Transgender Rights in the Workplace Under Fire

Defining “sex” for purposes of Title IX of the Educational Amendments Act of 1972 as meaning a “person’s status as male or female based on immutable biological traits identifiable by or before birth”

Earlier this week, the Trump administration announced that it was considering defining “sex” for purposes of Title IX of the Educational Amendments Act of 1972 as meaning a “person’s status as male or female based on immutable biological traits identifiable by or before birth . . . The sex listed on a person’s birth certificate, as originally issued, shall constitute definitive proof of a person’s sex unless rebutted by reliable genetic evidence.” This would be an effective refusal by the federal government to recognize transgenders as an entity.

This comes on the heels of an October 2017 memo written by Attorney General Jeff Sessions, which interpreted the sex discrimination prohibition of Title VII (the employment discrimination component of the Civil Rights Act of 1964) to cover discrimination between men and women, but not to cover gender identity per se, including transgender status. This was a reversal from the Obama administration’s Justice Department interpretation set forth in December 2014, which saw gender identity as a form of sex discrimination.

However, earlier this year, the Sixth Circuit Court of Appeals unanimously found that transgender people are protected by Title VII, and that discrimination against them is inherently sex discrimination. The Equal Employment Opportunity Commission brought the case on the behalf of a funeral home director had been fired by a funeral home for wearing female clothing during a male-to-female transition. The Court found the funeral home owner’s defense, that forcing him to keep the director would violate his “sincerely held religious beliefs” in violation of the Religious Freedom Restoration Act, unavailing.

Both New York State and New York City Human Rights Laws protect against discrimination on the basis of one’s gender identity. Check the laws of where you work to see if gender identity is protected against discrimination.

If you believe you may have been a victim of discrimination on the basis of your gender identity, or any other protected characteristic under the law, please contact Borrelli & Associates today for a consultation.