More Transgender Discrimination as Sex Discrimination

Well, add another case to the growing body of law regarding whether transgender discrimination is sex discrimination. This time from the U.S. military. The U.S. Office of Special Counsel issued this Report of Prohibited Personnel Practice in August, but just now released a redacted version to the public.

Technically, the report concludes that:

[T]he Agency's discrimination against Doe on the basis of her gender identity, including her gender transition from a man to a woman, constituted a PPP (prohibited personnel practice) under 5 U.S.C. § 2302(b)(10)(discrimination based on conduct not adverse to work performance) . . . . OSC makes no determination regarding Doe's sex discrimination claim, [but] OSC relies on pertinent EEO law for appropriate context.

But, the report notes at the outset that transgender discrimination " likely constitute[s] a PPP of sex discrimination." The report also relies on Title VII precedent for "guiding principles."

Bottom line: Although the report technically makes no determination on the issue of sex discrimination, it does so in a way that makes pretty clear that the office believes transgender discrimination is sex discrimination.