The Civil Rights Act of 1964 was comprehensive legislation prohibiting discrimination in both the private and public sectors. Title VII prohibits employment discrimination on the basis of “race, color, religion, sex, or national origin” and applies to employers with fifteen or more employees (Civil Rights Act 1964). Race, color, religion, sex, and national origin are protected classes that are specifically covered under the statute. Since the time that the Civil Rights Act of 1964 was passed, the social landscape in the United States has changed a great deal. Generally speaking, the nation has become much more tolerant, and this is reflected in the emergence of the LGBT community and the Supreme Court’s recent decision to uphold the fundamental right to same-sex marriage (Obergefell v. Hodges, 2015). But despite these great strides toward equality, the fact remains that transgender citizens still struggle for protection under Title VII. They do not have specific anti-discrimination protection under Title VII and have had to fight in order to utilize Title VII to bring discrimination charges against an employer with EEOC. This, in essence, denied transgender persons the basic rights of “equal protection of the laws” as guaranteed by the Constitution (U. S. Constitution, amend. XIV).
Setting the stage for changes in Title VII cases was Price Waterhouse v Hopkins, a 1989 Supreme Court decision that did not appear to have anything to do with transgender employees. In this case, Ann Hopkins’ claim of discrimination was upheld based on having been denied a promotion because her behavior did not fit the traditional role of femininity (Price Waterhouse v. Hopkins n.p.). Although not brought with regard to a transgender employee, the Supreme Court’s decision clearly noted that when an employment decision is made based on sex and demonstrated through the use of gender roles or gender role stereotypes, that decision violated Title VII (Chow 209). This decision was followed by the Ninth Circuit stating that Title VII must be construed to protect employees from discrimination based on both sex and gender, succinctly differentiating between the two just as Justice Scalia had done. This would be used as the arguable precedent for sweeping changes to come in Title VII rulings addressing transgender (EEOC (2016) n.p.).
This change did not sweep across every court, though. Plaintiffs continued to face court rulings which seemed to clearly contradict the Supreme Court’s ruling. Chow (210-211) noted a specific case in which the discrimination against a transgender employee was determined to not have violated Title VII because “gender stereotypes is not broad enough to include men with GID [Gender Identity Disorder] or men who dress like women.” Chow goes on to point out, however, that the very definition of gender stereotype is the process of making assumptions about how a person should behave based solely on their biological sex. In another example of upheld discrimination and a court’s justification for it, Glen James lost his claim of discrimination when the court ruled against him on the grounds that “it is permissible to discriminate against transsexuals as long as one discriminates against all transsexuals” (Chow 211).
In 2004, the first major federal case which decision would protect transgender employees from discrimination was heard. Smith v City of Salem was one of the first cases to uphold the rights of transgender complainants under Title VII (Beyer & Weiss n.p.). It was not an immediate victory, however. Initially, Smith lost the case based on the court’s determination that “Title VII does not protect transsexuals as a class” (Chow 213). Smith appealed the case and the Sixth Circuit considered first Smith’s claims of gender stereotyping. The Sixth Circuit, however, considered the Supreme Court’s Price Waterhouse contention and found that the lower court had failed to include gender in Title VII’s prohibition of sex discrimination (Chow 214). The Sixth Circuit’s decision in light of the Supreme Court’s previous proclamation summarily expanded the scope of Title VII for future gender discrimination cases. Judges who did not want to be overturned on appeal were effectively put on notice.
This was followed by cases in 2008 and 2011, each ending with a victory for transgender citizens. In 2008, Diane Schroer, a biological male, was offered a job with the Library of Congress. Upon accepting the position, Schroer advised her supervisor that she was in the process of transitioning to female and asked to begin her position as such. Within days Schroer’s offer was rescinded, her supervisors arguing that Title VII did not protect against discrimination based on gender identity. The Federal District Court for Washington, D.C., disagreed (Beyer & Weiss n.p.). In 2011, Vandy Beth Glenn won her gender discrimination case in Georgia in United States District Court, Atlanta. When her employer, the Georgia General Assembly, appealed the decision, it was upheld in the Eleventh Circuit Court of Appeals (Beyer & Weiss, n.p.).
But it was the 2012 Mia Macy case which would become the landmark case for transgender discrimination (Beyer & Weiss, n.p.) and when the tide began to make an irreversible turn (U.S. Equal Employment Opportunity Commission [EEOC], n.p.). Filed by the Transgender Law Center as Macy v. Holder, it may well stand as the beginning of a new era. It was in Macy v. Department of Justice when the EEOC determined that intentional discrimination towards an individual because of their gender identity constituted discrimination and therefore violated Title VII (Beyer & Weiss, n.p.). Following this ruling, the EEOC adopted a Strategic Enforcement Plan that included “coverage of lesbian, gave, bisexual and transgender individuals under Title VII’s sex discrimination provisions” (EEOC, 2016, n.p.).
Like others before it, the ruling in Macy v. Department of Justice was based on the 1989 Supreme Court decision in Price Waterhouse v Hopkins. By using this decision, Macy v. Department of Justice was able to incorporate transgender individuals due to their violation of gender role expectations, i.e., the behavioral expectations based on their biological sex compared to the expression of their gender identity. In that case, the EEOC unequivocally “declared unanimously that anti-trans bias was sex discrimination under Title VII” (Beyer & Weiss n.p.). The winds of change were finally blowing fiercely in a new direction.
The EEOC embraced this finding and went beyond using it in response to claims of transgender discrimination. Taking this decision to heart, the EEOC incorporated it into their efforts to proactively address discrimination against the LGBT community. According to their 2016 report, the EEOC formed a working group to specifically address employment discrimination issues among the LGBT community. The group was designed, and continues still, to provide guidance and advice to EEOC litigators, coordinate new initiatives and internal policies, train staff and provide external support and outreach (EEOC, 2016).
More cases followed further addressing the rights of transgender employees. In 2015, two court cases addressed the intentional misuse of a transgender employee’s name change or the pronoun identifying the employee and the “employer’s failure to revise its records pursuant to changes in gender identity” finding that these instances were in violation of Title VII (U.S. Equal Employment Opportunity Commission [EEOC], n.d., n.p.). With every case, the factors defining discrimination on the basis of sex and gender become clearer. And Beyer and Weiss (n.p.) contend that, given the trends in rulings for the past decade, there is little chance an employer will succeed in challenging the EEOC in this matter. Quoting Hon William Pryor, Jr., noted to be a reputedly conservative federal judge and a member of the Eleventh Circuit which decided Glenn v. Brumby, “courts are ruling with near-total uniformity on behalf of transgender claimants” (Beyer & Weiss n.p.).
Conclusion
Transgender individuals have experienced an uphill battle in their fight for equal rights, protection, and visibility among minority groups. While the law has been much more receptive to affording transgender individuals protection in the workplace, the cases continue to fill dockets around the country with both pending and appellate cases. Most interesting to me, however, is the argument lower courts have consistently used in denying protection to transgender complainants. Time and again in these cases, courts have argued that the protection against discrimination afforded by Title VII does not include transgender individuals. As the struggle ensued, statements and rulings by judges across the nation, as well as the message they sent out by their very inaction, indicated discrimination was acceptable. They seemed to recognize that discrimination occurred, but because it was directed at transgender individuals it was not illegal. It is hard to imagine that this is not the same narrow and biased logic that allowed injustice to African-Americans, women and immigrants. It follows the sad logic that suggests as long as the injustice does not affect me or mine, it will be tolerated. At what point will all people, but most certainly our courts, recognize that an injustice can be visited upon everyone if we allow it to be visited upon anyone.
Works Cited
Beyer, Dana & Jillian T. Weiss. “New Title VII and EEOC Rulings Protect Transgender Employees.” Transgender Law Center (2014). Web. 11 March 2016.
Chow, Melinda. “Smith v City of Salem: Transgendered Jurisprudence and an Expanding Meaning of Sex Discrimination under Title VII.” Harvard Journal of Law and Gender 28 (2005): 207-215. Web. 12 Feb. 2016.
Civil Rights Act of 1964, Pub.L. 88-352, 78 Stat. 241 (1964). Web. 12 Feb. 2016.
Macy v Department of Justice, Appeal No. 0120120821, Agency No. ATF-2011-00751.
(2012).
Obergefell v. Hodges, 135 S.Ct. 2584. Supreme Court of the US (2015). Web. 12 Feb. 2016.
Price Waterhouse v. Hopkins, 490 U.S. 228, No. 87-1167. Supreme Court of the US (1989). Web. 11 March 2016.
Raflo, Amanda. “Evolving Protection for Transgender Employees under Title VII’s Sex
Discrimination Prohibition: A New Era Where gender Is More Than Chromosomes. Charlotte Law Review (2010): 217-250. Web. 12 Feb. 2016.
U. S. Constitution. Amendments, Article XIV, Section 1.
U. S. Equal Employment Opportunity Commission. (2016). Fact sheet: Recent EEOC litigation regarding Title VII & LGBT-related discrimination.
U. S. Equal Employment Opportunity Commission. (n.d.). What you should know about EEOC and the enforcement protections of LBGT workers. Retrieved from http://www.eeoc.gov/eeoc/newsroom/wysk/enforcement_protections_lgbt_workers.cfm
