On April 20, 2012, the U.S. Equal Employment Opportunity Commission (“EEOC”) adopted the position that employment discrimination against transgender individuals because of their transgender status constitutes sex discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”). Transgender people are generally those who feel that the gender to which they were born does not fit them. Transgender people include people born female who identify and present themselves as male and people born male who identify and present themselves as female. Transgender people also include individuals who do not identify as either sex. A transgender person may or may not have undergone any type of surgical procedure or hormone therapy to change his or her physical appearance.
The EEOC’s Decision
The EEOC’s April 20, 2012 announcement came by way of a decision relating to a charge of discrimination filed by Mia Macy against a federal agency. Ms. Macy, a transgender woman, alleged that she expressed interest in a position with the Bureau of Alcohol, Tobacco, Firearms and Explosives (the “Agency”). She further alleged that at the time of her initial expression of interest, she was still known as and presenting herself as a male. Ms. Macy alleged that she interviewed for the position by telephone while still presenting as a male. Following the telephone interview, Ms. Macy was allegedly promised the position contingent on a satisfactory background check. Ms. Macy claimed that she later revealed to the Agency that she was in the process of transitioning from male to female. Shortly thereafter, she was allegedly notified that the position she sought was no longer available. Ms. Macy claimed that she learned that someone had in fact been hired for the position, and she then filed a charge of discrimination with the Agency. (In connection with federal employment, discrimination charges under Title VII are filed directly with the employing federal agency, and that agency’s action on the charge can then be appealed to the EEOC, as happened here.) Ms. Macy indicated in the charge that she was discriminated against because of sex and also because of “gender identify” and “sex stereotyping.” Ms. Macy further alleged to the Agency that she was discriminated against because of her transition from male to female. The Agency rejected Ms. Macy’s claim of discrimination based on gender identity stereotyping, asserting that such a claim cannot be adjudicated under Title VII. Ms. Macy appealed the Agency’s decision to the EEOC.
On appeal, the EEOC clarified “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.” Title VII prohibits discrimination in employment “because of . . . sex.” The EEOC explained that courts have long recognized that Title VII prohibits gender stereotyping, the act of discriminating against someone because he or she does not conform to cultural and social aspects associated with his or her biological sex. The EEOC found that discriminating against a person because he or she is transgender is discriminating against that person because of his or her sex. The EEOC noted that Ms. Macy could establish a case of discrimination in at least two ways, either by proving that she did not get the position sought because the employer believed that biological men should present as men and wear male clothing or by proving that she did not get the position because her employer did not want a woman in the position. The EEOC observed that both fact patterns would be discrimination based on Ms. Macy’s sex in violation of Title VII.
The EEOC’s decision marks the first time that the EEOC has officially articulated the position that discrimination based on transgender status or gender identity is sex discrimination under Title VII. Although a number of states and municipalities have laws prohibiting employment discrimination based on transgender status, gender identity, or gender expression, the EEOC’s stated position is nationwide in scope and makes clear that the EEOC’s local offices should consider claims alleging discrimination based on transgender status as discrimination because of the person’s sex and process them accordingly. The EEOC’s decision on transgender status is not binding on courts considering Title VII claims, but because courts often defer to the EEOC’s interpretation of Title VII, the decision is likely to have a far-reaching effect.
Under Title VII, an employer may lawfully discriminate on the basis of sex only when gender is a bona-fide occupational qualification. The EEOC made clear that this defense is extremely narrow and that an employer’s discomfort with the fact that a person is transgendered, or the perception of the same discomfort on the part of the employer’s customers or employees, will not be a defense to liability for sex discrimination based on transgender status. Although there are no reliable statistics regarding the number of transgender persons in the United States, it is likely that many employers will encounter employment issues concerning transgender individuals in the future. Therefore, employers should consider addressing discrimination because of transgender status in their personnel policies and training.