Wednesday, April 25, 2012

EEOC: Transgender Discrimination is Sex Discrimination (Full Opinion Here)

Title VII prohibits employment discrimination "based on . . . sex." It does not expressly protect transgender individuals. It does not protect against discrimination based on "gender identity." But, does the plain meaning of the text in Title VII afford protection to transgender individuals anyway?

Yesterday, the EEOC issued an opinion with a straightforward holding:
Thus, we conclude that intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination "based on . . . sex," and such discrimination therefore violates Title VII.
That's a pretty clear holding. This is hardly groundbreaking legal analysis though. The District of D.C. reached a similar conclusion back in 2008, the Eleventh Circuit held that transgender discrimination is sex discrimination under the Constitution's Equal Protection Clause, and other courts have applied similar analysis. Also, many states and municipalities expressly prohibit discrimination on the basis of "gender identity." Bottom line: If you're an employer, discrimination against transgender individuals is playing with fire.

Why does the EEOC opinion matter? Well, it's a nationwide opinion in that it should serve as precedent for all of the EEOC regional offices to follow. Of course, the courts in any given jurisdiction are not obligated to follow the opinion, but they may afford the EEOC's view some deference.

The full opinion is embedded below (or view online here):EEOC Ruling

HT: Ross Runkel via Twitter.

Image: EEOC logo used in commentary on EEOC. Not official use.