Does “Transgender Discrimination” Equal “Sex Discrimination” Under Title VII?

This is an issue raised in the R.G. & G.R. Harris Funeral Homes v. EEOC case, for which the Supreme Court will hear arguments next month. In this case, the Equal Employment Opportunity Commission (EEOC) sued a Detroit area funeral home chain because the owner fired an employee due to disclosing her intent to transition from male to female. The lower court ruled in favor of the funeral home, but the Sixth Circuit Court of Appeals reversed the decision, arguing that transgender discrimination is a form of sex discrimination prohibited by Title VII. The Supreme Court agreed to review the decision.

 In a bizarre twist due in large part to a change in administration and therefore legal position, the Solicitor General of the Department of Justice (DOJ), arguing on behalf of the EEOC, now takes the stance that transgender discrimination and sex discrimination are two different things.

 Among other points, the DOJ argues that the ordinary public meaning of “sex” in 1964 when Title VII was enacted referred to biological sex, and there is no indication that Congress was considering transgender persons. Congress’ actions since then confirm this understanding. In other legislation enacted since 1964, Congress has specifically included gender identity as a protected category, but never for Title VII. The DOJ further states that the fact that legislation listing "gender identity" as a category separate from "sex" is proof that Congress treats the two as different things.

 Moreover, when Congress has amended Title VII (in 1978, to supersede a Supreme Court decision that held discrimination based on pregnancy was not "sex" discrimination, and again in 1991, at which time three courts of appeals had addressed the issue of transgender discrimination under Title VII and held that such is not prohibited by the current law), it has opted not to specifically include gender identity as a protected class.

 In recent years, Congress has considered expanding Title VII to prohibit discrimination based on gender identity. Bills to that effect have been introduced every year since 2007, but none have been enacted. If Title VII already protected transgender individuals, new legislation would be unnecessary. If, on the other hand, Title VII doesn't currently protect against transgender discrimination, Congress has thus far rejected an expansion to prohibit such discrimination.

For these reasons, the DOJ takes the position the transgender discrimination and sex discrimination are different things. The Solicitor General’s brief clarifies, however, that the DOJ is not expressing an opinion about whether or not transgender discrimination should be prohibited:

“To be clear, the question in this case is not whether employers ought to be prohibited from discriminating against individuals who are transgender. It is whether Title VII as written currently bars such discrimination.” (Emphasis in original.)

This case and series of events illustrates not only the evolution of law, but also the impact that political change can have on its interpretation. Even if the Supreme Court ultimately finds that Title VII does not prohibit gender identity discrimination, employers should keep in mind that other legislation at various jurisdictional levels does, and Congress could also take action to legislatively overrule such a decision.

 This blog article is intended for general informational purposes only and should not be construed as legal advice or opinion. Contact myHRcounsel with questions concerning specific facts and circumstances.

 Written by Brittany Nicholls