A proposed ordinance in Helena, Montana which would prohibit sexual orientation discrimination is being opposed by those who cite a recent EEOC decision which held that under Title VII discrimination against a transgendered individual is a form of sex discrimination. They argue that the proposed ordinance is unnecessary because this EEOC decision could be applied to cases of gender-based stereotypes and “also impact gender-based stereotyping claims filed by lesbian, gay and bisexual individuals.”

Said the Mayor, “If I’m understanding this right, the goals of the people who are advocating our city ordinance are going to be met, as long as this EEOC decision stands.”  

The EEOC decision cited in Helena was the subject of our April 25th blog, where we commented noted that transgendered individuals can now file charges of such discrimination with the EEOC. In that case, a transgendered woman was refused hiring after she disclosed her transgendered status. Although the EEOC did not pass upon the merits of her case, it nonetheless ruled that under the famous Supreme Court case of Price Waterhouse v. Hopkins where the Court held that sex discrimination under Title VII related to gender, as well as biological sex, “gender discrimination” included discrimination against transgendered people.

The opponents of the Helena bill fail to note that the EEOC decision has not as yet been reviewed or tested by any court, and, in any event, only applies to transgendered individuals, not to gender stereotypes or gender identiity.   As Helena City Commissioner Katherine Haque-Hausrath commented, “Plenty of lesbian and gay people conform to gender stereotypes. I don’t think we can necessarily hang our hat on that.”