By Michelle D. Wyrick
The short answer is yes, for federal employees, and possibly, for others. In Macy v. Eric Holder, Agency No. ATF-2011-00751, 2012 WL 1435995, the EEOC decided that a transgender applicant’s complaint of discrimination based on gender identity was cognizable under Title VII of the Civil Rights Act of 1964. In Macy, a transgender applicant for a ballistics forensic technician position with the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) claimed that she was not hired because of her transgender status. She alleged that she was initially offered the position pending completion of a background check but that after she informed the ATF of her transgender status, her offer of employment was rescinded. Macy then filed a formal complaint with the ATF, alleging sex discrimination based on her gender identity and sex stereotyping. The ATF refused to process her claim based on her gender identity under the EEOC regulations. Macy appealed to the EEOC. The EEOC found that Macy’s claim should have been processed because “claims of discrimination based on transgender status, also referred to as claims of discrimination based on gender identity, are cognizable under Title VII’s sex discrimination prohibition ….”
The EEOC’s decision is noteworthy for a few reasons. First, it is the first ruling from the EEOC that specifically extends Title VII protection to claims based on transgender status. Second, although the decision applies only to federal employers, the EEOC’s interpretation may be used to extend the reach of Title VII to non-federal employers as well. Although some courts have previously concluded that “a label, such as ‘transsexual’ is not fatal to a sex discrimination claim where the victim has suffered discrimination because of his or her gender non-conformity,” Smith v. City of Salem, 378 F.3d 566, 574-75 (6th Cir. 2004), other courts have disagreed, finding that “discrimination against a transsexual based on the person’s status as a transsexual is not discrimination because of sex under Title VII.” Etsitty v. Utah Transit Auth., 502 F.3d 1215, 1221 (10th Cir. 2007). The EEOC’s decision in Macy may be used to influence even those courts that have interpreted Title VII to protect transgender individuals under a theory of sex stereotyping to construe Title VII more broadly. As the EEOC opined, “evidence of gender stereotyping is simply one means of proving sex discrimination.” According to the EEOC’s decision in Macy, “intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination ‘based on … sex,’ and such discrimination therefore violates Title VII.”
Wyatt Employment Law Report 