Employment Discrimination Continues for Transgender Individuals Under Administration
In late October, the U.S. Department of Justice (DOJ) weighed on a decision by the U.S. Court of Appeals for the Sixth Circuit that it hopes to have reversed by the U.S. Supreme Court. It is legal for businesses to discriminate against transgender employees based on their gender identity because federal civil rights laws banning discrimination on the basis of sex do not cover gender identity and transgender individuals.
The case last came before and was decided by the U.S. Court of Appeals for the Sixth Circuit and involves a funeral home who allegedly fired an employee because that individual came out as a transgender woman and informed her employer that was the gender identity she planned to present in the workplace. The judge in that case decided that discrimination on the basis of transitioning and/or transgender status is discrimination based on sex.
This decision now joins many others in terms of statements already made by lower federal courts, federal appeals courts, and the Equal Employment Opportunity Commission; all of which have agreed that discriminating against transgender individuals constitutes illegal sex discrimination.
Previous Announcements Supporting Discrimination Against Transgender Individuals
Unfortunately, the current administration has a pattern of moving in the opposite direction of protecting transgender individuals in the workplace and elsewhere. Last year, Attorney General Jeff Sessions announced that transgender individuals would not be protected from sex discrimination under Title VII of the 1964 Civil Rights Act. Meanwhile, an internal memo that recently surfaced involving the Department of Health and Human Services proposed making modifications to the law to redefine “gender” under Title IX of the Civil Rights Act of 1964 as a biological condition that is “determined at birth” entirely based upon an individual’s genitalia.
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Ultimately, the courts have the final word here, and it is entirely possible that the U.S. Supreme Court might decide not to hear the case, which would then leave the Sixth Circuit’s opinion in place declaring transgender individuals to be protected under the sex discrimination provisions of the law. The courts are always the most important, final word on these important issues, and, in the coming months, the U.S. Supreme Court is expected to consider two other cases involving the issue of whether sexual orientation bias is a form of sex discrimination covered under civil rights laws and protections. The DOJ has officially urged the Court to decide these cases before taking up the funeral home case, feeling that these cases could very well be determinative on the issue.
At Douglas & Douglas, we regularly represent those who have been discriminated against in the workplace based on sex and/or gender. If you believe you have been terminated or suffered in any other way in the workplace due to your gender identity, contact us right away to find out how we can help.