The Nineteenth Amendment and Gender Identity Discrimination

Although Oliver was ultimately able to vote, the barriers to voting for transgender people who do not have IDs that accurately reflect them are even greater—and they risk disenfranchisement—in states that strictly require an individual to provide a government-issued ID in order to cast a ballot. According to recent research by UCLA’s Williams Institute, 378,000 voting-eligible transgender adults do not have accurate ID documents, and nearly 105,000 of them face substantial barriers to voting and possible disenfranchisement in the 12 states with the strictest voter ID laws. Kathryn O’Neill & Jody L. Herman, Williams Inst., The Potential Impact of Voter Identification Laws On Transgender Voters in the 2020 General Election (2020); Jody L. Herman & Taylor N.T. Brown, Williams Inst., The Potential Impact of Voter Identification Laws on Transgender Voters in the 2018 General Election (Aug. 2018). Even in states without such firm rules, transgender voters can face obstacles like those confronted by Oliver—or worse. Recognizing this, California recently announced that it would train poll workers on best practices for interacting with voters whose gender identities or expressions do not match their names on voter rolls. Press Release, Secretary of State Alex Padilla Partners with Equality California Institute to Protect Voting Rights of Transgender Californians in 2020 (Oct. 25, 2019). Not having accurate identification can impede many interactions—in addition to voting—in which we are, sometimes very reasonably, asked to prove who we are: securing employment, housing, and credit; traveling by air or internationally; picking up certain prescriptions; paying with a credit card; getting stopped by law enforcement; and in many other vital or mundane situations.

For many transgender people, obtaining a driver’s license that accurately reflects their gender identity can be challenging because of confounding bureaucracy at the motor vehicle department or other government agencies that may be involved. Expense can also be a prohibitive barrier for the nearly one in three transgender adults who fall below the official poverty threshold and the many others who are poor. M. V. Lee Badgett et al., Williams Inst., LGBT Poverty in the United States (Oct. 2019). In addition, numerous states strictly require proof of gender-confirmation surgery (also known as sex-reassignment surgery), a court order, or an amended birth certificate before the sex marker on a driver’s license can be changed. Movement Advancement Project (MAP), Identity Document Laws and Policies. Some states will not update a birth certificate without proof of gender-confirmation surgery. Id. But not all transgender people desire such surgical intervention, can afford it if they desire it, or can readily access gender-affirming care where they live. And in a few states, birth certificates cannot be changed in any event.

Could the Nineteenth Amendment, which provides that “[t]he right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex,” provide a remedy against barriers to voting experienced by transgender people? The answer to that question depends, in part, on whether the Nineteenth Amendment is interpreted to protect against discrimination faced by transgender people qua transgender people. In other words, does discrimination “on account of sex” within the meaning of the Nineteenth Amendment encompass discrimination on account of one’s gender identity, status as a transgender person, or transition from one gender to another or no gender at all (collectively referred to as “gender identity discrimination” throughout this article)?

I am not aware of any court decisions or academic articles addressing this question. Yet, judges, lawyers, and scholars have long considered whether discrimination on the basis of someone’s gender identity is a form of sex discrimination under the Fourteenth Amendment of the U.S. Constitution (or state equivalents) as well as antidiscrimination statutes. This term, in fact, in R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission & Aimee Stephens, the U.S. Supreme Court will determine whether the proscription of employment discrimination on the basis of sex under Title VII of the 1964 Civil Rights Act protects a transgender worker who was fired for her gender identity and transition. If the Court holds that gender identity discrimination is a form of sex discrimination under Title VII, it would reflect an array of decisions under the Equal Protection Clause that discrimination against transgender people should be reviewed under heightened judicial scrutiny as a form of, or akin to, sex discrimination. Taken together, these decisions would support reading the Nineteenth Amendment to protect transgender voters.

Gender Identity

According to the American Psychological Association’s internal guidelines defining terms related to sexual orientation and gender diversity, “gender identity refers to one’s sense of oneself as male, female or something else. When one’s gender identity and [sex assigned at birth] are not congruent, the individual may identify along the transgender spectrum.” “Sex assigned at birth,” which is also sometimes referred to as “natal sex,” is typically the sex assigned to a baby at birth (or before) based on the appearance of external genitalia, and “[w]hen external genitalia are ambiguous[,] other indicators (e.g., internal genitalia, chromosomal and hormonal sex) are considered. . . .” Analysis of available representative data collected by state health departments in collaboration with the Centers for Disease Control and Prevention finds that 0.7 percent of U.S. adults identify as transgender. Younger adults and adolescents are more likely than older people to identify as transgender or other gender minority; they are also more likely to deviate from norms around gender. Existing estimates, though useful, probably understate the percentage of the population that is transgender because not all transgender people are willing to disclose that identity on a government survey and because not all people whose gender identity and natal sex are incongruent personally identify with the label “transgender.” (Instead, they may identify as male, female, or something else.)

Transgender people exist in all walks of life: scientists, artists, entrepreneurs, engineers, religious leaders, assembly workers, academics, law enforcement officers, librarians, lawyers. They are parents and they are people’s children and siblings. While many are highly accomplished and successful, a variety of research finds that transgender people face rampant discrimination in employment, housing, and other settings. For example, according to the largest survey of transgender people to date, nearly half (46 percent) of respondents reported being verbally harassed for being transgender in the previous year alone, and 30 percent of respondents who had a job in the previous year reported being fired, being denied a promotion, or experiencing some other form of mistreatment related to their gender identity or expression. Sandy E. James et al., Nat’l Ctr. for Transgender Equality, Report of the 2015 U.S. Transgender Survey (2016). Such reported experiences of discrimination reflect the findings of controlled experiments carefully designed to isolate the presence of discrimination against transgender people in real-world scenarios. For instance, a 2015 study of the Washington, D.C., service sector by the city’s Office of Human Rights, Qualified and Transgender, found that nearly half of the employers in the study appeared to prefer a résumé from a non-transgender person who was less qualified than the résumé from a transgender applicant, and a third of the employers offered to interview one or more non-transgender applicants over a more qualified transgender person. Similarly, a 2017 Urban Institute study, A Paired-Testing Pilot Study of Housing Discrimination Against Same-Sex Couples and Transgender Individuals, found that in Washington, D.C.’s housing market landlords told transgender homeseekers about fewer units, on average, than comparable non-transgender homeseekers.

Such studies, along with a variety of other evidence such as hate crimes data collected by law enforcement agencies and anti-violence organizations, have led researchers and courts to conclude that transgender people in the United States face persistent and pervasive stigma and prejudice on account of their gender identities and expressions. In 2017, for instance, the U.S. Court of Appeals for the Seventh Circuit observed in Whitaker v. Kenosha Unified School District that “[t]here is no denying that transgender individuals face discrimination, harassment, and violence because of their gender identity.” Losing a job, being evicted from a home, or being forced to leave school can plunge people into, or intensify, poverty or homelessness, and can cause one’s physical and mental health to deteriorate. Indeed, a Williams Institute analysis published in October 2019, Suicide Thoughts and Attempts Among Transgender Adults, found that transgender people experiencing discrimination or mistreatment at school, work, and elsewhere had a much higher prevalence of suicide thoughts and attempts than those who did not experience such discrimination and mistreatment. The negative effects of stigma and discrimination, moreover, may compound vulnerabilities related to other characteristics, such as race, ethnicity, geography, and immigration status.

On the other hand, we are beginning to learn much more about transgender people’s resilience in the face of adversity and their ability to thrive in supportive environments. In a study of transgender youth in Los Angeles, for example, parental support was significantly associated with a higher quality of life and protective against the symptoms of depression. Lisa Simons et al., Parental Support and Mental Health among Transgender Adolescents, 53 J. Adolescent Health (2013). A study published in the March 2016 issue of Pediatrics, “Mental Health of Transgender Children Who Are Supported in the Identities,” found transgender children who were supported in their gender identities by their parents and had socially transitioned—i.e., presented consistent with their gender identity and used associated gender pronouns and names—had similar levels of depression and only slightly elevated levels of anxiety compared with their non-transgender siblings, as well as compared with what would be typically expected among non-transgender children of the same age and gender.

Prohibitions Against Transgender Discrimination

Although discrimination against transgender people is all too common, only a minority of states and municipalities expressly prohibit employers, schools, businesses, creditors, and others from discriminating on the basis of gender identity. See MAP, Non-Discrimination Laws; MAP, Local Nondiscrimination Ordinances. In places such as Florida, Georgia, and Texas, it is perfectly legal under state law to fire a worker, evict someone from his or her home, or reject a person from a movie theater for being transgender. In these jurisdictions, the existence or absence of federal protections against gender identity discrimination is the difference between having a remedy against unlawful discrimination and not having one.

Federal protection against gender identity discrimination is a complicated and shifting patchwork that is context dependent. With respect to housing, for example, the Fair Housing Act does not expressly prohibit discrimination on the basis of gender identity, but a 2012 regulation of the U.S. Department of Housing and Urban Development generally prohibits such discrimination in programs the department conducts or assists. Equal Access to Housing in HUD Programs Regardless of Sexual Orientation or Gender Identity, 77 Fed. Reg. 5662 (Feb. 3, 2012). A 2016 rule requires certain homeless shelters to treat transgender people consistent with their gender identity (Equal Access in Accordance with an Individual’s Gender Identity in Community Planning and Development Programs, 81 Fed. Reg. 64,763 (Sept. 21, 2016)), but the department is now preparing to modify that rule.

With respect to employment, neither Title VII nor the Equal Pay Act expressly enumerates gender identity as a protected characteristic. Executive Order 11,246, as amended by President Obama in 2014, prohibits covered federal contractors from discriminating in employment on the basis of gender identity, covering about 22 percent of the U.S. workforce. Yet, in 2019, the Department of Labor proposed a regulation that would expand the religious exemption to Executive Order 11,246 and possibly limit the gender identity protections (among other bases). Implementing Legal Requirements Regarding the Equal Opportunity Clause’s Religious Exemption, 84 Fed. Reg. 41,677 (Aug. 15, 2019).

Like Title VII and the Fair Housing Act, most federal civil rights statutes do not expressly protect against gender identity discrimination, including in education, health care, public accommodations, credit, and federal funding. That is because Congress has long failed to enact legislation—such as the Equality Act of 2019—that would amend these statutes to make clear that discrimination on the basis of gender identity is unlawful. A majority of the public, for its part, favors such anti-discrimination protections. Daniel Greenberg et al., Public Religion Research Inst., Americans Show Broad Support for LGBT Nondiscrimination Protections (Mar. 12, 2019).

While gender identity is not specifically enumerated as a protected characteristic in most federal civil rights statutes, federal law does prohibit sex discrimination in employment, education, health care, credit, and other settings. (There are two notable exceptions: Titles II and VI of the 1964 Civil Rights Act, which cover public accommodations and federal funding, do not prohibit sex discrimination. The Equality Act of 2019 would amend those provisions to add sex protections to them.) And since the 1970s, courts, litigators, and academics have been grappling with whether federal laws against sex discrimination protect transgender people from gender identity discrimination—and the question under Title VII has now reached the Supreme Court.

Litigation at the Supreme Court

Aimee Stephens worked in the funeral industry for nearly 30 years. For six years until 2013, she worked at R.G. & G.R. Harris Funeral Homes as a licensed funeral director and embalmer. In 2009, Aimee, whose natal sex was male, began treatment with a therapist to address the despair she felt due to the discord between her sex assigned at birth and how she understood herself, which she had experienced since she was a child. After four years of treatment and with the support of her wife, Aimee informed her colleagues in a deeply personal letter that she is a transgender woman and that she intended to live and work full-time as a woman. Soon thereafter, the owner of the funeral home fired Aimee because, in the owner’s own words, Aimee “was no longer going to represent himself as a man.”

In October 2019, the Supreme Court heard argument in Aimee’s suit against her employer. Although gender identity is not expressly enumerated as a protected characteristic in Title VII (as noted above), the Court is poised to resolve a circuit split that boils down to whether or not gender identity discrimination is discrimination “because . . . of sex,” as required by the statute. “Sex” is not defined by Title VII and there is little legislative history about the term, though the parties agree that Congress was not contemplating transgender people when it enacted Title VII. The issue is not whether “sex” and “gender identity” are the same concepts; rather, the question is, when an employer discriminates against someone because of that person’s gender identity, has the employer impermissibly taken sex into account? Sex need only be a motivating factor of an employment decision, as opposed to the sole basis, to violate Title VII.

For many years starting in the 1970s, courts largely rejected transgender workers’ claims under Title VII, holding that sex discrimination was distinct from what the worker claimed and that Congress had not amended Title VII to protect against the latter. But these decisions were called into question by the Supreme Court’s landmark decisions in Price Waterhouse v. Hopkins (1989) and Oncale v. Offshore Sundowner Services (1998). In Price Waterhouse, a plurality of the Court concluded 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.” In Oncale, the Court unanimously held that Title VII prohibits male-on-male sex harassment even though Congress was not principally, if at all, concerned with such harassment when enacting Title VII:

[S]tatutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provision of our laws rather than the principal concerns of our legislators by which we are governed. Title VII prohibits “discriminat[ion] . . . because of . . . sex” in the “terms” or “conditions” of employment. Our holding that this includes sexual harassment must extend to sexual harassment of any kind that meets the statutory requirements.

Informed by Price Waterhouse and Oncale, federal courts over the past two decades have increasingly held that gender identity discrimination is prohibited by Title VII or similar statutes such as Title IX of the Education Amendments of 1972. In Glenn v. Brumby (2011), for example, the Eleventh Circuit U.S. Court of Appeals analyzed Price Waterhouse to hold that gender identity discrimination is a form of sex discrimination under the Constitution, reasoning that “[a] person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes.” Building on that reasoning, numerous courts and the U.S. Equal Employment Opportunity Commission have held that gender identity discrimination is per se sex discrimination because, in short, one cannot be understood or perceived as transgender without referencing one’s sex assigned at birth. Similarly, in Schroer v. Billington (2008), the U.S. District Court for the District of Columbia held that the Library of Congress violated Title VII when it withdrew an offer of employment after learning that the putative employee intended to transition gender. Courts have reasoned that such discrimination is akin to discrimination against someone for converting to a different religion, which would be impermissible religious discrimination. Summing up this body of law, the Sixth Circuit U.S. Court of Appeals held in Aimee Stephens’s case that “discrimination on the basis of transgender and transitioning status is necessarily discrimination on the basis of sex.”

On the other side of the split are only a handful of decisions that post-date Oncale and Price Waterhouse. The Tenth Circuit U.S. Court of Appeals, for example, in Etsitty v. Utah Transit Authority (2007) adhered to the view that Title VII prohibits discrimination only on the basis of natal sex—largely understood as disparate treatment between a man and woman—and that such discrimination is not what a transgender person suffers in facing discrimination for their gender identity or gender transition. Buttressing this argument, according to these courts, is the fact that Congress has long rejected legislation that would amend Title VII to make explicit that gender identity is a protected characteristic. The Supreme Court, however, has cautioned against reading too much into congressional inaction, because it can be understood in conflicting ways. Here, in the face of numerous decisions holding that Title VII prohibits gender identity discrimination, congressional failure to overturn those decisions also could be understood as acquiescing to or agreeing with them.

At the recent oral arguments before the Supreme Court in Aimee Stephens’s case, the justices explored the textual basis for holding that gender identity discrimination falls within Title VII, including whether such discrimination can be disentangled from stereotypes about how men and women should look and behave. Most of the justices seemed to recognize the strength of Stephens’s position but were keen to test, with counsel for each of the parties, what a ruling for Stephens would mean for sex-specific policies, such as different restrooms, dress codes, or sports teams for men and women. Chief Justice Roberts, for example, twice inquired how courts should analyze whether Title VII requires that transgender workers be able to use their workplace bathrooms consistent with their gender identity. When Stephens’s counsel, David Cole of the American Civil Liberties Union, responded that a decision for Stephens in this case would not determine the “bathroom issue,” Justice Sotomayor urged Cole to “not avoid the difficult issue.”

Cole explained that while sex-specific policies do not violate Title VII simply because they differentiate on the basis of sex, such a policy could violate Title VII if injurious to an individual: Requiring a cisgender man to use the men’s restroom would not violate Title VII, but requiring a transgender woman to use the men’s restroom may. Justice Gorsuch indicated that he viewed the textual evidence to be close and he questioned if the Court should take into account the “social upheaval” that could result from a decision for Stephens. Cole responded that decades of experience in places with gender identity protections suggest that no such upheaval would result and that, in any event, it would be improper for the Court to rely on such an assumption in a matter of statutory interpretation. Similarly, in response to the “parade of horribles” offered by the employer’s counsel, John Bursch, Justices Breyer and Sotomayor suggested bona fide occupational qualifications could be an adequate defense. Justice Breyer further countered Justice Gorsuch’s point by noting that the Court’s recent constitutional jurisprudence in favor of gay and lesbian people may counsel in favor of interpreting Title VII to cover gender identity discrimination. A decision is expected before the end of the current term in June 2020.


Constitutional Claims

While the Court’s resolution of the Stephens case will be specific to the context of interpreting Title VII, the basic question presented—whether gender identity discrimination is necessarily sex-based—has arisen under the Constitution, as well. In numerous cases, courts have been called upon to analyze equal protection claims by transgender people, such as claims by public school students to be treated consistent with their gender identities by their schools, state employees who object to anti-transgender harassment or other forms of discrimination, or individuals who assert mistreatment by law enforcement or corrections officials. The Supreme Court has yet to determine which level of judicial scrutiny should apply to state action that disadvantages transgender people because they are transgender.

Recently, lower courts have generally pursued one of two paths in determining such claims, though these paths are not mutually exclusive. In one set of cases, courts have held that transgender people are a suspect or quasi-suspect class and therefore are entitled to heightened judicial scrutiny. These cases have largely focused on the invidious discrimination experienced by transgender people and that being transgender in and of itself does not affect one’s ability to contribute to society, among the other criteria courts typically assess when determining the appropriate level of scrutiny. In another set of decisions, courts have concluded that gender identity discrimination rests on sex stereotypes and therefore should be analyzed under intermediate judicial scrutiny applicable to sex discrimination. In Whitaker v. Kenosha Unified School District, for example, the Seventh Circuit held that a school’s policy requiring students to use the restroom that corresponded to the sex on their birth certificate should be reviewed as a form of sex discrimination as applied to the transgender student.

How the Court resolves Stephens, then, could inform how courts approach constitutional claims by transgender people, including claims under both the Fourteenth and Nineteenth Amendments. When transgender people are obstructed in voting, the Nineteenth Amendment could possibly provide a remedy. And application of the Nineteenth Amendment to support the voting rights and equality more broadly of transgender people would build on the amendment’s roots in emancipating women—and men—from traditional gender and family roles, norms that are often used today to justify mistreatment of transgender people.