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April 16, 2013 Articles

Gender Identity: Breaking Ground in Employment Law

Claims based on gender-identity discrimination are gaining traction.

By Evan Schlack

Courts and state legislatures throughout the country are demonstrating an increased willingness to recognize claims based on gender-identity discrimination. “Gender identity” is the term used to describe a person’s subjective sense of gender, which includes views held by but not limited to transgender, transsexual, and transvestite persons. While Congress has yet to extend protections against employment discrimination based on sex to include gender identity under Title VII of the Civil Rights Act of 1964, recent decisions of the federal Equal Employment Opportunity Commission (EEOC) and the U.S. Supreme Court indicate that they would likely support a legislative change to the definition of “sex” under Title VII to include gender identity.

Bringing a Claim for Employment Discrimination 
Generally, there are two theories upon which plaintiffs can bring claims for employment discrimination: disparate-treatment discrimination and disparate-impact discrimination. Disparate-treatment claims are brought by plaintiffs based upon specific acts of discrimination against an individual, whereas disparate-impact claims are brought to claim that, while a workplace policy may appear to be facially neutral, its effects in practice are discriminatoryagainst a group of people based upon their protected-class status; however, there are instances when plaintiffs may argue both. For instance, a plaintiff may claim that the failure to be hired was both a specific act targeted at the individual plaintiff as well as being part of a larger trend of discrimination against a particular group to which the plaintiff belongs.

As for the basis of a discrimination claim, Title VII of the Civil Rights Act of 1964 grants constitutional protection from employment discrimination to members of protected classes. 42 U.S.C. § 2000e-2(a)(1). The term "protected class" refers to characteristics that cannot be used to discriminate against a person or a group, such as race, religion, and sex. Traditionally, courts have declined to extend Title VII’s definition of "sex" beyond the traditional and plain meaning of gender that was assigned at birth. In Ulane v. Eastern Airlines Inc., the U.S. Court of Appeals for the Seventh Circuit found that Congress never intended Title VII to protect transsexuals, transvestites, or those with a sexual-identity disorder (notions collectively referred to as gender identity). 742 F.2d 1081, 1084 (7th Cir. 1984). Five years later, however, in Price Waterhouse v. Hopkins, the U.S. Supreme Court held that discrimination based on failing to adhere to a gender stereotype is prohibited under Title VII’s definition of “sex.” 490 U.S. 229 (1989). As in Ulane, the Supreme Court also looked to congressional intent of Title VII for protection from employment discrimination based on sex. Unlike the Seventh Circuit, the Court interpreted that when Congress prohibited discrimination based upon sex, it “intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.” Id. at 251.

Following the Court’s approach in Price Waterhouse, the EEOC held in Macy v. Holder that discrimination claims based on gender identity are cognizable under Title VII’s sex-discrimination prohibition. Appeal No. 0120120821 (EEOC, Apr. 20, 2012). Expounding upon the Price Waterhouse decision, the EEOC noted that because the Court stated “sex” and “gender” were interchangeable within Title VII, the statute’s protections “must include not just a person’s biological sex, but also the cultural and social aspects associated with masculinity and femininity.”

The impact of the EEOC's decision will vary according to court interpretation. If a court determines that Congress did not intend Title VII to extend protection to persons making gender-identity-based claims, then it may reject the EEOC's interpretation; however, if a court determines that Title VII is ambiguous or silent as to whether Congress intended protection, it will defer to the EEOC’s interpretation in MacySee Chevron v. Natural Resources Defense Council, 467 U.S. 837, 842 (1984). Even in cases where such deference is not required, the EEOC’s interpretation will likely hold persuasive power in state and federal courts.

State Gender-Identity Laws Provide Guidance 
Although the Supreme Court and EEOC have declined to define gender identity, state statutes prohibiting gender-identity-based discrimination can help determine a meaning of gender-identity discrimination. State laws, in fact, may serve as an important reference for courts and litigants alike. In California, the Fair Employment and Housing Act’s (FEHA) definition of sex includes, but is not limited to, “a person’s gender.” Cal. Gov. Code § 12926(q). FEHA further defines gender as an employee’s actual sex, an employer’s perception of the employee’s sex, and an employee’s “identity, appearance, or behavior, whether or not that identity, appearance, or behavior is different from that traditionally associated with the [employee’s] sex at birth.” Id. Similarly, New Jersey's Law Against Discrimination defines gender as referring to transgender persons or to those who feel their biological gender is a false or an incomplete description of who they are. NJ Rev. Stat. Sec. 10:5-5.Based on this definition, New Jersey’s law affords protection to persons who are transgender, transsexual, transvestite, and who appear androgynous.

While state definitions of “sex” and “gender” help to inform who may have standing to bring employment-discrimination claims, they generally do not set forth specific methods of proof for persons to show they fit within such definitions. In 2011, Massachusetts passed An Act Relative to Gender Identity. St.2011, c.199.  Among the gender-identity-discrimination laws, it is one of the most comprehensive as it provides guidance on how plaintiffs can demonstrate their gender identity in employment-discrimination cases. The statute provides:

Gender-related identity may be shown by providing evidence including, but not limited to, medical history, care or treatment of the gender-related identity, consistent and uniform assertion of the gender-related identity or any other evidence that the gender-related identity is sincerely held, as part of a person's core identity; provided, however, gender-related identity shall not be asserted for any improper purpose.

St.2011, c.199.

Although the list is not all-inclusive, it endeavors to protect a wide range of plaintiffs, from those who have undergone gender-reassignment surgery to those who express their identity through different types of apparel. As it appears a broad range of plaintiffs could succeed in filing a gender-identity-discrimination claim under Massachusetts’s statutory definition, it seems likely the law will achieve its desired result of protecting persons from discrimination based on gender identity.

Where Can Claims Be Filed?
Currently, there are 16 states (California, Colorado, Connecticut, Hawaii, Iowa, Illinois, Massachusetts, Maine, Minnesota, New Jersey, New Mexico, Nevada, Oregon, Rhode Island, Vermont, and Washington) and the District of Columbia that have laws prohibiting employment discrimination based on gender identity. Before filing a claim under one of these state laws, a plaintiff should verify that the employer meets the state’s coverage requirement. For example, Massachusetts’s Act Relative to Gender Identity applies to employers with a minimum of six employees, while in Connecticut the number is three. If a state does not have a statute protecting employees from gender-identity discrimination, claims may still be filed through the EEOC as its decision in Macy v. Holder is binding upon each of the commission’s 53 district offices. The EEOC has no minimum employee requirement for the federal government and employment agencies; however, to file a claim against a business/private employer or a state/local government, the EEOC will only enforce its rules if employers have 15 or more employees. With the EEOC’s recent change in Title VII’s interpretation of sex discrimination to include gender identity, employers covered by Title VII may see an increase in gender-identity discrimination claims if their practices fail to conform to the Macy decision.

What Does the Future Hold?
Even though Congress has not amended Title VII to include protections against employment discrimination based on gender identity, the EEOC and the U.S. Supreme Court have indicated in recent decisions that they would likely support such a legislative change to the law. In the meantime, state legislatures and courts throughout the country have increasingly expressed a disposition toward recognizing and prohibiting employment discrimination based on gender identity. This acknowledgment is increasing exponentially, from three states during the 10 years spanning from 1993 to 2003 to 13 states and the District of Columbia in the 10 years since. Consequently, employees in states that do not prohibit employment discrimination based upon gender identity should feel optimistic as it seems likely that the trend of recognition will continue.

Evan Schlack is a 1L at Arizona State University's Sandra Day O'Connor College of Law.