Are Federal Courts Now Ruling Transgender Discrimination Is Sex Discrimination?

By Eric B. Meyer

Back in April, the EEOC concluded that transgender discrimination is discrimination based on sex and, therefore, violates Title VII.

That same month, a federal court denied another employer’s motion to dismiss the sex discrimination claims of a transgender employee.

However, in denying the motion to dismiss, the court did not conclude that transgender discrimination is sex discrimination. Rather, it reaffirmed that Title VII prohibits sex stereotyping; i.e., when an employer takes action because an employee does not conform to the employer’s sex- or gender-based preferences, expectations, or stereotypes.

Yesterday, this Facebook status update from EEOC Commissioner Chai Feldblum caught my eye:

We are continuing to see a major shift in the law. Yet another court holds that discrimination against a transgender person is a case of sex discrimination and therefore a claim alleging such discrimination may be brought under Title VII of the Civil Rights Act of 1964. EEOC filed an amicus brief in this case, Dawson v. H&H Electric. http://ow.ly/SxWbV“

Is LGBT discrimination sex discrimination?

I absolutely adore Commissioner Feldblum for her passion, advocacy, and tireless efforts to eradicate discrimination in the workplace. I don’t always agree with her. But, she’s a great person and I respect her (and she’s got major Twitter cred).

Anyway, Commissioner Feldblum posted on Facebook that another federal court (in Dawson v. H&H Electric, Inc.) recently concluded that “discrimination against a transgender person is a case of sex discrimination and therefore a claim alleging such discrimination may be brought under Title VII of the Civil Rights Act of 1964.”

I abhor LGBT discrimination. But, LGBT discrimination is not sex discrimination under Title VII. And, I don’t see anything in the Dawson decision as undermining this position.

Indeed, the company argued that Title VII does not prohibit LGBT discrimination based solely on that status. And, in its own brief, the EEOC took the opposing view; namely, it argued that discrimination against an individual because he or she is transgender is discrimination because of sex in violation of Title VII.

But, rather than endorse the EEOC’s position and give the employer the back of the hand by proclaiming that Title VII does prohibit discrimination based solely on LGBT status, the Court denied the employer’s motion to summary judgment on other grounds. That is, the Dawson Court reaffirmed and applied the U.S. Supreme Court’s holding in Price Waterhouse v. Hopkins that Title VII prohibits sex stereotyping.

What employers should note

So, while Dawson is another sex-stereotyping case, employers should take note for several reasons:

• Many state and local laws prohibit LGBT discrimination based solely on that status.
• The facts underlying a claim of LGBT discrimination often lend themselves to a sex-stereotyping claim too, which is unlawful under Title VII.
• The EEOC is going to continue to argue that transgender discrimination is discrimination based on sex until the Supreme Court says otherwise, or Congress passess a law specifically banning LGBT discrimination in the workplace.