Articles Posted in Gender Identity/Expression Discrimination

protestNew York City gender discrimination laws prohibit discrimination on the basis of gender identity and gender expression, but protections at the federal level for transgender and gender-nonconforming workers are far less certain. The United States Armed Forces, which are subject to their own separate set of laws, allowed overt discrimination on the basis of both sexual orientation and gender identity until quite recently. A memorandum issued by the White House in August 2017, however, bluntly directed the Department of Defense (DOD) and the Department of Homeland Security (DHS) to reinstitute the prior policy of excluding transgender individuals from military service. Lawsuits soon followed, and after two judges ruled in the plaintiffs’ favor against the ban on transgender soldiers, the Department of Justice (DOJ) stated that it would not appeal the decisions. The DOD later announced that transgender individuals could begin enlisting again on January 1, 2018.

In 1993, Congress enacted the “Don’t Ask Don’t Tell” (DADT) policy, previously found at 10 U.S.C. § 654. A servicemember could be removed from service under this policy if they engaged in or solicited “a homosexual act or acts”; if they stated that they were “a homosexual or bisexual, or words to that effect”; or if they “married or attempted to marry” someone of their “same biological sex.” 10 U.S.C. § 654(b). Congress repealed DADT in 2010. The DOD began the process of lifting restrictions on transgender servicemembers in July 2015, and it officially lifted the ban in June 2016.

A new administration moved into the White House in January 2017 and quickly began reversing policies enacted by the prior administration relating to gender identity and gender expression. The memorandum reversing the policy on transgender servicemembers, issued on August 25, 2017, asserted that the DOD had failed to conduct a sufficient review of potential negative effects. It directed the DOD and DHS to cease all activities relating to compliance with the revised policy—with specific mention of “sex-reassignment surgical procedures for military personnel”—and to return to the policy in effect prior to June 2016. The memorandum would have been controversial on its own terms, but the president’s use of Twitter to announce the ban added to the controversy.

New York City has one of the most robust anti-discrimination laws in the country. Indeed, in New York City, employers cannot discriminate based on a number of factors, including an applicant’s gender, sexual orientation, or partnership status. Despite the vigorous protections, employers continue to discriminate, especially against transgender individuals. In fact, the U.S. government openly discriminated against transgender individuals until very recently.

SoldiersBack in June of last year, President Trump announced his intention to ban transgender individuals from serving in the nation’s armed services. Since the announcement of that upcoming regulation, courts across the country have seen numerous lawsuits filed in an attempt to preclude the Trump administration from putting the regulations into effect.

Several of those lawsuits resulted in federal judges ordering that the policy not go into effect, based on the fact that it likely violates the Equal Protection Clause of the United States Constitution. According to a recent news report, the Trump administration has decided not to appeal the rulings, and it has begun to allow transgender individuals to enlist as of January 1, 2018.

New York Gender Expression Discrimination

As noted above, under the New York City Human Rights Commission, it is against the law to discriminate against an individual based on their expressed gender.

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Library of CongressThe terms “gender identity” and “gender expression,” in the context of New York City gender identity discrimination law, encompass a spectrum of factors related to gender and self-image. New York City has included these factors in its employment discrimination law since 2002. A federal court did not find in favor of a gender identity discrimination claim until 2008. The landmark decision in Schroer v. Billington, 577 F.Supp.2d 293 (D.D.C. 2008), is worth revisiting.

“Gender identity” refers to a person’s sense of their own gender, whether or not it matches their biological sex. “Gender expression” consists of how a person presents their gender, such as through their name, clothing, and behavior. A transgender person is someone who identifies as a different gender than the biological sex assigned to them at birth, and who might express themselves in accordance with that gender identity. Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of sex and other factors. 42 U.S.C. § 2000e-2(a)(1). A U.S. Supreme Court ruling recognizing “sex stereotyping” as a form of sex discrimination under Title VII, Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), has led some courts and administrative agencies to extend Title VII protections to gender identity and gender expression claims.

The plaintiff in Schroer was a transgender woman who transitioned to a female gender identity and expression as an adult. Prior to her transition, she served in the U.S. Armed Forces for 25 years, retiring in January 2004 with the rank of colonel. She held a very high-level security clearance at the time of her retirement, due to her anti-terrorism work with the U.S. Special Operations Command.

Department of JusticeThe past year has brought considerable uncertainty in many aspects of employment discrimination law, as the new administration in the White House rolls back measures enacted by the previous administration. Protections against gender identity discrimination under federal statutes like Title VII of the Civil Rights Act of 1964 have received particular attention. The statute prohibits employment discrimination on the basis of sex and other factors. New York City employment discrimination law expressly includes gender identity and expression. At the federal level, however, the protection is based largely on inferences from the statutory text. The Equal Employment Opportunity Commission (EEOC) has ruled that Title VII’s prohibition on sex discrimination encompasses discrimination based on gender identity and gender expression, but the Department of Justice (DOJ) now takes the opposite position. A memorandum issued by the Attorney General (AG) in October 2017 overrules a 2014 memorandum from the previous occupant of that office.

Title VII prohibits a range of discriminatory acts by employers against an employee “because of such individual’s…sex.” 42 U.S.C. § 2000e-2(a)(1). The EEOC has concluded that this includes “gender discrimination, and not just discrimination on the basis of biological sex.” Macy v. Holder, Appeal No. 0120120821, decision (EEOC, Apr. 20, 2012). The agency found that Title VII allows claims for “discrimination based on gender identity, change of sex, and/or transgender status.” Id. Laws at the state and municipal levels around the country include express provisions addressing these factors, often encompassed by the terms “gender,” “gender identity,” and “gender expression.” See, e.g., N.Y.C. Admin. Code § 8-102(23).

In December 2014, the DOJ issued a memorandum addressing gender identity claims under Title VII. The memorandum does not quite endorse the view that Title VII sex discrimination includes gender identity and expression. Instead, it states that the DOJ will not argue against allowing such claims under Title VII. The overall effect was probably about the same, if not as satisfying as a full endorsement. The memorandum discusses how past court rulings support the inclusion of gender identity and expression, noting the U.S. Supreme Court’s ruling on a claim of discrimination by “sex stereotyping” in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). After a federal court in Washington, D.C. ruled in favor of a worker’s gender identity discrimination claim, Schroer v. Billington, 577 F.Supp.2d 293 (D.D.C. 2008), several federal agencies began recognizing gender identity discrimination as sex discrimination.

Pride Flag mapEmployment discrimination based on gender identity or gender expression remains an uncertain legal matter in many parts of the country, with many seemingly contradictory interpretations of existing law. Federal law does not expressly recognize gender identity and gender expression as protected categories, but the Equal Employment Opportunity Commission (EEOC) has interpreted the prohibitions on sex discrimination in Title VII of the Civil Rights Act of 1964 to include gender identity and expression. The Department of Justice (DOJ), on the other hand, has recently changed its position to the view that Title VII does not apply to these categories. New York gender identity discrimination law protects transgender workers from discrimination at the state level, as well as in many municipalities. A lawsuit filed earlier this year by a transgender woman in a Michigan state court appears to be seeking to apply the EEOC’s position to state law, arguing that sex discrimination inherently includes gender identity and expression. Reed v. McDonald’s Corp., et al., No. 17-007889-CD, complaint (Mich. Cir. Ct., Wayne Cty., May 25, 2017).

The New York State Human Rights Law prohibits employment discrimination on the basis of “sex,” while the New York City Human Rights Law covers discrimination based on “gender.” N.Y. Exec. L. § 296(1)(a), N.Y.C. Admin. Code § 8-107(1)(a). Both statutes define these terms to include gender identity, including when that identity does not match the gender assigned to an individual at birth, and gender expression. 9 CRR-NY 466.13(c), N.Y.C. Admin. Code § 8-102(23).

Federal employment discrimination law does not expressly include gender identity or gender expression in its definition of “sex.” The EEOC, however, has interpreted Title VII as applying to discrimination based on transgender status, citing court opinions regarding stereotypes about sex and gender. See, e.g., Macy v. Dep’t of Justice, EEOC Appeal No. 0120120821 (Apr. 20, 2012). This interpretation of Title VII now conflicts with the DOJ’s view of the statute. Attorney General Eric Holder issued a memorandum in December 2014 directing U.S. Attorneys and DOJ agency heads to apply a similar reading of Title VII to the EEOC. This interpretation was revoked in a memo issued on October 4, 2017.

Gender identity and gender expression are not specifically identified as protected categories in federal anti-discrimination law. New York City’s employment anti-discrimination statute includes both gender identity and gender expression, making it one of the most extensive such laws in the country. Despite a variety of recent setbacks at the federal level, caselaw has been gradually developing in a direction that offers some hope for the view that gender identity and gender expression are already protected by federal prohibitions on sex discrimination. A U.S. Supreme Court decision finding that Title VII of the Civil Rights Act of 1964 prohibits “sex stereotyping” could provide a basis for claims based on gender identity and expression. A New York gender discrimination case filed in a Manhattan federal court seeks confirmation of an arbitration award finding sex discrimination, based in part on sex stereotyping. Berger v. Kargo Global, Inc., No. 1:17-cv-04288, petition (S.D.N.Y., Jun. 8, 2017).

Housewife cartoonTitle VII states that it is “an unlawful employment practice” to discriminate against an employee or job applicant “because of…sex” or other factors. 42 U.S.C. § 2000e-2(a). The definition of “because of sex” has expanded over the years, through both legislation and court decisions, to include more specific acts like sexual harassment and pregnancy discrimination. See, e.g. id. at § 2000e(k). The Supreme Court has also held that sex discrimination under Title VII includes discrimination on the basis of stereotypes about how members of a particular gender should, or should not, behave. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).

Justice Brennan, writing for the majority in Price Waterhouse, offered the example of “[a]n employer who objects to aggressiveness in women” but who “require[s] this trait” in employees. Id. at 251. This would put female employees “in an intolerable and impermissible Catch-22,” since they would risk losing their job no matter what they do. Id. Subsequent court decisions have indicated that unlawful sex stereotyping can involve both female employees deemed insufficiently feminine and male employees deemed insufficiently masculine. This analysis could also apply to transgender and gender-nonconforming employees, although no clear legal precedent currently exists.

Federal RegisterNew York City employment statutes continue to lead much of the country in the scope of protection provided for workers, particularly in areas like gender identity and gender expression. Employment laws and regulations at the federal level, however, seem to be moving in the opposite direction. Two events of the past few months affecting gender identity discrimination might offer an idea of the legal challenges ahead. The new administration in the White House has left in place an executive order (EO) issued by former President Obama dealing with sexual orientation and gender identity discrimination, but it has rescinded another EO that facilitated enforcement of that order. An unexpected announcement regarding transgender people serving in the military, meanwhile, has led to at least one lawsuit in Washington.

Federal Contracting

President Obama issued EO 13672 in July 2014. 79 Fed. Reg. 42971 (Jul. 23, 2014). The order amended existing prohibitions on various forms of employment discrimination by federal contractors, adding sexual orientation and gender identity as protected categories. Some provisions took effect immediately, while others took effect in 2015. Shortly after issuing that EO, the White House issued EO 13673, entitled “Fair Pay and Safe Workplaces,” which outlined procedures for ensuring compliance by federal contractors. 79 Fed. Reg. 45309 (Aug. 5, 2014); see also 81 Fed. Reg. 58807 (Aug. 26, 2016), 81 Fed. Reg. 58653 (Oct. 25, 2016). This EO required contractors to make disclosures regarding recent judgments or other adjudications under various statutes, as well as pending complaints.

restroom signIn April 2016, a federal appellate court issued a ruling that had the potential to support New York gender identity employment discrimination claims under federal law. G.G. ex rel. Grimm v. Gloucester Cty. School Bd., 822 F.3d 709 (4th Cir. 2016). The court held that the federal statute addressing sex discrimination in education applied to a claim of discrimination on the basis of gender identity. Employment laws in New York City and other jurisdictions expressly prohibit gender identity and gender expression discrimination, but federal employment law does not mention it. The U.S. Supreme Court granted certiorari in the case last August. Earlier this year, it vacated the appellate court’s ruling and remanded the case, noting that the lower court’s decision relied on a federal administrative interpretation of the law that had since been revoked. The Supreme Court may still hear the case, but only after the appellate court reviews it again.

Under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., it is unlawful for employers to discriminate on the basis of sex and other factors. Several federal courts, at both the district and the appellate levels, have ruled that Title VII’s sex discrimination provisions apply to gender identity and gender expression claims. This is also the position of the Equal Employment Opportunity Commission (EEOC), based on its own rulings. The U.S. Supreme Court, however, has not ruled on this question.

The statute at issue in G.G. is Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. Much like Title VII, Title IX’s provisions on sex discrimination make no specific mention of gender identity or gender expression. The G.G. case focused on a regulation requiring schools to provide “comparable facilities,” including restrooms, to students of different sexes. 34 C.F.R. § 106.33. In a 2015 opinion letter, the U.S. Department of Education (DOE) interpreted this rule to mean that schools must allow transgender students to use the restroom that matches their gender identity. The U.S. Department of Justice began enforcing this requirement in the same year, and the two departments issued a joint guidance document in 2016.

dominoesGender identity and gender expression are protected categories under New York City’s employment discrimination statute. Federal law does not expressly address this type of discrimination, and the Supreme Court has not ruled on the issue. Several federal courts have taken steps toward recognizing this as a federal claim, and the Equal Employment Opportunity Commission (EEOC) has recognized it as a valid claim in its own rulings. Recent changes in Washington, however, have raised concerns about the EEOC. After the EEOC appealed the dismissal of a gender identity discrimination lawsuit to the Sixth Circuit, the complainant filed a motion to intervene on her own behalf in early 2017. She cited concern “that the EEOC may no longer adequately represent her interests going forward.” EEOC v. R.G. & G.R. Harris Funeral Homes, No. 16-2424, motion to intervene (6th Cir., Jan. 26, 2017). The court granted the motion in March.

The U.S. Supreme Court has held that Title VII of the Civil Rights Act of 1964 prohibits discrimination that derives from an employee or job applicant failing to conform to common stereotypes about how people of their particular sex or gender should look or act, also known as “sex stereotyping.” Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). Several federal courts and the EEOC have cited Price Waterhouse in ruling that gender identity and gender expression discrimination constitute unlawful sex stereotyping under Title VII. See, e.g., Macy v. Holder, App. No. 0120120821, dec. (EEOC, Apr. 20, 2012).

The complainant in R.G. & G.R. Harris, a transgender woman, alleged discrimination on the basis of gender identity and expression. The complainant informed the defendant of her intention to transition from male to female after several years of employment there. Although she reportedly stated that she would abide by the dress code for female employees, the defendant fired her several weeks later. The EEOC filed suit the following year.

gender equalityThe rights of transgender people have been the subject of multiple victories and setbacks in the past few years. With regard to protections against employment discrimination, New York City law expressly includes gender identity and gender expression as protected categories, as do laws in many other cities and states. At the federal level, however, Title VII of the Civil Rights Act of 1964 does not specifically mention gender identity or gender expression. Many advocates for transgender rights argue that certain judicial interpretations of Title VII’s prohibition on sex discrimination apply its protections to both sexual orientation and gender identity and expression. This argument has had some success at the federal appellate level with regard to sexual orientation. The Equal Employment Opportunity Commission (EEOC) has adopted this view for both types of discrimination. At least one case currently pending in a Circuit Court of Appeals is making a similar argument about the applicability of Title VII to gender identity and gender expression.

Justice William Brennan interpreted Title VII as a clear statement by Congress “that sex, race, religion, and national origin are not relevant to the selection, evaluation, or compensation of employees.” Price Waterhouse v. Hopkins, 490 U.S. 228, 239 (1989). The plaintiff in that case claimed that she was denied partnership because she failed to conform to common stereotypes about how women should behave. The evidence included a statement by a partner advising her to “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” Id. at 235. The court held that this sort of “sex stereotyping” was an unlawful form of sex discrimination under Title VII.

Many advocates and judicial opinions have noted the resemblance of sexual orientation discrimination to the type of “sex stereotyping” addressed in Price Waterhouse. Gay and lesbian employees, the argument goes, do not fit the stereotype of whom individuals should love. Some courts have expressed sympathy for this argument, while also stating that their hands are tied without further action by Congress. See, e.g. Bibby v. Phila. Coca Cola Bottling Co., 260 F.3d 257, 265 (3d Cir. 2001). Although it has yet to receive much judicial scrutiny, the applicability of the “sex stereotyping” argument to gender identity and expression is not hard to see.

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