Lawsuit Alleging Gender Identity Discrimination Becomes Entangled with Lawsuit Seeking to Invalidate Federal Gender Identity Policies

Legal News GavelNew 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.

The lawsuit brought by the various state officials challenged the DOJ’s and other federal agencies’ gender identity policies under several federal statutes, calling them a “conspir[acy] to turn workplaces and educational settings across the country into laboratories for a massive social experiment.” Texas, complaint at 3. The Southeastern complainant intervened in the lawsuit after the court issued a preliminary injunction. She sought a declaratory judgment, based on the Oklahoma court’s July 2015 ruling in her case, stating that gender identity is a protected class under federal law.

The Texas court never ruled on the complainant’s request for declaratory judgment. See Texas, et al. v. United States, et al., No. 16-11534, slip op. (5th Cir., Feb. 9, 2017). A new presidential administration had taken office in January 2017, and the DOJ and other agencies withdrew the challenged policy documents shortly afterwards. The state officials voluntarily dismissed their lawsuit in March 2017.

The experienced and knowledgeable gender identity discrimination attorneys at Phillips & Associates advocate for job applicants and employees in New York City, helping them assert claims of gender identity discrimination and other unlawful practices. Contact us today at (212) 248-7431 or online to schedule a free and confidential consultation to see how we can help you.

More Blog Posts:

Federal Courts Block White House Policy Barring Military Service Because of Gender Identity in New York and Throughout the Country, New York Employment Attorney Blog, January 18, 2018

Trump Administration Decides Not to Appeal Court Ruling Preventing Enforcement of Transgender Military Ban, New York Employment Attorney Blog, January 2, 2018

Title VII Sex Discrimination Includes Gender Identity, According to Federal Court, New York Employment Attorney Blog, December 22, 2017

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