Earlier this year, the Equal Employment Opportunity Commission persuaded the Sixth Circuit Court of Appeals that a funeral home’s termination of a transgender employee violated Title VII’s prohibition against sex discrimination. In EEOC v. R.G & G.R. Harris Funeral Homes, Inc., the Sixth Circuit agreed that transgender status falls under Title VII’s protections because (1) the Supreme Court’s Price Waterhouse decision says gender stereotyping is a form of sex discrimination and (2) gender identity is intrinsically tied to sex.
The employer has appealed this decision to the U.S. Supreme Court. Last month, the U.S. Department of Justice, which handles Supreme Court appeals for the EEOC, filed a brief supporting the appealing employer and asking the court to reverse the agency’s previous position on transgender protections. In its brief, DOJ takes a narrow view of sex under Title VII, limiting it to the physiological distinction between men and women. DOJ argued that Price Waterhouse does not apply to transgender people because the funeral home was not accused of treating men and women differently.
The Supreme Court has not yet ruled on the appeal request. In addition to DOJ arguing against the EEOC’s position, The New York Times recently published an article describing a regulatory proposal under consideration that would change U.S. Department of Health and Human Services rules on sex discrimination to exclude gender identity by limiting the definition of sex to biological sex.
These developments indicate the Trump administration’s intent to curb protections for transgender people under federal law. For now, employers should exercise caution, as the majority of federal courts to consider this issue have found gender identity to be a protected classification using at least one of the Sixth Circuit’s rationales. In addition, a number of states protect gender identity through employment and public accommodations laws.