Workplace discrimination on the basis of gender identity and gender expression is a form of unlawful sex discrimination under federal law, thanks to a 2020 U.S. Supreme Court ruling. New York State and New York City employment discrimination laws include specific protections for LGBTQ workers. Laws protecting against sex discrimination in education play as important a role in our society as those addressing workplace discrimination. While the Supreme Court’s decision last year did not include the federal statute prohibiting sex discrimination in education, the new White House administration has filled in the gaps. An executive order (EO) issued in January 2021 cites the Supreme Court in extending Title IX of the Education Amendments of 1972 to protect against discrimination on the basis of gender identity and gender expression. The Department of Justice (DOJ) issued a memo in late March applying the EO to its Title IX enforcement activities.
Title IX prohibits discrimination based on sex in any educational institution or program that receives federal funding. 20 U.S.C. § 1681(a). Title VII of the Civil Rights Act of 1964 bars discrimination by employers on the basis of sex and several other factors. 42 U.S.C. § 2000e-2(a). Neither statute provides a distinct definition of “sex,” except that Title VII includes pregnancy discrimination in its prohibition of “sex discrimination.”
Courts have gradually expanded the scope of “sex discrimination” over the years, to include acts like sexual harassment and discrimination based sex or gender stereotypes. Lawmakers in New York State, New York City, and many other state and local jurisdictions added gender identity and gender expression as distinct protected categories in their antidiscrimination laws. People asserting claims under federal law, for both employment and education discrimination, had to get creative.
The U.S. Supreme Court’s decision in Bostock v. Clayton County, 590 U.S. ___ (2020), affirmed several outside-the-box interpretations of Title VII’s prohibition of discrimination on the basis of sex. The case consolidated three appeals. Two involved employees who were fired because of their sexual orientation, and one involved an employee fired for her gender identity and expression. The plaintiff in the latter case was fired shortly after informing her employer that she was transgender, and beginning the process of transitioning her gender expression from male to female.
The court held that, in all three cases, the employer’s decisions were motivated by the employees’ sex. The employers would not have fired a woman for being attracted to men, the court reasoned, but it did fire a man because of his attraction to other men. They would not have fired a woman who had an outwardly female gender expression, but they fired a man with the same expression.
On his first day in office, the new President issued Executive Order 13988, 86 Fed. Reg. 7023 (Jan. 25, 2021). The order cites Bostock in stating that Title IX’s prohibition on sex discrimination includes sexual orientation and gender identity. Two months later, the DOJ issued a memo explaining its conclusion that Bostock should apply to Title IX. While courts are not obligated to follow either an EO or a DOJ memo regarding statutory interpretation, the two documents together may carry significant weight.
The employment lawyers at Phillips & Associates advocate for the rights of workers and job applicants in New York City. We represent clients in claims for gender identity and gender expression discrimination under city, state, and federal law. Please contact us today online or at (212) 248-7431 to schedule a free and confidential consultation with a member of our skilled and experienced team.