Workplace discrimination—including that based on race, religion, age, and sex—is prohibited by federal law. As such, when an individual is treated differently based on his or her sex—or for changing their sex—recourse through the legal system is available.
The rights of transgender individuals present a relatively new legal frontier and they are becoming the focus of new precedents and regulations on both the federal and local levels. As visibility of transgender persons increases, it is important for workers and employers to know their rights and to understand sex-based discrimination laws and when to seek the advice of a discrimination attorney.
Title VII: The debate on the federal level
Title VII of the Civil Rights Act (Title VII) protects employees from discrimination and specifically names “sex” as one of the protected categories. In a 1989 case that did not involve a transgender individual, the Supreme Court decided that sex stereotypes could be a form of sex discrimination. In Price Waterhouse v. Hopkins, a female employee of the firm did not make partner because she didn’t act or look like a woman based on the stereotypes held by her employer. The Supreme Court sided with Hopkins, setting the precedent that sex-stereotyping (that a woman must “act like” a woman) violated Title VII and constituted discrimination.
However, in October 2017, U.S. Attorney General Jeff Sessions announced that transgender workers are not afforded protections under federal civil rights laws.
“Although federal law, including Title VII, provides various protections to transgender individuals, Title VII does not prohibit discrimination based on gender identity per se,” said Sessions. “Title VII expressly prohibits discrimination ‘because of sex…’ and several other protected traits, but it does not refer to gender identity. ‘Sex’ is ordinarily defined to mean biologically male or female.”
Since making this statement, prominent organizations like GLAAD have pushed back on Sessions, documenting his claims and citing recent rulings that demonstrate a precedent for gender identity inclusion in Title VII cases that run counter to the attorney general’s claim.
Hope for equal protection
Although Title VII does not specifically protect based on gender identity, some courts have held that gender identity-based discrimination falls under the category of sex stereotyping, which, as mentioned above, has been recognized by the Supreme Court as a type of sex discrimination. Included in the federal cases that upheld transgender rights under Title VII are Schroer v. Billington in the U.S. District Court for D.C. and Glenn v. Brumby in Atlanta’s Eleventh Circuit. As such, transgender-based discrimination should not be permissible under federal law. In fact, the Equal Employment Opportunity Commission (EEOC) states that discrimination based on an individual’s gender identity is prohibited under Title VII.
The National Center for Transgender Equality is taking the fight a step further. “According to Sessions, an employer is free to hang a ‘Transgender Need Not Apply’ sign in their window,” wrote the organization’s executive director, Mara Keisling, in an email. “Fortunately, he is dead wrong on the law.”
In the meantime, however, the Department of Justice is likely to intervene in several pending cases. In Sessions’ October 2017 letter, he states that “the Justice Department must and will continue to affirm the dignity of all people, including transgender individuals.” The letter goes on to say that the memo should not be interpreted as “[condoning] mistreatment on the basis of gender identity.”
Even as federal laws have been pushed into the realm of debate, strides have been made to protect transgender individuals in the workplace. The ACLU lists California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, Washington, and the District of Columbia as having laws on the books that “clearly prohibit discrimination against transgender people.” Further, “At least 200 cities and counties have banned gender identity discrimination.”
Despite these efforts to create a more tolerant work environment, transgender people still face harassment on the job. According to a survey done by the National Center for Transgender Equality and the National Gay and Lesbian Task Force, transgender people face double the rate of unemployment, and a staggering 90 percent have reported “experiencing harassment, mistreatment or discrimination on the job or took actions like hiding who they are to avoid it.”
The issue of access to bathrooms has been a nationwide controversy, with some people arguing that individuals should only be allowed to use restrooms that correlate to their birth sex. Just last year, North Carolina enacted legislation that prohibited anyone from using a public bathroom that didn’t correlate to their birth sex. The law prompted outrage from LGBTQIA+ rights groups, the ACLU, the EEOC, celebrities, and across social media. A quick look at the Transgender Law Center’s Equality Map shows that the states with strong trans rights policies are concentrated mainly in New England and the West Coast, while those with low or no protections still dominate the map.
When to seek legal help
Gender identity in the workplace can impact access to bathrooms, uniforms and dress code policies, and health care, among other things. If you have been the victim of workplace discrimination based on your gender identity, your best line of defense is to consult with an experienced employment law attorney. These laws and court rulings are constantly evolving, and the help of a highly skilled lawyer is crucial to a favorable outcome.
“I think it’s always a good idea to consult with an attorney, and at least go over the details of what’s happening to get a sense of what the current case law is and the interpretation is, both in the states that the person is living and how it might trigger not only their state laws but also potentially local municipality policies and regulations as well,” says Milo Primeaux, the principal attorney at the Law Office of Milo Primeaux, Esq., who was a longtime transgender rights advocate before beginning his legal practice in upstate New York. “These cases can be very nuanced, employers have gotten just enough knowledge about these issues to know not to be overtly transphobic, or homophobic, or sexist, and have found very sneaky ways to make a person know that they are not valued, not welcome, and not able to continue in their place of employment with any sort of success or support. In the old days you would see letters or emails or blanket statements that really clearly said, ‘I don’t like you because you’re a trans person and you’ve got to go.’ We just don’t see those anymore. And so to figure out if the whole of your issue rises to the level of being discriminatory under the law, it’s really a good idea to talk to an attorney no matter what.”
Of particular concern to transgender individuals is finding the right attorney, one who will be sympathetic to their situation and respectful in their counsel. Legal resources geared toward the LGBTQ community are available, though they vary by state. Contacting a national nonprofit or legal center like the National Center for Transgender Equality, or your state bar association, can lead you to the right lawyer for your case.
“Most states now have some sort of resource available that keeps tabs in the state of LGBTQ providers of some kind,” Primeaux says. “It could be an equality organization that deals with statewide policies, it could be the local community center. Even healthcare providers that are LGBTQ friendly know about other providers like social services and attorneys in the area who might also be friendly. Reaching out to the resources that exist in your state, contacting the bar association in your state, and finding out if they can make referrals to any LGBT attorneys, is one way to do it.”