Does Federal Law Protect Against Transgender Employment Discrimination?

The answer might be a little more complicated than you think.

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After working at a funeral home in Detroit for six years, Aimee Stephens wanted to let her employer in on a secret. Aimee was a transgender woman but had never dressed as such at work for fear of retaliation. She felt that her performance and positive reviews would outweigh any prejudice on behalf of her employer. However, after writing a letter to her boss, she was fired.

Believing that she was being unfairly discriminated against, she decided to file a complaint with the EEOC. Although most claims are handled by the agency within a few months, this particular claim went to court and was then appealed. After receiving a ruling in her favor from the Court of Appeals, the legal team representing her employer asked that the decision be taken to the Supreme Court where it is currently sitting.

Five years after filing with the EEOC, what seemed like a simple claim now has the opportunity to set the legal precedent for all federal transgender discrimination cases. Noticing the importance of this moment, major players from the ACLU to the Department of Justice have filed briefs with the Supreme Court on the matter to sway the judges. But was does Federal Law have to say on the matter?

Federal Employment Discrimination Law

As outlined by the Civil Rights Act of 1964, workplace discrimination is illegal based on protected characteristics, which include race, sex, religion, color, and national origin. Many states go a step further than federal law and have their own specific statutes relating to discrimination. California, for example, has the Fair Employment and Housing Act, which offers additional protection on top of federal laws.

Even though there are laws on the books, discrimination at work is still very common. For example, in 2017 alone, there were almost 85,000 charges filed with the EEOC, which is the lowest number since 2007. With so many cases each year, what makes the case of Aimee Stephens so unique?

What Makes Her Case Unique

Mentioned above, Federal Law prohibits discrimination based on religion, color, national origin, race, and sex. However, Title VII of the Civil Rights Act does not define what is meant by “sex.” More specifically, are sex and gender considered the same under the scope of discrimination laws? In the case of Aimee Stephens, the entire case hinges on exactly this debate.

The counsel for the employer argues that sex and gender are very different, although often related. Sex is a biological fact based on your DNA, whereas gender is more of a cultural or social norm that is assigned or chosen. Aimee Stephens is biologically a male but has taken on the gender identity of female. Therefore, they argue a strict interpretation of the law. Since the Civil Rights Act does not specifically mention gender or gender roles, it is not covered by the law. 16 states have filed briefs supporting this position along with the Department of Justice, under Attorney General Jeff Sessions.

Transgender activists, however, argue a more flexible interpretation of the law. Even though gender is not specifically stated in the Civil Rights Act, it is implied. The language of the law is over 50 years old and it was the original intention that both sex and gender should be included. When the 6th Circuit Court of Appeals decided in Stephens favor, this was the same logic used.

The Supreme Court Must Decide

As can be seen above, there are valid arguments on both sides, although one side is more inclusive. I asked the San Francisco discrimination lawyers at Rukin Hyland and Riggin LLP, and according to them, this is a huge moment for transgender rights in the United States. “The ruling here could set the legal precedent for future transgender employment decisions, and it hinges on the interpretation of one word. Additionally, the newly appointed Justice, Brett Kavanaugh, could swing the Court’s decision towards a stricter interpretation which would deal a damaging blow to transgender rights across the country.”

In contrast to the Obama administration, the current administration has taken the stance that gender identity is not protected under Federal Law, a point made clear a year ago. Even though the decision to let the ruling stand now rests with the Supreme Court, many activists are concerned about the outcome. If you believe that someone should not be fired on the basis that they are transgender, please share her story. 

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