Several circuit courts — including, most recently, the Second Circuit in Zarda v. Altitude Express, Inc. — have decided whether sexual orientation and transgender status are protected characteristics under Title VII (we discussed one of those decisions here). Courts in our neck of the woods, however, have offered little guidance in this area so far. Although the Fifth Circuit (covering Texas, Louisiana, and Mississippi) has yet to weigh in on these issues, a Texas federal court recently issued the first decision in the state indicating that sexual orientation may be protected (Title VII’s applicability to transgender status has been considered by at least one Texas court to date).
In Wittmer v. Phillips 66 Co., No. H-17-2188, 2018 WL 1626366 (S.D. Tex. Apr. 4, 2018), Chief Judge Rosenthal of the Southern District of Texas indicated that both transgender and homosexual employees may be protected from discrimination under Title VII. Citing earlier circuit court decisions and noting that no controlling precedent existed in the Fifth Circuit, Chief Judge Rosenthal noted that recent precedent from other circuits “consistently recognize[s] transgender status and orientation as protected classes under Title VII, applying the long-recognized protections against gender- or sex-based stereotyping.”
Despite its relatively sweeping language indicating that Title VII likely protected a person’s transgender status, the decision did not turn on this conclusion. The court in Wittmer, for the purposes of the opinion, assumed that protection existed without directly deciding the issue. This is because the court ultimately granted summary judgment for the defendant by concluding the plaintiff had not made out a prima facie case and failed to rebut the employer’s legitimate, nondiscriminatory reason for termination.
Because the decision rests on an assumption of protection rather than a direct holding, if an appeal to the Fifth Circuit is made, it will not likely result in binding precedent from that court on the matter. Instead, the circuit court may do the same thing as Chief Judge Rosenthal — assume Title VII applies without deciding the issue. Despite the non-binding nature of the findings in this case, however, the discussion remains important. It is the first of its kind in Texas, and signals a potential shifting of the winds. If this case is appealed, the Fifth Circuit may be inclined to offer their own non-binding statements on this issue, which district courts would be likely to follow. Further, other cases in Texas, Louisiana, and Mississippi where this issue comes up will need to contend with the analysis presented by Chief Judge Rosenthal’s opinion in Wittmer, and any case that does so will add to the growing body of law on whether transgender status or sexual orientation are protected under Title VII.