In another development in an emerging area of discrimination law, national retailer Saks Fifth Avenue (“Saks”), has moved to dismiss a lawsuit by a transgender former employee on the grounds that Title VII does not protect transgender people.

News broke in September when the Equal Employment Opportunity Commission (“EEOC”) sued two employers for discrimination against transgender employees. That was the first time in its history that the EEOC sued under such a theory. It appears to have opened the door to other claims by employees themselves.    

One such claim was recently filed by a former employee of national retailer, Saks Fifth Avenue, who alleges that she was fired because of her status as a transsexual (the plaintiff alleges that she has transitioned from a man to a woman). Saks has recently moved to dismiss and notwithstanding the EEOC’s position on the matter in other cases, has cited extensive case law supporting the proposition that Title VII simply does not protect transsexual people.

This case, captioned Leyth v. Saks & Company, Civil Action No. 14-CV-2782 (S.D. Tx), and the decision that will come out of Saks’ motion, lie at the fault line of an emerging area of law. There are several decisions supporting Saks’ position in the matter, but it is still an open question whether Title VII protects transgender and transsexual people.  Until Congress passes an amendment to the law to make it clearer, or the U.S. Supreme Court rules definitively one way or the other, employers will have to tread carefully when dealing with transsexual or transgender employees.