By: Cody Perkins

On April 20, 2012, the U.S. Equal Employment Opportunity Commission (EEOC) held that discrimination in employment based on gender identity is a form of sex discrimination under Title VII of the Civil Rights Act of 1964.  Title VII prohibits discrimination in employment, including hiring practices, termination, and promotion, based on “race, color, religion, sex, and national origin.”  In the past, federal agencies have been reluctant to recognize a person’s transgender status as protected by Title VII’s prohibition against sex discrimination, instead preferring to designate discrimination based on gender identity as a separate claim altogether.  Because most complaints of employment discrimination are handled by the relevant federal agency or department, this kind of separate claim for gender identity discrimination has been the norm; however, individuals may file appeals to the EEOC if they believe that that an agency has decided incorrectly or is interpreting the law incorrectly.  Such was the case in April, where the EEOC exercised its Title VII enforcement power to take the determination of whether gender identity is or is not sex discrimination out of individual agency control.  As a result of this decision, discrimination in employment based on gender identity is now illegal for all employers with 15 employees or more, just as it is illegal to refuse to hire someone for being a Muslim, for being French, or for being a woman under Title VII.  This decision, in adding “for being transgender” to that list, goes a long way in providing significant protections to a typically disadvantaged and discriminated-against community.

The case bringing about this important policy shift is Macy v. Holder, brought to the EEOC in November of 2011 by Mia Macy, a police detective from Phoenix.  While still presenting as a man, Ms. Macy had applied for and been given assurances that she would be hired for a position with the federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF).  After going through a significant number of steps in the hiring process and being told repeatedly that she would be hired, Ms. Macy disclosed to ATF that she was in the process of transitioning from male to female, and days later was informed that the position she had applied for was no longer available due to budget constraints.  Upon further investigation, Ms. Macy learned that the position had in fact been offered to someone else, and filed a formal EEO complaint with ATF, alleging discrimination in hiring based on sex.  When the agency failed to identify her claim as sex discrimination, instead creating a separate claim of “discrimination based on gender identity,” Ms. Macy appealed her case to the EEOC.

The EEOC’s treatment of this case is important, not only because it recognizes Ms. Macy’s particular situation as sex discrimination, but because it emphasizes that any discrimination based on “gender identity, change of sex, and/or transgender status” (Macy’s complaint) is entitled to the protections of Title VII, because that kind of discrimination inherently takes sex into account.  As the decision states, the characteristics protected under Title VII do not simply protect a woman from being fired for being a woman, for example, but also protect a woman for being fired because she does not conform to stereotypes of what a woman should be, or how she should look or act, because all of those things take her sex into account.  As demonstrated by past Title VII cases, such as Price Waterhouse v. Hopkins (discrimination based on failure to conform to gender stereotypes), Schwenk v. Hartford (discrimination based on gender identity), and Glenn v. Brumby (discrimination based on gender identity and gender presentation), any employment decision which takes an employee’s sex into account, whether in their gender expression, transgender status, biological sex or gender-stereotypical behavior (or the lack thereof), is inherently discrimination based on sex, and therefore covered by Title VII.

This decision in Macy, though not binding on the federal courts and therefore lacking the weight of a Supreme Court decision, is significant in that it gives legal recourse to all transgender people discriminated against in employment because of their transgender status when the discriminating employer has fifteen or more employees.  Previously, it was considered perfectly legal to discriminate against someone in hiring, firing and promotion solely on the basis of their transgender status; now, an employee who believes that they have been discriminated against for being transgender can file a complaint of sex discrimination under Title VII and receive all the benefits and protections of that Act.  This decision is also significant in that agency decisions such as Macy, although not binding on the courts, are often given considerable deference by judges, and so this decision is likely to give significant weight to any future arguments made in federal court that discrimination based on gender identity is sex discrimination.

However, Macy only goes so far.  Without a Supreme Court decision or action from Congress, this decision can easily be overturned in court or reversed by a new Commission under a new Administration.  In addition, the decision will only have a real impact if the Commission, as well as the individual agencies themselves, are diligent about enforcing this understanding of Title VII, as well as providing training and guidance to ensure that employers know about and understand the substance on consequences of this decision.  To ensure that these protections for the transgender community remain in place for the foreseeable future, a national Employment Nondiscrimination Act (ENDA) or Supreme Court decision will be necessary.