Transgender as a Protected Status?

Kegler Brown E-mployment Alert

The Equal Employment Opportunity Commission just issued an important decision. In Macy v. Holder, the EEOC ruled that discrimination on the basis of gender identity, sex change, or transgender status is discrimination “on the basis of sex” and therefore violates Title VII.

With respect to discrimination on the basis of transgender status as illegal conduct, the Commission stated:

“... [t]his is true regardless of whether an employer discriminates against an employee because the individual has expressed his or her gender in a non-stereotypical fashion, because the employer is uncomfortable with the fact that the person has transitioned or is in the process of transitioning from one gender to another, or because the employer simply does not like that the person is identifying as a transgender person.”

In the Commission’s view, discrimination because a person is transgender is, by definition, discrimination based on sex.

This ruling is binding only on federal agency employers and federal government employees. It does not apply directly to private employers. However, the ruling may very well affect private employers because, presumably, the EEOC will probably refer to this ruling in enforcement and ruling on discrimination charges against private employers. In addition, the ruling may be considered by and be persuasive on rulings by the courts in non-federal lawsuits, thereby significantly expanding the protections afforded by Title VII.