Court: Title VII Prohibits Discrimination Against Transgender People, Not Gays and Lesbians

Earlier this week, AP reported that “in a setback for gay rights advocates hoping for an expansion of workplace discrimination protections,” a three-judge panel of the 11th U.S. Circuit Court of Appeals in Atlanta ruled 2-1 that Title VII of the Civil Rights Act, which prohibits workplace discrimination based on a variety of factors including sex, doesn’t protect against workplace discrimination based on sexual orientation.

In 2011, the 11th Circuit ruled that discrimination against a transgender employee did amount to unlawful sex discrimination under Title VII because the individual faced discrimination based on her behavior not conforming to gender stereotypes. In its new ruling, the court clarified that discrimination against an individual who is undergoing a gender transition is based on behavior while discrimination against an employer for being gay or lesbian is based on “status.”

The 11th Circuit ruling follows a decision in which a three-judge panel of the 7th Circuit in Chicago last July upheld a lower court’s dismissal of a similar case trying to extend Title VII to include sexual orientation.

LGBT rights groups had hoped these rulings would go their way and “would mark a significant step forward for gay rights,” the AP reported. And indeed, if the courts had extended Title VII to include sexual orientation it would have avoided the need to pass federal legislation like the overly broad Equality Act, which seeks to amend Title VII to prohibit discrimination based on sexual orientation and gender identity while decreeing that existing Title VII exemptions based on religious belief may not be used as a defense in suits charging anti-LGBT discrimination.

“Sex discrimination” under Title VII was clearly meant to apply to discrimination based on physical sex, so it seems to makes some sense that it could apply to transgender men and women facing discrimination but not to gay men and lesbians. There is only so far you can stretch an existing statute to try to make it do something it was never meant to do (although that doesn’t stop progressives from trying). However, it does mean that transgender people have far more legal protections under federal law than do gay, lesbian and bisexual people.

We were told we couldn’t pass the Employee Non-Discrimination Act (ENDA) with only sexual orientation (which had the votes in Congress) and not gender identity (which did not), and so ENDA fell by the wayside. The Equality Act is a fundraising ploy that has no chance of passing in a Republican congress, and would face opposition from some African-American legislators who don’t want to meddle with the Civil Rights Act if the Democrats again take power.

But I don’t see transgender activists saying they won’t accept their court-provided protections under Title VII because they also don’t extend to LGB folks.

More. From the comments, “Will” writes:

Seems to me if you face discrimination because you’re a man who has sex with men (or desires to), and being sexual with a man is something that is stereotypically female behavior, then why wouldn’t that be discrimination against a gay man for “behavior not conforming to gender stereotypes” as prohibited under Title VII?

And

Once the courts expanded Title VII to include “gender nonstereotypical behavior”—which was quite a stretch of the statute, and arguably without foundation—I don’t know how they can find that Title VII protections cover trans people but not gays/lesbians.

On reflection, those do seem like good points. Having stretched Title VII so far beyond its original intent, to then say it can be stretched no further seems arbitrary.

15 Comments for “Court: Title VII Prohibits Discrimination Against Transgender People, Not Gays and Lesbians”

  1. posted by Will on

    Seems to me if you face discrimination because you’re a man who has sex with men (or desires to), and being sexual with a man is something that is stereotypically female behavior, then why wouldn’t that be discrimination against a gay man for “behavior not conforming to gender stereotypes” as prohibited under Title VII?

    For some reason, the 11th Circuit just seemed to be more comfortable extending Title VII to transmen and transwomen, but not to gays and lesbians.

    Also, decision on transgender discrimination only applies in the 11th Circuit, so still a need for federal legislation, unless all circuits follow along.

    Reply
    • posted by TJ on

      Sometimes sex discrimination has been defined to also cover real or perceived sexual orientation. It has merit, but rarely gets much use in courts within the U.S.

      In the early 1970s some liberal Congressmen and women backed a bill to add sexual orientation to federal civil rights code.

      The bill went nowhere. Only a few liberals supported the bill.

      Any support meant being ruthlessly attacked by the Moral Majority, which was steadily becoming a useful tool for the right-wing faction within the Republican party.

      In the 1980s, President Reagan and Bush had no interest in the “gay rights bill” and about the only thing that happended was some Congressional hearings.

      This is why ENDA was proposed. It only dealt with civilian employment law and even that was a hard sell. It was a modest, 1990s, response to the previous problems facing a comprehensive bill.

      Again. Even this bill failed to pass. The Moral Majority is well financed and well organized and only a relatively few federal politicans will go against them.

      The Human Rights Campaign has never had the money or clout as the Christian Coalition.

      Reply
    • posted by JohnInCA on

      Only applies to the 11th *for now*. Decisions like these are almost all appealed to the SCOTUS. And even if the SCOTUS initially declines, there will probably be a circuit split forcing them to take it.

      Reply
    • posted by TJ on

      The homocon argument here (repeated often) is “the law already protects trans folk, so we can safely toss them under the bus.”

      The truth is that the case law on whether “sex” covers gender identity or sexual orientation is largely uneven in America.

      The Trump White House doesn’t seem to think so. Federal courts have rarely said yes.

      When Congress was crafting the Americans With Disabilities Act, it specfically excluded trans folk – at the time classifed as a disorder – and has had little interedt in civil rights for transgender folk now.

      Reply
  2. posted by Jorge on

    Circuit Judge William Pryor, who was a party to that opinion, argued in a concurring opinion that the transgender case, which involved a legislative aide who was fired after telling her boss she planned to undergo a gender transition, was based on behavior rather than status.

    Hey! Homosexuality isn’t a status effect! This is ex-gay therapy all over again.

    (To be very clear, that is an extremely sarcastic joke.)

    For some reason, the 11th Circuit just seemed to be more comfortable extending Title VII to transmen and transwomen, but not to gays and lesbians.

    Is transmen/women considered neutral in tone?

    There’s been a couple of things going on with transgender activism that basically amounts to a movement to classify transgender people primarily on a gender scale and not on a mental health scale. There’s been a backlash to that idea recently just as it has come to have legal consequences. The 2011 court made a decision that was in vogue at the time. Now, even the Trump administration has signaled its skepticism of that interpretation of the Civil Rights Act–and for the record I think the American people are wagging the dog on that one. The 11th Circuit might not have made the same decision today.

    However, it does mean that transgender people have far more legal protections under federal law than do gay, lesbian and bisexual people.

    I’m not sure I would agree with that.

    Moreover, if the country rejects the belief that transgender is simply a deviation from gender norms, and believes it is simply a deviation from biology, a transgender identity becomes a disability rather than a protected sex class. This view will creep into the courts.

    And even this court said gender reassignment surgery is a behavior. Presenting oneself in spartan attire and hair is a behavior. The 1998 Oncale v. Sundowner Offshore Services decision recognized an environment of anti-gay workplace harassment (even though everyone involved was heterosexual) as sex discrimination; that turned on behavior and expected behavior.

    I’m not sure we have reached the point where the label and meaning of “transgender”, per se, has become a protected class federally in the same way that “woman” or even “man” has.

    Reply
    • posted by Jorge on

      See, when I go to work wearing colorful and borderline gaudy bangles on my wrists, the “OMG that’s so gay!” aspect is activating sex discrimination protections more than sexual-orientation discrimination protections.

      Reply
      • posted by JohnInCA on

        If it’s a status, does lesser restoration clear it up, or do I need to use greater restoration?

        *Ahem* So here’s the question of “behavior vs status”, when an auto mechanic refuses a gay customer, is that because of behavior or status? When a baker will make cookies for a gay customer, but not cookies for the reception of a gay wedding?

        This legal hair-splitting may be beyond me, but it sure *seems* it would explicitly reject the “just refusing gay weddings, fine with gay customers” logic, while allowing non-tortured justifications of discrimination.

        So you could fire a gay person for being gay, but not for getting married or “acting gay”.

        Legal logic gets weird.

        Reply
        • posted by Jorge on

          If it’s a status, does lesser restoration clear it up, or do I need to use greater restoration?

          Trying to pray away the gay, huh? That doesn’t work on Charm. The only reliable cures are physical damage and incapacitation.

          I was not originally going to be this dark.

          Reply
  3. posted by Houndentenor on

    I guess trans rights is the new homocon distraction? Meanwhile Texas is in the process of passing a “bathroom bill”. So it’s not like trans people have it all that good except for a few successful cases in which they argued that anti-trans discrimination is sex discrimination, because it is. If only we had elected representatives that would pass a gay-inclusive rights bill but we don’t. We have a Republican majority. Is Stephen arguing for elected Democrats to Congress in 2018? No. He’s just trans-bashing as a way of distracting from what a shit show the Republican majority is.

    Reply
    • posted by Jorge on

      Chelsea Manning won the ability to transition in prison, the fact that’s she’s a treasonous pieces of **** be damned, because one day years from now she might be given mercy and released into the community. It’s enough to treat our prisoners decently. The rest should come later.

      Reply
  4. posted by Will on

    Once the courts expanded Title VII to include “gender nonstereotypical behavior” — which was quite a stretch of the statute, and arguably without foundation — I don’t know how they can find that Title VII protections cover trans people but not gays/lesbians. At this point, maybe it’s all the judges personal biases.

    Reply
  5. posted by Tom Scharbach on

    Only applies to the 11th *for now*. Decisions like these are almost all appealed to the SCOTUS. And even if the SCOTUS initially declines, there will probably be a circuit split forcing them to take it.

    The legal issues regarding transsexuals are just beginning to be litigated, and it is going to take a number of years for the courts to establish the legal/constitutional boundaries involving legal equality for transsexuals.

    The issues regarding transsexuals are numerous, and we can count on state legislatures to throw roadblocks, which will add to and compound the existing issues. As John notes, SCOTUS is going to be forced to establish national legal/constitutional boundaries eventually, but it is going to take a long time before the boundaries are defined. That’s the way the court systems work — case by case, step by step, little by slowly.

    We shouldn’t forget that the modern legal struggle for equal treatment under the law for gays and lesbians began in the 1950’s (One, Inc. v. Olesen, SCOTUS 1958, involving censorship of a gay magazine) and it took almost 60 years to get from that decision to Obergefell, with many more cases to come over the next decade before the question of whether or not gays and lesbians are entitled to equal treatment under the law is finally settled.

    My guess is that the distinction drawn by the 11th Circuit will not stand in the long run — it really doesn’t make a lot of sense, as others have pointed out — but, as was the case with sodomy and marriage laws as applied to gays and lesbians, transsexuals are going to endure a long period of legal struggle and inconsistent treatment under state and federal laws before the issues are sorted out. I hope that the struggle will be easier and less lengthy for transsexuals than it was for gays and lesbians.

    Reply
  6. posted by TJ on

    I am somewhat surprised that the high profile sex change operation in the 1950s didn’t produce more litigation.

    Reply
    • posted by Tom Scharbach on

      Sex reassignment surgery spawned almost no litigation until 10-15 years ago, when state-level cases emerged around the country holding that (a) transgendered men and women were protected under various disability and non-discrimination acts, and (b) government authorities could not arbitrarily throw monkey wrenches into transgender identity processes (e.g. requirement for a “doctors note” before Paul Doe could get a name change to Paula Doe). A handful of parental rights cases came up during the same period, and I’m aware of one case involving marriage (Littleton v. Prange, 1999, Texas, negating a transgender women’s marriage because she was born maile).

      But by and large, there hasn’t been a lot of litigation surrounding transgendered men and women. I suspect that’s because most transgender controversies have been relatively straightforward gender non-discrimination cases to date.

      The 1989 decision in Price Waterhouse (which involved sexual stereotyping rather than transgender issues) seems to have provided solid ground for lower federal courts to hold (not universally by any means) that transgendered men and women are protected by the Civil Rights Act of 1964 and other non-discrimination laws including gender as a class. State courts seem to have followed suit in most, but by no means all, state cases.

      I think that litigation will increase in future years as transgendered men and women are targeted for discrimination by politicians pandering to conservative Christians. Laws targeting specific classes for special discrimination almost always spawn lawsuits testing legal/constitutional limits, and I think that litigation will increase in future years as transgendered men and women are targeted for discrimination by politicians pandering to conservative Christians.

      I hope I’m wrong about that, but I don’t think so. Conservative Christians seem to have an inborn need to spew “Christian Love” all over some group that offends their cultural sensibilities, and transgendered men and women seem to be the emerging recipient.

      Reply
  7. posted by TJ on

    Again. The Trump Administration doesn’t seem to want to protect Transsexuals from discrimination and Congress aint likely to do so anytime soon.

    The USSC will probably wait awhile before wading into the legal issues.

    Federal and State courts will thus reach different conclusions.

    Reply

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