A Publication of the American Bar Association Section of Labor and Employment Law

EEOC Holds That Title VII Prohibits Discrimination on the Basis of Transgender Status


Overturning the Department of Justice's refusal to give full consideration to the EEO claim of a transgender federal employee, the U.S. Equal Employment Opportunity Commission (EEOC) held, in Macy v. Holder (April 20, 2012), that discrimination based on gender identity, change of sex, and/or transgender status is discrimination on the basis of sex, prohibited by Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq.

The Facts and Procedural History

Mia Macy is a transgender woman who worked as a police detective in Phoenix, AZ, while still living as a male. Prior to transitioning, in December 2010, she decided to relocate to San Francisco. She applied for an opening in the Bureau of Alcohol, Tobacco, Firearms and Explosives Agency's crime laboratory in Walnut Creek and interviewed by phone with the Director of the lab. After discussing her background, credentials, and the proposed salary and benefits, the Director told Macy that she could have the job, pending a background check. In a subsequent phone call, Macy alleges that the Director told her that the job was hers, pending completion of the background check. She was then contacted by a staffing firm to begin the necessary paperwork for the position, and an investigator was assigned to conduct her background check.

On March 29, 2011, Macy emailed the staffing firm to inform them that she was transitioning from male to female and asked that this information be passed on to the Director of the Walnut Creek lab. On April 3, 2011, the staffing firm told Macy that the Agency had been made aware of her transition. Five days later, the Director of the lab sent Macy an email stating that the position was no longer available due to budget cuts.

Macy then contacted an EEO counselor at the Agency to discuss her concerns that the job offer had been withdrawn based on her gender identity. The counselor told her that the job had not been closed for budgetary reasons, but rather was filled by another employee. The counselor stated that the other applicant was hired because that person was farthest along in the background check process. Suspecting this reason was pretextual, Macy filed a formal EEO Complaint, citing discrimination based on sex, specifically citing "gender identity" and "sex stereotyping" as the basis for her complaint.

The Department of Justice informed Macy that it intended to pursue her claim for discrimination on the basis of sex under Title VII, but that it considered her claim for gender identity discrimination to be a separate claim, which would not be afforded the right to request a hearing before an EEOC judge or the right to appeal the final Agency decision to the EEOC because it was not covered by the federal statute.

Macy appealed to the EEOC, claiming that the EEOC had jurisdiction over her entire claim under Title VII. She argued that the separate procedure for adjudicating her gender identity claim was a "de facto dismissal" of that claim. The Agency responded that Macy's appeal was premature because her claim for discrimination on the basis of sex was being adjudicated under Title VII. Macy then withdrew her claim for discrimination based solely on sex, as the Agency had identified it, and informed the EEOC that she intended to pursue only her claim for discrimination on the basis of gender identity, change of sex, and/or transgendered status.

The Commission's Ruling

The EEOC accepted Macy's appeal and ruled that the EEOC had jurisdiction over her entire claim. The Commission rejected the Agency's argument that her claim of discrimination was actually two separate claims--one for discrimination "because of sex" under Title VII, and one for discrimination based separately on "gender identity stereotyping."Instead, the Commission established that "claims of discrimination based on transgender status, also referred to as claims of discrimination based on gender identity, are cognizable under Title VII's sex discrimination prohibition."

Explaining that Title VII prohibits any discrimination based on sex, the Commission clarified that the definition of sex includes both biological differences and gender, which includes "cultural and social aspects associated with masculinity and femininity." Relying on the Supreme Court's plurality in Price Waterhouse v. Hopkins, the Commission explained that "gender discrimination occurs any time an employer treats an employee differently for failing to conform to any gender-based expectations or norms."

The Commission recognized that several lower courts have used the sex-stereotyping theory when analyzing transgender discrimination under Title VII, but concluded that sex stereotyping is only "one means of demonstrating disparate treatment based on sex" in the context of transgender discrimination. The Commission instead held that discrimination based on transgender status, in and of itself, is discrimination "based on . . . sex" in violation of Title VII. The Commission explained that "[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 short, the Commission concluded 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."

Employers' Perspective

The Commission's ruling is a landmark decision. Federal employers are bound by the Commission and will now be found to have violated Title VII's prohibition on sex discrimination if they discriminate against transgender individuals. Although the Commission's ruling is only binding on federal employers, it represents a significant development in Title VII as it applies to employers and transgender individuals in the private sector. First, the EEOC will likely use the ruling when deciding charges of discrimination against private employers. Additionally, lower courts may adopt, or at least consider, the Commission's reasoning. The Commission's ruling, therefore, may result in an overall expansion of Title VII protection. Employers should be prepared for claims of discrimination relating to transgender status.

Employees' Perspective

Discrimination against transgender employees is widespread and has been condoned by many federal courts, which narrowly interpreted Title VII's proscription against sex discrimination as excluding such claims. With this ruling, the EEOC extends to transgender Americans the same protections that apply to all other employees.

Over thirty years ago, in Price Waterhouse v. Hopkins, the Supreme Court asserted that ''we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group, for in forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes." 490 U.S. 228, 251 (1989) (internal citations omitted). The EEOC's decision makes this statement a reality for the employees who have been most harmed by restrictive gender stereotypes.

In Macy v. Holder, the EEOC has followed a growing number of courts in the past few years which have applied a plain reading of Title VII, confirming that discrimination on the basis of gender identity is, indeed, discrimination on the basis of sex. While many courts, through contorted reasoning, excluded transgender employees from the protections of Title VII, the EEOC's ruling makes clear that gender identity discrimination is precisely the type of harm that the statute was intended to prohibit: adverse employment action based on employers' prejudices about gender norms. If the law prohibits discrimination against a woman for not presenting sufficiently feminine qualities, it certainly prohibits discrimination against a natural born woman who presents as a man. As the analysis makes clear, one need not harbor animus towards any particular religion in order to discriminate against a convert, yet such discrimination would clearly be on the basis of religion; so too, with sex. With this clear and compelling analysis, the EEOC has honored the promise of Title VII and taken its prohibition on sex discrimination to its logical conclusion.

This Hot Topic was prepared by the Equal Employment Opportunity Committee of the ABA Section of Labor & Employment Law with the assistance of Sandra Pullman who represents employees at Outten & Golden LLP in New York, NY and Anne-Marie Vercruysse Welch and Carly Osadetz who represent employers at Clark Hill PLC in Detroit, MI.


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