's been a good deal of struggle about whether ENDA advocates should settle for a bill that excludes gender identity expression, on the theory that  success on a less comprehensive law today will ultimately redound to the benefit of trans people, by building momentum for a more comprehensive law eventually.  Cases like Macy may lead some to conclude that there's less reason to fight for gender identity inclusion in ENDA.  Indeed, continued inclusion of GI status in ENDA might even lead some courts to reject interpretations like Macy's, on the theory that any congressional defeat of a GI-inclusive ENDA reflects congressional intent to exclude gender identity from employment non-discrimination.

Third, it may be interesting to see if cases like Macy redound to the benefit of gays and lesbians, who might be able to claim the same sort of sex stereotyping Macy accepted as discrimination on the basis of sex.  In the past at least some courts have not favored this argument, drawing a distinction between sex and sexual orientation.  (I believe some courts have also noted Congress's failure to enact ENDA over the last decade and a half as evidence that Congress agrees with that distinction.) How transgender status fits in with the relationship between sexual orientation and sex or gender is a fascinating, but tough, question.  Macy's analysis will presumably contribute to that ongoing debate, as the arguments in favor of finding a closer relationship migrate from law review pages to case reporters.

Interesting stuff, for sure.

Posted by Bill Araiza on May 2, 2012 at 06:19 PM in Employment and Labor Law | Permalink

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