Legal Protections for Transgender Employees

by Michelle Kaemmerling and Shelby Howlett

The past few decades have brought significant changes to the federal government’s stance on what rights and protections are afforded to people who identify as lesbian, gay, bisexual or transgender—commonly referred to as the LGBT or LGBTQ community. In 2003, the Supreme Court struck down laws criminalizing same-sex intimacy and, in 2015, the Supreme Court ruled that the right to marry is guaranteed to same-sex couples. During the Obama administration, federal agencies expanded the rights and protections given to individuals who were previously excluded due to their LGBT status. Yet, some of those positions are being revisited by the current administration, and there is disagreement in the courts as well.

One still unresolved question for the LGBT community is to what extent federal employment law protects transgender employees. A transgender individual is one who identifies with a different gender than the one assigned to them at birth. Gender identity is a person’s internal sense of being a man or a woman. For transgender people, the gender they were assigned at birth—based on their anatomy—and their own internal gender identity do not match. Federal courts and agencies are divided on whether federal anti-discrimination employment law extends to transgender employees.

Disagreement in the Courts

Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees on the basis of sex and a number of other categories, but does not explicitly list sexual orientation or gender identity. The question currently being litigated is whether the prohibition against discrimination on the basis of sex by definition includes discrimination on the basis of sexual orientation and gender identity.

While the United States Supreme Court has never addressed this question, it has held that discrimination based on gender stereotyping is a form of sex discrimination protected by Title VII. Accordingly, it is unlawful to take a negative employment action against a male employee because he acts effeminate or against a female employee because she is not “lady like.” For example, in the 1988 case Price Waterhouse v. Hopkins, a woman sued her former employer after she was denied partnership. The employee claimed that she was not promoted because she did not match the partners’ ideas of how a woman should act, speak or dress. Specifically, she alleged that the partners suggested that she walk, talk and dress more femininely, wear makeup, style her hair and wear jewelry. In this important case, our highest court ruled that this type of discrimination claim based on failure to conform with societal gender norms is actionable under Title VII.

Such “sex stereotyping” claims can be brought by transgender employees who allege discrimination because they do not dress or act in conformity with societal expectations for their assigned sex. But the question of whether Title VII also prohibits discrimination on the basis of sexual orientation or gender identity is still unresolved. The Sixth Circuit, which encompasses Kentucky and Tennessee, has ruled that transgender employees are protected under Title VII because transgender discrimination is a type of sex discrimination. (EEOC v. R.G. & G.R. Harris Funeral Homes, Inc.) Conversely, the Eleventh Circuit, which encompasses Georgia and Alabama, maintains that Title VII’s ban on sex discrimination does not extend to transgender discrimination. (Glenn v. Brumby)

Because of the uncertainty about whether transgender discrimination is prohibited by Title VII, many hope that the Supreme Court will weigh in. A case that presents the issue has been appealed to the Supreme Court but, at the time of publication, it appears unlikely that the Court will hear the case. It is important to note that although the state of federal law remains unclear, almost half of the states have employment civil rights laws that expressly prohibit discrimination based on sexual orientation and gender identity.

Conflicting Views Among Federal Agencies

Both the Obama and Trump administrations brought major changes in the way federal agencies handle discrimination against transgender employees. Because of the different stances of the two most recent administrations, we currently do not have consistent positions on these issues even among federal agencies.

For example, the Equal Employment Opportunity Commission (EEOC)—which is the federal agency that oversees enforcement of Title VII—issued guidance during the Obama administration asserting that Title VII protects transgender employees from discrimination. In 2016, the EEOC announced that it would accept, investigate and pursue charges from individuals alleging that they were discriminated against because of their transgender status or sexual orientation. As a result, the number of LGBT-based sex discrimination charges the EEOC resolved increased from 337 cases in 2013 to 1,649 cases in 2016. The EEOC maintains this position today and continues to pursue LGBT claims despite the Trump administration’s conflicting view. In 2017, the EEOC resolved 2,016 LGBT-based sex discrimination charges—its largest number to date. (https://www.eeoc.gov/eeoc/statistics/enforcement/lgbt_sex_based.cfm)

Unlike the EEOC, the Department of Justice (DOJ) reversed its position on transgender discrimination after President Trump took office. In October 2017, Attorney General Jeff Sessions directed the Department of Justice to take the position in court cases that transgender employees are not protected by Title VII, effectively reversing the Obama-era approach. In a memo sent to all United States attorneys, Sessions said that the department should take that position in all pending and future cases. (https://assets.documentcloud.org/documents/4067383/Attachment-2.pdf)

The Office of Personnel Management (OPM) also recently rolled back protection against transgender discrimination. OPM is the agency in charge of developing human resources policies for federal government employees. In November 2018, the Trump Administration removed guidance for federal agencies regarding transgender employees from the OPM website. The OPM also released a memo stating that agencies are only required to change the gender or name of an employee’s personnel file after receiving legal documentation. This is contrary to the OPM’s previous position, which noted that legal change can be difficult and that agencies should allow an employee to change their name without legal documentation. OPM also removed guidance instructing managers to use the name and pronouns that employees request. Despite this guidance, the memo stated that discrimination against federal employees based on gender identity is still prohibited.

Restroom Access

In 2015, the Occupational Safety and Health Administration (OSHA) released a best practices guide to restroom access for transgender workers. The core principle of the guide is that “all employees, including transgender employees, should have access to restrooms that correspond to their gender identity.” OSHA suggests that the best policy is to allow an employee to determine the most appropriate and safest restroom to use. OSHA also suggests providing optional single-occupancy, gender-neutral restroom facilities and multiple-occupant, gender neutral restroom facilities with lockable single occupant stalls. However, an employer should not require transgender employees to use single occupancy restrooms. The EEOC’s position on restroom access for transgender employees is essentially the same as OHSA’s.

The Military

Another area where transgender discrimination policies are in flux is the United States military. In July 2017, President Trump announced a policy via Twitter that bans transgender persons from serving in the military, with limited exceptions. The policy was officially announced in a statement by then-Secretary of Defense James Mattis in 2018. There is an exception to the policy for transgender people who already serve in the military openly or new members who are willing to identify with the gender they were assigned at birth. The policy was promptly challenged in federal court and several courts ordered nationwide injunctions. In January 2019, the United States Supreme Court lifted two preliminary injunctions out of California and Washington State, intending to allow the ban to take effect while the lower courts hear additional arguments. However, the Supreme Court’s decision did not address a third injunction from a case in Maryland, so a nationwide injunction is still in place at the time of publication. It will likely be years before there is a final decision on the legality of the military’s transgender ban.

Compliance and Best Practices

  Given the uncertainty in many aspects of employment law relating to transgender employees, employers should ensure they are in compliance with the laws providing the most generous protections. For example, OSHA and EEOC have issued clear guidance on restroom access. And, the Supreme Court has held that all employees are entitled to work in environments free of sex stereotyping. Also keep in mind that, in many states, transgender employees are protected from discrimination at work as a matter of state law. As a best practice, companies should train their workforce to be sensitive to issues impacting transgender workers. For example, managers should be trained to use the pronoun of the gender with which a transgender employee identifies. Because the applicability of certain legal protections to transgender employees is unsettled, employers who err on the side of treating gender identity as a protected class will minimize their legal risk and are likely to see other benefits associated with having an inclusive workplace.