Legal protections against discrimination based on gender identity and expression have made some progress in recent years, but they have also seen some highly publicized setbacks. Some state and local anti-discrimination statutes include gender identity and expression as protected categories, but no federal statute specifically mentions them. The Fourth Circuit Court of Appeals, however, recently ruled that a federal prohibition on sex discrimination includes gender identity. G.G. v. Gloucester Cty. Sch. Bd., et al, No. 15-2056, slip op. (4th Cir., Apr. 19, 2016). The case involved Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq., rather than the federal employment discrimination statute, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Title IX has many important parallels to Title VII, however, and developments in the interpretation of one could affect interpretations of the other.
The term “gender identity” refers to the gender with which a person identifies, regardless of whether it is the gender assigned to them at birth. “Gender expression” refers to the manner in which a person outwardly expresses their gender identity. They collectively form the “T,” for “transgender,” in “LGBT,” but these terms are not synonymous with sexual orientation. The “L,” “G,” and “B” generally refer to a person’s preference in a romantic or sexual partner, not their identity.
Anti-discrimination laws that cover gender identity and expression might treat them as distinct protected categories, or as forms of sex or gender discrimination. The New York City Human Rights Law, for example, defines “gender” to include “gender identity, self-image, appearance, behavior or expression,” and it prohibits employment discrimination on any of those bases. N.Y.C. Admin. Code §§ 8-102(23), 8-107(1)(a). The New Jersey Law Against Discrimination includes gender identity and expression as its own category. N.J. Rev. Stat. § 10:5-12(a).
The language of Title VII does not specifically include gender identity and expression. Despite this, the Equal Employment Opportunity Commission (EEOC) considers discrimination on that basis to be an unlawful form of sex discrimination. See, e.g., Macy v. Holder, No. 0120120821, decision (EEOC, Apr. 20, 2012). The agency recently held that an employer violated Title VII by denying a transgender female employee access to the women’s restroom. Lusardi v. McHugh, No. 0120133395, decision (EEOC, Mar. 27, 2015).
The G.G. case largely centered around questions of restroom usage. The Fourth Circuit’s decision cited administrative decisions from the EEOC and other agencies addressing restroom facilities for transgender individuals. It also cited Department of Education (DOE) regulations requiring “comparable facilities” if an educational institution provides “separate toilet, locker room, and shower facilities on the basis of sex,” 34 C.F.R. § 106.33, and that agency’s interpretation that this requires that people have access based on their gender identity.
An agency’s interpretation of its own regulations is generally entitled to judicial deference, provided that it is not “plainly erroneous or inconsistent with the regulation or statute.” G.G., slip op. at 15, citing Auer v. Robbins, 519 U.S. 452, 461 (1997). EEOC decisions interpreting Title VII to include gender identity and expression as forms of sex discrimination should receive similar deference from the courts.
The sex discrimination attorneys at Phillips & Associates advocate for New York City job applicants and employees in city, state, and federal legal claims. Contact us online or at (212) 248-7431 today to schedule a free and confidential consultation with an experienced and knowledgeable employee rights advocate.
More Blog Posts:
How New York City’s New Gender Identity Discrimination Guidelines Affect Restrooms in the Workplace, New York Employment Attorney Blog, February 10, 2016
New Guidance from New York City Human Rights Commission on Gender Identity and Expression Discrimination, New York Employment Attorney Blog, January 25, 2016
Lawsuit Against New York College Alleges Sexual Harassment Under Title IX, New York Employment Attorney Blog, December 31, 2015