Gender identity and gender expression discrimination violate New York City’s antidiscrimination law, but the question of whether federal law applies to this type of discrimination remains unsettled nationwide. Some federal courts have ruled that gender identity discrimination is a form of sex discrimination, which is prohibited by Title VII of the Civil Rights Act of 1964. Other courts have concluded that Title VII does not apply since it does not mention “gender identity discrimination” by name. In the midst of this uncertainty, a series of lawsuits is challenging the White House’s policy banning transgender individuals from serving in the U.S. military. These lawsuits rely on constitutional arguments, such as violations of the Equal Protection Clause of the Fourteenth Amendment, instead of Title VII or similar statutes. None of these cases have reached a conclusion, but at least two courts recently ruled that the government must produce information about the “deliberative process” that led to the policy. Karnoski, et al v. Trump, et al, No. 2:17-cv-01297, order (W.D. Wash., Jul. 27, 2018); Stone, et al v. Trump, et al, No. 1:17-cv-02459, mem. op. (D. Md., Aug. 14, 2018). If you believe you have been discriminated against due to your gender identity or expression at work, reach out to a New York employment attorney to discuss the facts of your situation.
The current dispute involves a directive from the White House, issued in July 2017 via the social media platform Twitter, to prohibit transgender individuals from serving in the U.S. military. This reportedly took the Department of Defense, among many others, by surprise. Numerous lawsuits were filed within weeks of the announcement. The Karnoski and Stone lawsuits referenced above were filed in August 2017. They sought preliminary injunctions against the enforcement of the new policy, which courts granted in both cases. Causes of action included alleged violations of the Due Process Clause of the Fifth Amendment, the Equal Protection Clause, and the Free Speech Clause of the First Amendment.
As the lawsuits proceeded to discovery, the plaintiffs requested information about how the White House developed the policy. They specifically cited a tweet from the President asserting that he had “consult[ed] with my Generals and military experts” prior to announcing the policy. The White House sought to withhold information responsive to these requests under the “deliberative process privilege,” a common law principle that is often cited in response to requests under the Freedom of Information Act. See 5 U.S.C. § 552(b)(5). The Department of Justice describes the privilege as necessary to enable “candid discussion needed for optimum decisionmaking inside government agencies,” but it also acknowledges that the government’s stated policy is to provide as much information to the public as possible.