Articles Posted in Gender Identity/Expression Discrimination

The laws of New York state have protected workers from discrimination in employment on the basis of gender identity and gender expression since 2016, thanks to regulations issued by the state’s Division of Human Rights (DHR). New York City’s antidiscrimination law expressly identifies discrimination on the basis of gender identity or gender expression as a form of sex discrimination. It is one of the few laws in the nation to address the issue in unambiguous terms. The New York Legislature passed S1047/A747, known as the Gender Expression Non-Discrimination Act (GENDA), on January 15. The governor signed it into law on January 25. The bill amends the New York State Human Rights Law (NYSHRL) to include gender identity and expression as a distinct protected category in employment, education, housing, and use of public accommodations.

The New York City Human Rights Law (NYCHRL) prohibits discrimination in employment and other areas on the basis of gender and defines “gender” to include “actual or perceived…gender-related characteristic[s], regardless of the sex assigned to that person at birth.” N.Y.C. Admin. Code §§ 8-102, 8-107(1)(a). This includes gender identity and expression. At the state level, the DHR exercised its authority under the NYSHRL to “promulgate…suitable rules and regulations to carry out the [statute’s] provisions” in late 2015. N.Y. Exec. L. § 295(5). It issued regulations, which took effect in January 2016, adding “gender identity and the status of being transgender” to the NYSHRL’s definition of “sex.” 9 N.Y.C.R.R. § 466.13(c), N.Y. Exec. L. § 296(1)(a). The statute’s prohibition on discrimination and harassment on the basis of sex therefore also applies to gender identity.

GENDA amends multiple sections of the NYSHRL to add “gender identity or expression” as a protected category on equal footing with sex, race, age, religion, disability, and others. It defines the term as any “identity, appearance, behavior, expression, or other gender-related characteristic,” whether “actual or perceived,” and “regardless of the sex assigned to that person at birth.” S1047/A747 at § 3. This includes transgender status, but also other gender identities or forms of gender expression. GENDA also adds gender identity or expression to the Penal Law section defining hate crimes.
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The U.S. Supreme Court is considering whether to hear a dispute over whether the provisions of Title VII of the Civil Rights Act of 1964 prohibiting employment discrimination on the basis of sex apply to gender identity and gender expression discrimination. New York City employment discrimination attorneys may rely on the New York City Human Rights Law, but elsewhere, the extent of legal protection is far less clear. The case before the U.S. Supreme Court, R.G. & G.R. Harris Funeral Homes Inc. v. EEOC, is an appeal from a Sixth Circuit ruling in favor of an employee who alleges that her employer fired her shortly after she informed them that she was transgender. The U.S. Department of Justice (DOJ) filed a brief with the Supreme Court in October 2018 that sides with the employer. One year earlier, it rescinded a policy memorandum regarding gender identity discrimination and Title VII issued during the Obama administration.

Title VII states that an employer commits an unlawful employment practice when they discriminate against an individual “because of such individual’s…sex” or certain other factors. 42 U.S.C. § 2000e-2(a)(1). The Supreme Court has identified “sex stereotyping”—”evaluat[ing] employees by assuming or insisting that they matched the stereotype associated with their group”—as a form of sex discrimination under Title VII. Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989). The Equal Employment Opportunity Commission (EEOC) expressly identified “discriminat[ing] against someone because the person is transgender” as a violation of Title VII. Macy v. Dep’t of Justice, EEOC Appeal No. 0120120821 (April 20, 2012).

Former Attorney General Eric Holder issued a memorandum in December 2014 taking the position that Title VII’s provisions on sex discrimination in employment apply to discrimination on the basis of gender identity and gender expression. Under new management in October 2017, the DOJ rescinded this memorandum. It replaced it with a new memorandum stating that “‘Sex’ is ordinarily defined to mean biologically male or female,” and that discrimination “because of sex” therefore does not include gender identity and expression.
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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.
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New York City employment discrimination laws include express prohibitions against discrimination because of gender identity or gender expression. At the federal level, whether Title VII of the Civil Rights Act of 1964 contains similar protections depends on where the claim arises. Prior to 2017, the U.S. Department of Justice (DOJ) held that gender identity is covered by Title VII’s sex discrimination provisions. It filed suit in 2015 on behalf of a transgender woman alleging gender identity discrimination. United States v. Southeastern Okla. State Univ., No. 5:15-cv-00324, complaint (W.D. Okla., Mar. 30, 2015). The following year, officials from multiple states sued the federal government over certain policies on transgender rights. State of Texas, et al. v. United States, et al., No. 7:16-cv-00054, complaint (N.D. Tex., May 25, 2016). The two cases became intertwined as the issue of transgender rights gained attention in 2017.

Some courts have held that gender identity discrimination falls under Title VII’s prohibition on sex discrimination, finding it to be “because of sex,” as defined by the statute. They often cite a U.S. Supreme Court decision finding that “sex stereotyping” constitutes sex discrimination under Title VII. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). Gender identity discrimination, the argument goes, is sex discrimination because an individual does not conform to stereotypes about a particular gender. Other courts have held that, absent express inclusion of gender identity as a protected category, using those or similar words, it is not covered by the statute.

The DOJ filed suit on behalf of a complainant who began working at an Oklahoma university in 2004, when she “presented as a man and went by a traditionally male name.” Southeastern, complaint at 4. She notified the university of her intent to transition to a female identity in 2007. She alleged that, once this process began, and after it was complete, her employer treated her differently, and she was ultimately denied tenure because of her gender identity. The court ruled in July 2015 that the complainant is part of a protected class because of “sex stereotyping based on a person’s gender non-conforming behavior.” Southeastern, mem. op. at 5 (Jul. 10, 2015). A jury entered a verdict in the complainant’s favor in late 2017 and awarded her $1.165 million in damages.
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New 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.

The 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.