The 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.