The Sixth Circuit Rules an Employer Violated Title VII by Terminating its Transgender Employee

By R. Joseph Stennis, Jr.

On March 7, 2018, the United States Court of Appeals for the Sixth Circuit reversed a district court decision and ruled in favor of a transgender employee who claimed she was terminated by her employer based on her sex pursuant to Title VII of the Civil Rights Act of 1964.  Aimee Stephens, formerly known as Anthony Stephens, worked as a funeral director at R.G. and G.R. Harris Funeral Homes, Inc.  The funeral home had a dress code policy, requiring male employees to wear suits and female employees to wear skirts and business jackets.  The funeral home provided free suits to the male employees, but did not (at least initially) provide female employees with any clothing to comply with the company’s dress code policy.  Stephens informed the funeral home that she would be transitioning from male to female and therefore would begin to dress to be in compliance with the company’s dress code for females.  Shortly thereafter,

Sixth Circuit to Weigh In on Religious Protection and Transgender Rights

By Amanda Warford Edge

Last week, a Detroit funeral home filed a brief with the Sixth Circuit arguing that it could fire a transgender employee who refused to follow its sex-specific dress code. According to the funeral home, allowing the employee (who was transitioning from male to female) to wear women’s clothes at work — namely, a skirt suit — would violate the religious beliefs of the home’s owner.

Last year, at the district court level, the Court said that the Religious Freedom Restoration Act (“RFRA”) shielded the funeral home from liability because the termination stemmed from its owner’s devout Christian worldview. In other words, the Court held that the funeral home was entitled to a religious exemption under RFRA and, therefore, did not violate federal employment discrimination law. In making its ruling, the Court reasoned, in part, that transgender people are not protected by federal anti-bias law.

The EEOC appealed this ruling and filed its brief in February. The funeral home has now asked the Court to affirm the holding that Title VII does not protect transgender people because the meaning of “sex” when Title VII was passed did not include the concept of gender identity. The funeral home also remains adamant that RFRA provides a legal defense for its enforcement of its sex-specific dress code.

The case is EEOC v. RG & GR Harris Funeral Homes, Case No. 16-2424.

U.S. Supreme Court remands transgender bathroom case back to Fourth Circuit

By Courtney Samford

On March 6, 2017, the U.S. Supreme Court remanded a case involving a transgender high school student back to the Fourth Circuit Court of Appeals.  The case, Gloucester County School Board, Petitioner v.  G. G., By His Next Friend and Mother, Deirdre Grimm, focuses on the right of a transgender boy, Gavin Grimm, to use the bathroom that corresponds with his gender identity at his public high school.  Grimm, who was born a girl, used the boys’ restrooms with the approval of school administration until the Gloucester County School Board enacted a policy that required all students to use the bathroom that corresponded with their gender assigned at birth.

Grimm filed suit, alleging that the school board’s policy discriminated against him in violation of Title IX and the Equal Protection Clause.  The lower court dismissed Grimm’s Title IX claim.   Following an appeal, the Fourth Circuit reversed, finding that the lower court did not

Obama Administration Issues Guidance to Public Schools Regarding Transgender Access to Restrooms

By Amanda Warford Edge

On Friday, May 13th, 2016, the Obama administration issued guidance directing all public schools in the country to allow transgender students to use the bathroom that corresponds with their gender identity. This guidance was issued amidst a court fight between North Carolina and the federal government over North Carolina’s controversial House Bill 2, which bans people from using public bathrooms that do not correspond with their biological sex.

U.S. Secretary of Education John B. King, Jr. said that the guidance comes in response to schools and parents seeking direction on the issue. According to the Obama administration, the guidance ensures that all “transgender students enjoy a supportive and nondiscriminatory school environment.” The guidance also states schools cannot require transgender students to have a medical diagnosis, undergo any medical treatment, or produce a birth certificate before treating them consistently with their gender identity.

While this guidance does not have the force of law, its message was clear: gender identity is protected under Title IX as far as

EEOC Weighs In On Bathroom Issue for Transgender Employees

By Michelle Wyrick

Following recent news reports about Target’s bathroom controversy and North Carolina’s bathroom law, the U.S. Equal Employment Opportunity Commission (“EEOC”) has issued a Fact Sheet outlining its views on bathroom access rights for transgender employees under Title VII of the Civil Rights Act.  You can view the Fact Sheet here.

According to the EEOC, Title VII’s prohibition on sex discrimination also prohibits discrimination based on gender identity and sexual orientation.  Consequently, denying a transgender employee access to a common restroom corresponding to the employee’s gender identity constitutes sex discrimination.  An employer cannot require an employee to provide proof of surgery or any other medical procedure in order to use a particular restroom.  Nor can an employer avoid the requirement to provide equal access to a common restroom by restricting a transgender employee to a single-user restroom (although an employer can make a single-user restroom available to all employees who choose to use it).  The hostility or discomfort of other employees cannot overcome the right of a transgender employee to use the restroom corresponding with his or her gender identity.  Moreover, contrary state law is no defense.  Sorry, North Carolina.

Are Transgender Individuals Protected By Title VII?

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 (6^th 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 (10^th 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.”