Does Title VII's prohibition on discrimination on the basis of sex cover discrimination against transgender people?  Recently, the EEOC ruled that it does.

Does Title VII's prohibition on discrimination on the basis of sex cover discrimination against transgender people? Recently, the EEOC ruled that it does.

On April 20, 2012, the Equal Opportunity Commission (EEOC) concluded that Title VII of the Civil Rights Act of 1964 (Title VII) protects transgender people from discrimination on the basis of sex. The landmark decision in Macy v. Holder (ATF-2011-00751, EEOC Apr. 20, 2012), which went into effect on May 21, prohibits public and private employers throughout the United States from discriminating against transgender and other "gender-nonconforming" job applicants and employees.

In Macy, the complainant, an Arizona transgender woman, alleged that the Bureau of Alcohol, Tobacco, Firearms and Explosives (Agency) had denied her a job at its Walnut Creek, California crime laboratory because of her gender identity. Ms. Macy, an experienced police detective, was highly qualified for the position. At the time she applied, Ms. Macy still presented as male. During a telephone conversation with the laboratory's director, she was told that the position was hers pending results of a background check. Sometime after the background check began, Ms. Macy informed the Agency that she was transitioning from male to female. A week later, she was told that due to budget reductions, the position had been cut. She was later told that the position had not, in fact, been cut, but rather, that someone else had filled the position. Ms. Macy filed a complaint with the EEOC alleging discrimination based on "change of gender (from male to female)."

In concluding that "discrimination based on gender identity, change of sex, and/or transgender status is cognizable under Title VII," the EEOC relied on the Supreme Court's decision in Price Waterhouse v. Hopkins (490 U.S. 228 (1989)). In Price Waterhouse, the employer denied partnership to a senior female manager because she was not "feminine" enough in her dress, behavior and mannerisms. The Supreme Court ruled that Title VII bars "gender stereotyping – failing to act and appear according to expectations defined by gender."

Since Price Waterhouse, many lower courts have found in favor of individuals who were discriminated against by their employers because they "act[ed] or appear[ed] in gender-nonconforming ways." These cases included a woman who appeared too "tomboyish;" several gay men who were viewed as "too effeminate;" and several transgender women who were viewed "as anatomical males whose outward behavior and inward identity did not meet social definitions of masculinity."

However, in many states, courts have not yet ruled on discrimination cases involving transgender or gender-nonconforming people, and state laws may not protect them. By ruling that Title VII prohibits all public and private employers from discriminating against job applicants and employees based on gender stereotypes, Macy has given transgender and other gender-nonconforming people a legal remedy that did not previously exist.

As a result of Macy, an employer may not treat a job applicant or employee differently because he or she is a transgender person or because he or she does not act the way the employer expects a male or female to act. Specifically, an employer may not deny an applicant a job, demote or terminate an employee for not being "feminine" enough, for being "too effeminate" in dress, appearance or behavior, or because the applicant or employee is a male or female transitioning to, or already transitioned to, the opposite sex.

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