We recently addressed a growing trend among federal appellate courts to recognize as cognizable claims of sexual orientation discrimination under Title VII of the Civil Rights Act of 1964 (Title VII). This alert addresses whether federal appellate courts also will conclude that gender identity or transgendered status is a protected subset of sex discrimination under Title VII, as well as under Title IX of the Education Amendments of 1972 (Title IX). Federal agencies remain split on the issue of protection against gender identity “sex” discrimination, while many states and localities deem both sexual orientation and gender identity discrimination prohibited in workplace and educational settings.
Sexual orientation refers to someone’s enduring pattern of emotional, romantic and/or sexual attraction to men, women or both sexes. American Psychological Association Dictionary of Psychology (2d ed. 2015). Gender identity is a person’s self-identification as male, female or alternative-gender that may or may not conform to that person’s assigned sex at birth or their primary or secondary sexual characteristics. Id. In the Second Circuit’s recent en banc decision, Zarda v Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018), the plurality overruled its prior precedent and held sexual orientation discrimination constitutes a form of “sex” discrimination under Title VII. However, the court’s decision did not state whether Title VII prohibited discrimination based on “gender identity.” The court assumed “arguendo” that the term “sex” in Title VII was binary— meaning “biologically male or female”—and that the terms “sex” and “gender” were interchangeable. Id. at 107, n.2. There was no discussion in the plurality opinion of the distinction between “sexual orientation” and “gender identity,” and whether discrimination on the basis of the latter characteristic constituted “sex” discrimination under Title VII. Id. And, the dissenting opinion expressly noted the limited nature of the plurality decision stating that “[i]ssues about how to define who falls into which gender, or whether the division of humanity into two sexes or genders is oversimplified as applied to persons who identify as transgender or gender fluid or bigendered are not before us today…” Id. at 145, n.9.
The reasoning in the Zarda plurality opinion could easily extend to support gender identity discrimination claims under Title VII, if such discrimination is viewed as based on non-conformity with gender stereotypes in violation of the Supreme Court’s decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (see e.g., Zarda, 883 F.3d at 112, reading Title VII to prohibit sexual orientation discrimination accords with the prohibition against sex stereotyping “because sexual orientation discrimination is predicated on assumptions about how persons of a certain sex can or should be, which is an impermissible basis for adverse employment actions”). Following Price Waterhouse, every federal appellate court to pass on the issue (the First, Second, Third, Seventh and Ninth) has recognized that gender stereotyping actions are cognizable under Title VII, and several other circuit courts of appeals (the First, Sixth, Ninth and Eleventh) have concluded that claims of discrimination based on transgender status is per se sex discrimination under Title VII or other federal laws—such as the Equal Credit Opportunity Act, Gender Motivated Violence Act and the equal protection clause of the United States Constitution. See M.A.B. v. Bd. Of Educ. Of Talbot County, et al., 2018 WL 1257097, at *6 (D. Md. Mar. 12, 2018) (citing circuit cases). As one district court has observed, “discrimination on the basis of transgender status constitutes gender stereotyping because by definition, transgender persons do not conform to gender stereotypes.” Id. (internal quotations and citation omitted).
The Seventh, Eighth and Tenth circuits arguably have held that transgender status alone does not trigger Title VII protection, see id. at *15, n.7; but it is unclear whether these courts would maintain this stance in light of the recent jurisprudence expanding Title VII’s scope to cover sexual orientation discrimination. For its part, the Seventh Circuit’s en banc decision in Hively v. Ivy Tech Community College, 853 F.3d 339 (7th Cir. 2017)—while addressing Title VII’s reach to sexual orientation discrimination—left little doubt the court would also find gender identity-based discrimination impermissible under Title VII. In vacating the panel decision, the Hively court stated, “[o]ur panel described the line between a gender nonconformity claim and one based on sexual orientation as gossamer-thin; we conclude that it does not exist at all.” Id. at 346. The court also reasoned that the “discriminatory behavior [at issue in the case] does not exist without taking the victim’s biological sex (either as observed at birth or as modified in the case of transsexuals) into account. Any discomfort, disapproval or job decision based on the fact that the complainant—woman or man—dresses differently, speaks differently, or dates or marries a same-sex partner is a reaction purely and simply based on sex. That means that it falls within Title VII’s prohibition against sex discrimination, if it affects employment in one of the specified ways.” Id. at 347. Based on this language, it seems likely that the Seventh Circuit would now conclude that discrimination on the basis of “gender identity” is prohibited under Title VII. Indeed, in Whitaker by Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. Of Ed., 858 F.3d 1034 (7th Cir. 2017), decided shortly after Hively, the Seventh Circuit expressly recognized a cognizable claim of discrimination under Title IX based on a student’s transgender status.
Court rulings concerning Title VII’s application in cases of alleged gender identity discrimination will, in turn, affect how courts view similar Title IX claims given the parity with which courts typically interpret “sex discrimination” under both federal laws. This is demonstrated, as mentioned, by Whitaker by Whitaker and M.A.B. v. Bd. Of Educ. Of Talbot County, supra—, where the courts recognized a claim of sex discrimination under Title IX based on the student’s transgender status in large part by relying on caselaw interpreting Title VII.
Courts deciding the cognizability of gender identity sex discrimination claims are faced with a divided interpretation of Titles VII and IX by the federal agencies charged with implementation of these federal laws. The Equal Employment Opportunity Commission recognizes Title VII discrimination claims based on gender identity while the Department of Justice (DOJ) currently takes the position that “Title VII does not prohibit discrimination on the basis of gender identity per se.” October 4, 2017, Attorney General Memorandum-Revised Treatment of Transgender Employment Discrimination Claims Under Title VII of the Civil Rights Act of 1964 (“Title VII’s prohibition on sex discrimination encompasses discrimination between men and women but does not encompass discrimination based on gender identity per se, including transgender status.”). As to Title IX, in February 2017, both the DOJ and the Department of Education (USDOE) issued a “Dear Colleague” letter withdrawing the May 13, 2016, Obama administration guidance from both agencies that had interpreted Title IX to bar discrimination on the basis of a student’s gender identity and had advised that “a student’s gender identity [be treated] as the student’s sex for purposes of Title IX and its implementing regulations.” In February 2018, the USDOE announced it will no longer investigate or take action on complaints from transgender students regarding the open use of restrooms in public schools, as “Title IX prohibits discrimination on the basis of sex, not gender identity.”
Irrespective of where courts or the federal government come down on the issue of gender identity discrimination claims under Titles VII and IX; schools should be aware that twenty states, the District of Columbia and many local jurisdictions prohibit workplace discrimination on the basis of both sexual orientation and gender identity. In addition, most state public accommodations laws prohibit discrimination based on sex, and many such laws—which extend to public schools and other educational institutions—expressly prohibit discrimination based on both sexual orientation and gender identity (in 17 states and DC). Some campus sexual assault laws also specifically protect against bias on both grounds. See e.g. N.Y. Educ. Law, Art. 129-B § 6440(5) (campus sexual assault protections apply “regardless of … sex, gender identity or expression, [or] sexual orientation…”) and § 6441(1) (definition of “affirmative consent” provides that “consent does not vary based upon a participant's sex, sexual orientation, gender identity or gender expression”). Finally, the city or county within which a school is located may explicitly forbid gender identity discrimination. Thus, in addition to federal law, it is important to know the state and local requirements on issues of gender equality.
In sum, the growing body of caselaw suggests that many courts would recognize a claim of discrimination based on a person’s gender identity as a form of sex discrimination under Titles VII and IX. While federal agencies have provided mixed guidance on this issue, courts have recently afforded less deference to these policies, relying more on judicial precedent that has increasingly recognized such claims. Given this trend, as well as the related state and federal laws that prohibit discrimination on the basis of gender identity, colleges, universities and employers should expect the possibility that these anti-discrimination claims will be recognized. We will continue to monitor court decisions and agency determinations for developments on these issues.
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