Examples of Court Decisions Supporting Coverage of LGBT-Related Discrimination Under Title VII
Supreme Court Decisions on the Scope of Title VII's Sex Discrimination Provision
Oncale v. Sundowner Offshore Servs., 523 U.S. 75 (1998). The Supreme Court held that same-sex harassment is sex discrimination under Title VII. Justice Scalia noted in the majority opinion that, while same-sex harassment was "assuredly not the principal evil Congress was concerned with when it enacted Title VII . . .statutory prohibitions often go beyond the principal evil [they were passed to combat] to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed. Title VII prohibits 'discriminat[ion] . . . because of . . . sex.' [This] . . . must extend to [sex-based] discrimination of any kind that meets the statutory requirements." Id. at 79-80.
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). The Supreme Court recognized that employment discrimination based on sex stereotypes (e.g., assumptions and/or expectations about how persons of a certain sex should dress, behave, etc.) is unlawful sex discrimination under Title VII. Price Waterhouse had denied Ann Hopkins a promotion in part because other partners at the firm felt that she did not act as woman should act. She was told, among other things, that she needed to "walk more femininely, talk more femininely, [and] dress more femininely" in order to secure a partnership. Id. at 230-31, 235. The Court found that this constituted evidence of sex discrimination as "[i]n the . . . context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender." Id. at 250. The Court further explained that Title VII's "because of sex" provision strikes at the "entire spectrum of disparate treatment of men and women resulting from sex stereotypes." Id. (quoting City of Los Angeles Dep't of Water & Power v. Manhart, 435 U.S. 702, 707 n.13 (1978) (internal citation omitted)).
Federal Court Decisions Supporting Coverage for Transgender Individuals as Sex Discrimination
Chavez v. Credit Nation Auto Sales, L.L.C., 2016 WL 158820 (11th Cir. Jan. 14, 2016). Reversing summary judgment for the employer on the plaintiff's claim that she was terminated from her job as an auto mechanic because she is transgender, the court remanded the case for trial because there was sufficient circumstantial evidence to create a triable issue of fact as to whether gender bias was a motivating factor. The employer asserted that the plaintiff was fired for sleeping on the job and noted that other employees had been fired for the same offense. However, less than two months before the plaintiff's termination, her supervisor had said that her transgender status made him "nervous" and would negatively impact the business and coworkers. Moreover, the plaintiff had received an excellent performance appraisal prior to disclosing her gender transition, and the employer deviated from its progressive disciplinary policy in imposing termination in the plaintiff's case.
Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011). The plaintiff, a transgender female, brought a claim under 42 U.S.C. § 1983 alleging unlawful discrimination based on sex in violation of the Equal Protection Clause when she was terminated from her position with the Georgia General Assembly. Relying on Price Waterhouse and other Title VII precedent, the court concluded that the defendant discriminated against the plaintiff based on her sex by terminating her because she was transitioning from male to female. The court stated that a person is considered transgender "precisely because of the perception that his or her behavior transgresses gender stereotypes." As a result, there is "congruence" between discriminating against transgender individuals and discrimination on the basis of "gender-based behavioral norms." Because everyone is protected against discrimination based on sex stereotypes, such protections cannot be denied to transgender individuals. "The nature of the discrimination is the same; it may differ in degree but not in kind." The court further concluded that discrimination based on sex stereotypes is subject to heightened scrutiny under the Equal Protection Clause, and government termination of a transgender person for his or her gender nonconformity is unconstitutional sex discrimination. Although in this case the defendant asserted that it fired the plaintiff because of potential lawsuits if she used the women's restroom, the record showed that the plaintiff's office had only single-use unisex restrooms, and therefore there was no evidence that the defendant was actually motivated by litigation concerns about restroom use. The defendant provided no other justification for its action, and therefore, the plaintiff was entitled to summary judgment.
Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005). Plaintiff, who "was a male-to-female transsexual who was living as a male while on duty but often lived as a woman off duty [and] had a reputation throughout the police department as a homosexual, bisexual or cross-dresser," alleged he was demoted because of his failure to conform to sex stereotypes. The court held that this stated a claim of sex discrimination under Title VII.
Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004). The plaintiff alleged that he was suspended based on sex after he began to express a more feminine appearance and notified his employer that he would eventually undergo a complete physical transformation from male to female. The court held that Title VII prohibits discrimination against transgender individuals based on gender stereotyping. The court determined that discrimination against an individual for gender-nonconforming behavior violates Title VII irrespective of the cause of the behavior. The court reasoned that the "narrow view" of the term "sex" in prior case law denying Title VII protection to transgender employees was "eviscerated" by Price Waterhouse, in which the Supreme Court held that Title VII protected a woman who failed to conform to social expectations about how women should look and behave.
Rosa v. Parks W. Bank & Trust Co., 214 F.3d 213 (1st Cir. 2000). Citing Title VII case law, the court concluded that a transgender plaintiff, who was biologically male, stated a claim of sex discrimination under the Equal Credit Opportunity Act by alleging that he was denied a loan application because he was dressed in traditionally female attire.
Schwenck v. Hartford, 204 F.3d 1187, 1201-02 (9th Cir. 2000). Citing Title VII case law, the court concluded that a transgender woman stated a claim of sex discrimination under the Gender Motivated Violence Act based on the perception that she was a "man who 'failed to act like one.'" The court noted that "the initial approach" taken in earlier federal appellate Title VII cases rejecting claims by transgender plaintiffs "has been overruled by the language and logic of Price Waterhouse."
Baker v. Aetna Life Ins., et al., __ F. Supp. 3d __, 2017 WL 131658 (N.D. Tex. Jan. 13, 2017). The court ruled that an employee stated a claim against her employer for sex discrimination in violation of Title VII based on denial of coverage under employer-provided health insurance plan for costs associated with surgery related to gender transition.
Mickens v. General Electric Co., No. 3:16CV-00603-JHM, 2016 WL 7015665 (W.D. Ky. Nov. 29, 2016). The court denied the employer's motion to dismiss a Title VII sex discrimination claim in which a transgender plaintiff alleged he was unlawfully denied use of the male bathroom close to his work station, and then was fired for attendance issues resulting from having to go to a bathroom farther away. He also alleged that once his supervisor learned of his transgender status, he was singled out for reprimands, and no action was taken in response to his reports of coworker harassment. Rejecting the employer's argument that discrimination based on transgender status is not actionable under Title VII, the court cited Sixth Circuit precedent recognizing that, in light of Price Waterhouse, the prohibition against gender discrimination in Title VII "can extend to certain situations where the plaintiff fails to conform to stereotypical gender norms." The court held that the complaint sufficiently pled a Title VII sex discrimination claim, noting that "[s]ignificantly, plaintiff alleges that GE both permitted continued discrimination and harassment against him and subsequently fired him because he did not conform to the gender stereotype of what someone who was born female should look and act like."
Roberts v. Clark Cty. Sch. Dist., No. 2:15-cv-00388-JAD-PAL, 2016 WL 5843046 (D. Nev. Oct. 4, 2016). Expressly adopting the EEOC's holdings in Macy and Lusardi, the court ruled that plaintiff, a transgender school police officer, was subjected to sex discrimination in violation of Title VII when he was told by his employer that he could not use either the men's or women's bathroom at work.
Doe v. Ariz., 2016 WL 1089743 (D. Ariz. Mar. 21, 2016). The plaintiff, a corrections officer, alleged the Department of Corrections violated Title VII's prohibition on sex discrimination based on gender identity when supervisors tolerated harassment of him and breached his confidentiality by informing prison inmates of his transition. Denying the employer's motion to dismiss, the court noted that the EEOC and courts have held that Title VII's sex discrimination provision prohibits workplace discrimination based on gender identity, and that the claim was described with sufficient clarity in the EEOC charge to render it exhausted.
Fabian v. Hosp. of Central Conn., 172 F. Supp. 3d 509 (D. Conn. 2016). Plaintiff, an orthopedic surgeon, brought a Title VII sex discrimination claim alleging she was not hired because she disclosed her identity as a transgender woman who would begin work after transitioning to presenting as female. Analyzing Title VII's legislative history and case law in extensive detail, the court held that Price Waterhouse abrogates the narrow view of 0Title VII's plain language that previously excluded sex discrimination claims by transgender individuals, citing supportive rulings by the 6th, 9th, and 11th Circuits, as well as the EEOC's decision in Macy. See alsoAdkins v. City of New York, 143 F. Supp. 3d 134 (S.D.N.Y. 2015) (allowing equal protection claim by transgender individual to proceed under 42 U.S.C. Section 1983).
Lewis v. High Point Regional Health Sys., 79 F. Supp. 3d 588 (E.D.N.C. 2015). Plaintiff, a certified nursing assistant, alleged she was denied hire for several positions because of her transgender status. At the time of her interviews, she was anatomically male, and was undergoing hormone replacement therapy in preparation for sex reassignment surgery in the future. The district court denied the employer's motion to dismiss the case because the employer had argued only that sexual orientation was not covered under Title VII and sexual orientation and gender identity are two distinct concepts. The court therefore allowed plaintiff's transgender discrimination claim to proceed under Title VII.
Finkle v. Howard Cty., Md., 12 F. Supp. 3d 780 (D. Md. 2014). Denying the county's motion to dismiss or for summary judgment on a Title VII claim brought by a volunteer auxiliary police officer, the court ruled that the officer was an "employee" for Title VII purposes, and that her claim that she was discriminated against "because of her obvious transgendered status" raised a cognizable claim of sex discrimination. The court reasoned: "[I]t would seem that any discrimination against transsexuals (as transsexuals) - individuals who, by definition, do not conform to gender stereotypes - is proscribed by Title VII's proscription of discrimination on the basis of sex as interpreted by Price Waterhouse. As Judge Robertson offered in Schroer v. Billington, 577 F. Supp. 2d 293 (D.D.C. 2008), '[u]ltimately I do not think it matters for purposes of Title VII liability whether the Library withdrew its offer of employment because it perceived Schroer to be an insufficiently masculine man, an insufficiently feminine woman, or an inherently gender-nonconforming transsexual.'"
Parris v. Keystone Foods, 959 F. Supp. 2d 1291 (N.D. Ala. 2013), appeal dismissed, No. 13-14495-D (11th Cir. Dec. 26, 2013). Plaintiff, a transgender female, alleged that she was discharged from her job at a chicken processing facility because of her "gender non-conformity." The district court, citing Glenn v. Brumby, recognized that the plaintiff's claims were covered by Title VII's sex discrimination prohibitions, but granted summary judgment to the employer on the ground that plaintiff's comparator evidence and evidence of discriminatory remarks by coworkers did not show that her discharge was motivated by her gender identity as opposed to the legitimate non-discriminatory reason proffered by the employer.
Radtke v. Miscellaneous Drivers & Helpers Union Local #638 Health, Welfare, Eye, & Dental Fund, 867 F. Supp. 2d 1023 (D. Minn. 2012). Assessing a claim under ERISA for wrongful termination of benefits to a legal spouse of a transgender individual, the court quoted the language from Smith v. City of Salem that the Supreme Court's decision in Price Waterhouse "eviscerated" the "narrow view" of "sex" articulated in earlier Title VII cases, and observed: "An individual's sex includes many components, including chromosomal, anatomical, hormonal, and reproductive elements, some of which could be ambiguous or in conflict within an individual."
Schroer v. Billington, 577 F. Supp. 2d 293 (D.D.C. 2008). The plaintiff, a transgender female, was offered a position as a terrorism research analyst before she had changed her name and begun presenting herself as a woman. After the plaintiff notified the employer that she was under a doctor's care for gender dysphoria and would be undergoing gender transition, the employer withdrew the offer, explaining that the plaintiff would not be a "good fit." The court stated that since the employer refused to hire the plaintiff because she planned to change her anatomical sex by undergoing sex reassignment surgery, the employer's decision was literally discrimination "because of ... sex." The court analogized the plaintiff's claim to one in which an employee is fired because she converted from Christianity to Judaism, even though the employer does not discriminate against Christians or Jews generally but only "converts." Since such an action would be a clear case of discrimination "because of religion," Title VII's prohibition of discrimination "because of sex" must correspondingly encompass discrimination because of a change of sex. The court concluded that decisions rejecting claims by transgender individuals "represent an elevation of 'judge-supposed legislative intent over clear statutory text,'" which is "no longer a tenable approach to statutory construction."
Lopez v. River Oaks Imaging & Diagnostic Grp., Inc., 542 F. Supp. 2d 653 (S.D. Tex. 2008). The plaintiff alleged that she was subjected to sex discrimination when the employer rescinded its job offer after learning that she was transgender. Denying the employer's motion for summary judgment, the court concluded that the plaintiff's claim was actionable as sex discrimination under Title VII on the theory that she failed to comport with the employer's notions of how a male should look. A finder of fact might reasonably conclude that the employer's statement that the job offer was rescinded because she had "misrepresented" herself as female reflected animus against individuals who do not conform to gender stereotypes.
Mitchell v. Axcan Scandipharm, Inc., No. 05-243, 2006 WL 456173, at *2 (W.D. Pa. 2006). Plaintiff alleged sex-based harassment and termination in violation of Title VII after the employer learned that plaintiff had been diagnosed with gender identity disorder and plaintiff began presenting at work as a female after having presented as a male during the first four years of employment. Denying the employer's motion to dismiss, the court held that because the complaint "included facts showing that his failure to conform to sex stereotypes of how a man should look and behave was the catalyst behind defendant's actions, plaintiff has sufficiently pleaded claims of gender discrimination."
Tronetti v. TLC HealthNet Lakeshore Hosp., No. 03-cv-375E, 2003 WL 22757935, at *4 (W.D.N.Y. 2003). Relying on the reasoning in Schwenck v. Hartford, 204 F.3d 1187, 1201-02 (9th Cir. 2000), the court ruled that plaintiff's sex discrimination claims of hostile work environment harassment and discriminatory discharge arising from her transition and sex reassignment surgery were actionable under Title VII, based on factual allegations that she was discriminated against for "failing to act like a man." SeealsoDoe v. United Consumer Fin. Servs., No. 1:01-cv-1112, 2001 WL 34350174, at *2-5 (N.D. Ohio 2001).
Creed v. Family Express Corp., 101 Fair Empl. Prac. Cas. (BNA) 609, 2007 WL 2265630 (N.D. Ind. Aug. 3, 2007). The plaintiff, a transgender female, alleged facts permitting an inference that she was terminated because of gender stereotypes; specifically, that she was perceived by her employer to be a man while employed as a sales associate and was fired for refusing to present herself in a masculine way. SeealsoHunter v. United Parcel Serv., 697 F.3d 697 (8th Cir. 2012) (affirming summary judgment for the employer under both Title VII and state law, the court did not rule that such discrimination was not actionable under Title VII, but rather that there was no evidence that the prospective employer knew or perceived that plaintiff was transgender during the job interview, and therefore a prima facie case of sex discrimination was not established).
Miles v. New York Univ., 979 F. Supp. 248, 249-50 (S.D.N.Y. 1997). Noting that the phrase "on the basis of sex" in Title IX is interpreted in the same manner as similar language in Title VII, the court held that a transgender female student could proceed with a claim that she was sexually harassed "on the basis of sex" in violation of Title IX.
Federal Court Decisions Supporting Coverage of Sexual Orientation-Related Discrimination as Sex Discrimination
Hively v. Ivy Tech Cmty, Coll. of Ind., __ F.3d __, 2017 WL 1230393 (7th Cir. Apr. 4, 2017) (en banc). In an 8-3 en banc decision, the Seventh Circuit agreed with the EEOC that Title VII's prohibition on sex discrimination incorporates a prohibition on sexual orientation discrimination, overruling its contrary prior precedent. Chief Judge Wood, writing for the majority, first relied on the "comparative method" of analysis, reasoning that "Hively alleges that if she had been a man married to a woman . . . and everything else had stayed the same, Ivy Tech would not have refused to promote her and would not have fired her. . . .This describes paradigmatic sex discrimination." The majority also relied upon the gender-stereotyping theory articulated in Price Waterhouse: "Viewed through the lens of the gender non-conformity line of cases," the majority said, "Hively represents the ultimate case of failure to conform to the female stereotype (at least as understood in a place such as modern America, which views heterosexuality as the norm and other forms of sexuality as exceptional): she is not heterosexual." Next, the majority relied on the "associational theory," likening discrimination because of same-sex relationships to discrimination because of mixed-race relationships. Finally, the majority pointed to the "backdrop" of the Supreme Court's decisions regarding sexual orientation. Tracing the evolution of case law from Romer v. Evans, 517 U.S. 620 (1996), through Obergefell v. Hodges, 135 S. Ct. 2584 (2015), the majority described an evolving sense that laws "?burden[ing] the liberty of same-sex couples . . . abridge central precepts of equality.'" Judge Posner joined the majority opinion but wrote separately to argue that more than 50 years after its enactment, Title VII "invites an interpretation that will update it to the present," observing that "[n]othing has changed more in the decades since the enactment of the statute," he said, "than attitudes toward sex," and concluding that "[t]he compelling social interest in protecting homosexuals (male and female) from discrimination justifies an admittedly loose 'interpretation' of the word 'sex' in Title VII to embrace homosexuality . . . ." Two other concurring judges joined the bulk of the majority opinion, but not its reliance on the "backdrop" of Supreme Court opinions regarding sexual orientation, and wrote separately to emphasize that "[o]ne cannot consider a person's homosexuality without also accounting for their sex" because sexual orientation discrimination involves discriminating against a woman because she is (a) a woman, who is (b) sexually attracted to women, and therefore sexual orientation discrimination is necessarily motivated in part by the employee's sex. The three dissenting judges criticized the majority for "deploy[ing] a judge-empowering, common-law decision method . . . [producing] a statutory amendment courtesy of unelected judges," reasoning that courts must interpret a statute "as a reasonable person would have understood it at the time of enactment."
Two other appellate courts, in rulings by divided three-judge panels, have recently reached the opposite conclusion, finding that they were bound by circuit precedent disallowing sexual orientation discrimination claims under Title VII; however, there were extensive separate opinions written in each case reasoning that the older precedent should be overturned. SeeAnonymous v. Omnicom Grp., Inc., 2017 WL 1130183 (2d Cir. Mar. 27, 2017) (concurring, two judges extensively critiqued the circuit precedent disallowing Title VII sexual orientation discrimination claims, and endorsed all three rationales set forth by the EEOC in Baldwin); Evans v. Ga. Reg'l Hosp., 2017 WL 943925 (11th Cir. Mar. 10, 2017), pet. for reh'g en banc filed (Mar. 31, 2017) (ruling that the sexual orientation discrimination is not actionable but the claim could proceed because the facts supported a permissible Title VII claim of sex discrimination based on gender nonconformity; dissenting, one judge reasoned that plaintiff's sexual orientation discrimination claim should also have been permitted to proceed, because when a woman alleges "she has been discriminated against because she is a lesbian, she necessarily alleges that she has been discriminated against because she failed to conform to the employer's image of what women should be - specifically, that women should be sexually attracted to men only").
Muhammad v. Caterpillar Inc., 767 F.3d 694 (7th Cir. Sept. 9, 2014, as amended on denial of reh'g, Oct. 16, 2014). Plaintiff alleged that hostile work environment harassment relating to his perceived sexual orientation was sex-based harassment in violation of Title VII. Affirming the district court's grant of summary judgment to the employer, the appellate court ruled that the employer took prompt remedial action once on notice of the harassment. As urged by the EEOC in an amicus brief filed in connection with plaintiff's petition for rehearing, the court denied the petition but amended its original decision to delete language that had stated sexual orientation-related discrimination claims are not actionable under Title VII.
Latta v. Otter, 771 F.3d 456 (9th Cir. 2014). The Ninth Circuit Court of Appeals held that statutes and constitutional amendments in Idaho and Nevada prohibiting same-sex marriages and refusing to recognize same-sex marriages validly performed in other states violated the Equal Protection Clause. The opinion of the court held that the laws were invalid as they discriminated on the basis of sexual orientation without sufficient justification. It also noted that "the constitutional restraints the Supreme Court has long imposed on sex-role stereotyping . . . may provide another potentially persuasive answer to defendant's theory." Id. at 474. A concurrence by Judge Berzon focused exclusively on the sex discrimination argument. Her opinion stated that she would have found that the Idaho and Nevada laws unlawfully discriminated on the basis of sex as, among other reasons, "the social exclusion and state discrimination against lesbian, gay, bisexual, and transgender people reflects, in large part, disapproval of their nonconformity with gender-based expectations." Id. at 495.
Boutillier v. Hartford Pub. Schs., No. 3:13-cv-01303, 2016 WL 6818348 (D. Conn. Nov. 17, 2016). Plaintiff, an elementary school teacher, alleged that discrimination against her based on her sexual orientation violated Title VII's sex discrimination prohibition. The court denied the employer's motion for summary judgment, citing the pendency of the issue before the circuit's appellate court and mixed circuit precedent, as well as arguments it found persuasive in support of plaintiff's claim. The court reasoned that Title VII's plain language as well as precedent supported plaintiff's claim, concluding that "straightforward statutory interpretation and logic dictate that sexual orientation cannot be extricated from sex; the two are necessarily intertwined in a manner that, when viewed under the Title VII paradigm set forth by the Supreme Court, place sexual orientation discrimination within the penumbra of sex discrimination." SeealsoBoutillier v. Hartford Pub. Schs., 2014 WL 4794527 (D. Conn. Sept. 25, 2014) (denying employer's motion to dismiss).
EEOC v. Scott Med. Health Ctr., P.C., __ F. Supp. 3d __, 2016 WL 6569233 (W.D. Pa. Nov. 4, 2016). The Commission alleged that harassment and constructive discharge based on the sexual orientation of a teleworker was actionable as sex discrimination under Title VII. Denying the employer's motion to dismiss, the court held that "Title VII's 'because of sex' provision prohibits discrimination on the basis of sexual orientation." The court explained: "There is no more obvious form of sex stereotyping than making a determination that a person should conform to heterosexuality. As the EEOC states, "[d]iscriminating against a person because of the sex of that person's romantic partner necessarily involves stereotypes about 'proper' roles in sexual relationship-that men are and should only be sexually attracted to women, not men." The court stated that in its view, a line between sex discrimination and sexual orientation discrimination is "a distinction without a difference. Forcing an employee to fit into a gendered expectation-whether that expectation involves physical traits, clothing, mannerisms or sexual attraction-constitutes sex stereotyping and, under Price Waterhouse, violates Title VII." The court concluded that such discrimination, "based upon nothing more than the aggressor's view of what it means to be a man or a woman, is exactly the evil Title VII was designed to eradicate."
Winstead v. Lafayette Cty. Bd. of Cty. Comm'rs, 197 F. Supp. 3d 1334 (N.D. Fla. 2016). Employee of county emergency medical services department brought Title VII sex discrimination claim alleging discrimination based on sexual orientation or perceived sexual orientation. Denying the employer's motion to dismiss, the court explained that it found persuasive the sex stereotyping rationale articulated in the EEOC's decision in Baldwin v. Dep't of Transportation, EEOC Appeal No. 0120133080 (July 15, 2015), and observed: "To hold that Title VII's prohibition on discrimination 'because of sex' includes a prohibition on discrimination based on an employee's homosexuality or bisexuality or heterosexuality does not require judicial activism or tortured statutory construction. It requires close attention to the text of Title VII, common sense, and an understanding that '[i]n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes." (quoting Manhart, 435 U.S. at 707 n.13).
Videckis v. Pepperdine Univ., 150 F. Supp. 3d 1151 (C.D. Cal. 2015). Pepperdine University filed a renewed motion to dismiss plaintiff's Title IX claim, stating that the plaintiff alleged sexual orientation discrimination and not sex discrimination. The district court denied the motion, explicitly holding that "sexual orientation discrimination is a form of sex or gender discrimination." The court cited with approval the Commission's decision in Baldwin v. Dep't of Transportation, EEOC Appeal No. 0120133080 (July 15, 2015), explaining that sexual orientation discrimination is sex discrimination "because it involved treatment that would not have occurred but for the individual's sex; because it was based on the sex of the person(s) the individual associates with; and/or because it was premised on the fundamental sex stereotype, norm, or expectation that individuals should be attracted only to those of the opposite sex."
Isaacs v. Felder, 143 F. Supp. 3d 1190 (M.D. Ala. 2015). Granting the employer's motion for summary judgment on plaintiff's Title VII claim due to insufficient evidence of discriminatory intent on the facts of the case, the court nevertheless explicitly rejected arguments that sexual orientation discrimination cannot be challenged under Title VII: "This court agrees instead with the view of the Equal Employment Opportunity Commission that claims of sexual orientation-based discrimination are cognizable under Title VII. In [Baldwin], the Commission explains persuasively why 'an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII' � Particularly compelling is its reliance on Eleventh Circuit precedent [prohibiting discrimination based on a protected characteristic because of a personal association]. Cf. Parr v. Woodmen of the World Life Ins. Co., 791 F.2d 888, 892 (11th Cir. 1986) ('Where a plaintiff claims discrimination based upon an interracial marriage or association, he alleges, by definition, that he has been discriminated against because of his race [in violation of Title VII].').' �.To the extent that sexual orientation discrimination occurs not because of the targeted individual's romantic or sexual attraction to or involvement with people of the same sex, but rather based on her or his perceived deviations from 'heterosexually defined gender norms,' this, too, is sex discrimination, of the gender-stereotyping variety �. SeealsoLatta v. Otter, 771 F.3d 456, 486 (9th Cir. 2014) (Berzon, J., concurring) ('The notion underlying the Supreme Court's anti-stereotyping doctrine in both Fourteenth Amendment and Title VII cases is simple, but compelling: '[n]obody should be forced into a predetermined role on account of sex,' or punished for failing to conform to prescriptive expectations of what behavior is appropriate for one's gender. See Ruth Bader Ginsburg, 'Gender and the Constitution,' 44 U. Cin. L.Rev. 1, 1 (1975)."
Strong v. Grambling State Univ., 159 F. Supp. 3d 697 (W.D. La. 2015). The court analyzed on the merits plaintiff's claim that he was subject to sex discrimination in violation of Title VII based on his "gender status as heterosexual" because "women and homosexuals earn higher salaries than he does and receive pay increases where he does not." Granting the employer's motion for summary judgment, the court found there was insufficient evidence to support an inference of discriminatory intent.
Hall v. BNSF Ry. Co., 2014 WL 4719007 (W.D. Wash. Sept. 22, 2014). Denying an employer's motion to dismiss a Title VII sex discrimination claim challenging the employer's policy of providing health insurance coverage for employees' legally married opposite-sex spouses but not same-sex spouses, the court found that the allegations were sufficient to allege discrimination based on the sex of the employee.
Terveer v. Billington, 34 F. Supp. 3d 100 (D.D.C. 2014). Denying the employer's motion to dismiss the plaintiff's Title VII sex discrimination claims for denial of promotion and harassment because of non-conformance with sex stereotypes, the court found sufficient the plaintiff's allegations that he is "a homosexual male whose sexual orientation is not consistent with the Defendant's perception of acceptable gender roles," that his "status as a homosexual male did not conform to the Defendant's gender stereotypes associated with men [at his workplace]," and "his orientation as homosexual had removed him from [his supervisor's] preconceived definition of male."
Koren v. Ohio Bell Tel. Co., 894 F. Supp. 2d 1032 (N.D. Ohio 2012). Denying defendant's motion for summary judgment where plaintiff alleged his supervisor discriminated against him based on sex stereotypes because he is married to a man and took his husband's last name, the court held: "That is a claim of discrimination because of sex." (emphasis in original).
Heller v. Columbia Edgewater Country Club, 195 F. Supp. 2d 1212, 1224 (D. Or. 2002). In a Title VII sex harassment case brought by a lesbian employee who was subjected to negative comments about her sex life, the court stated that the belief that men or women should only be attracted to or date persons of the opposite sex constitutes a gender stereotype. "If an employer subjected a heterosexual employee to the sort of abuse allegedly endured by Heller-including numerous unwanted offensive comments regarding her sex life-the evidence would be sufficient to state a claim for violation of Title VII. The result should not differ simply because the victim of the harassment is homosexual." In this case, the court held, a jury could find that [the manager] repeatedly harassed (and ultimately discharged) Heller because Heller did not conform to Cagle's stereotype of how a woman ought to behave. Heller is attracted to and dates other women, whereas Cagle believes that a woman should be attracted to and date only men."
Centola v. Potter, 183 F. Supp. 2d 403 (D. Mass. 2002). In dicta, the court explained: "Sexual orientation harassment is often, if not always, motivated by a desire to enforce heterosexually defined gender norms. In fact, stereotypes about homosexuality are directly related to our stereotype about the proper roles of men and women."
It is therefore important that NHS bodies ensure that they have adequate training and policies in place for the prevention of discrimination against transgender employees or service users.
The two key pieces of legislation that protect transsexual people are the Equality Act 2010 (EqA 2010) and the Gender Recognition Act 2004 (GRA 2004).
The Equality Act 2010
Discrimination under the EqA 2010
The EqA 2010 provides legal protection from discrimination and harassment. Gender reassignment is one of the nine protected characteristics covered by the Act. A person has the protected characteristic of gender reassignment if that person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning their sex by changing physiological or other attributes of sex.
Under the Act, a reference to a person who has the protected characteristic of gender reassignment is a reference to a transsexual person. Therefore, a woman making the transition to being a man and a man making the transition to being a woman both share the characteristic of gender reassignment.
A key point to note about the definition of gender reassignment under the EqA 2010, is that a person who ‘is proposing to undergo’ the process of changing their sex is protected i.e. they need not have undertaken any actual steps towards the process of transitioning. Further, a person living in the opposite gender without having undergone any medical procedures will be protected. Unlike earlier legislation, there is no requirement to be under medical supervision to qualify for protection under the EqA 2010.
There are five types of prohibited discrimination in respect of gender reassignment:
- Direct discrimination – when a transsexual person is treated less favourably than others because of gender reassignment
- Indirect discrimination – where a transsexual person is particularly disadvantaged by a provision, criterion or practice which applies to everyone
- Harassment – when unwanted conduct related to gender reassignment causes an intimidating, hostile, humiliating or offensive environment for that person
- Victimisation – when a person is subjected to a detriment because they have made or supported a complaint about gender reassignment discrimination
- Absences from work – where an employee is treated less favourably in relation to absences from work because of gender reassignment. This is the only type of prohibited discrimination specific to transsexual people
One issue that employers are likely to face in relation to transsexual employees is use of single-sex facilities. For example, it is likely, and understandably so, that person will want to use the toilet facilities of the gender to which they are transitioning. In the leading authority on this issue Croft -v- Royal Mail Group plc , the Court of Appeal upheld a decision of an employment tribunal that it was not discrimination to require a pre-operative male to female transsexual employee to use the disabled toilet as opposed to the female toilet facilities during the transition process.
However, the approach in this case should not be regarded as best practice. The recruitment and retention of transgender staff guidance issued by the Government Equalities Office (GEO) Guide states that a trans person should be free to select the facilities appropriate to the gender in which they present and that when a trans person starts to live in their acquired gender role on a full-time basis they should have the right to use the facilities for that gender. Further, the Department of Health Guidance for NHS Trusts sets out that it is not good practice to require a transsexual person to use the disabled facilities and it is not acceptable to require a transsexual person to use the facilities of their assigned gender.
Exceptions: when gender reassignment discrimination may be lawful
Gender reassignment discrimination may be permitted in certain limited circumstances. The EqA 2010 provides for an ‘occupational requirement’ exception that employers can rely on in discrimination claims. This enables employers, in limited circumstances, to require that, having regard to the nature or context of the work, only people who are not transsexuals can do the job. The explanatory notes in the EqA 2010 give the following example of an occupational requirement; ‘a counsellor working with victims of rape might have to be a woman and not a transsexual person, even if she has a gender recognition certificate, in order to avoid causing victims further distress.’ This may also apply to NHS staff employed to help victims of rape or other sexual assault.
Application to the NHS
In addition to NHS employees, patients must not be subjected to discrimination by NHS Trusts. The EqA 2010 prohibits discrimination by a service provider (concerned with the provision of a service to the public) against a person requiring the service. Therefore, NHS trusts must not discriminate against transsexual patients because they have the protected characteristic of gender reassignment.
However, there is an exception in the Act for single-sex only services (for example, a group counselling session provided only for female victims of sexual assault) but NHS trusts must be certain that the provision of separate services is a proportionate means of achieving a legitimate aim.
NHS bodies must also have regard to the Public Sector Equality Duty set out in Section 149 EqA 2010, which sets out that they must have due regard to eliminating discrimination prohibited by the EqA 2010 and advancing equality of opportunity and fostering good relations between those who share a protected characteristic and people who do not share it.
Gender Recognition Act 2004
The Gender Recognition Act 2004 (the Act) allows transsexual people to gain legal recognition of their acquired gender by registering for a Gender Recognition Certificate (GRC). The application is made to the Gender Recognition Panel who will determine whether a GRC should be issued on the basis that the applicant has lived in their acquired gender for two years and intends to live the acquired gender until death. An applicant does not have to have had gender reassignment surgery, but have been diagnosed as gender dysphoric. Where a full GRC has been issued to a person, their gender becomes for all purposes the acquired gender.
Prohibition on disclosure of information
The Act has important implications for NHS trusts, particularly in relation to the provisions on prohibition of disclosure of information relating to a person’s application for a GRC or, if a GRC is issued, their previous gender. Under section 22 of the Act, it is a criminal offence for a person who has acquired, in an official capacity, protected information regarding an individual’s gender identity to disclose that information to any other person. This clearly affects NHS bodies as employers and in the supply of services to the public, as they are likely to acquire such information in relation to their employees or patients.
An example provided by the workplace and gender reassignment: Guide for staff and managers (a:gender Guide) is of someone working in HR with access to an employee's personal file, disclosing the fact that the employee was born a different gender, without the employee's prior consent.
There are a number of defences to this prohibition set out in section 22(4) of the Act. These include where the information does not enable that person to be identified and where the person has agreed to the disclosure of the information.
In addition, there is a further defence which will have particular importance to NHS bodies as service providers. The Gender Recognition (Disclosure of Information) (England, Wales and Northern Ireland) (No2) Order 2005 provides a defence in relation to disclosure for medical purposes. It will not be an offence under section 22 of the Act to disclosure protected information if the disclosure is made to a health professional, for medical purposes, and the person making the disclosure reasonably believes that the subject has given consent to the disclosure or cannot give such consent.
Practical considerations for NHS bodies
The a:gender Guide states that ‘it is the antithesis of the intentions of the privacy provision included in the GRA 2004 to ask or expect an individual to evidence they have gender recognition. Given the wider privacy protection applicable to all, it is best practice to assume any transsexual person has gender recognition and treat them accordingly’.
Care should be taken to use appropriate names and terminology in HR and patient records in relation to transsexual people. Where a person is transgender, it is important not to refer to this fact in patient or HR records unless the person has consented to it. In respect of employees, this may involve issuing them with a new set of HR records.
In relation to transgender patients, NHS/Department of Health guidance is that they should be issued with a new set of medical records to reflect their new gender status. NHS trusts may find themselves in a difficult position when there are medical reasons why a transgender patient’s previous gender needs to be referred to. In these circumstances, the medical professionals should seek consent from the patient for their gender history being recorded in their notes and steps should be taken to ensure that access to those notes is limited to those who need to be aware of the patient’s gender history for clinical reasons.
Department of Health guidance recommends that all staff are trained on these issues in relation to transgender patients and employees. Our specialist employment team can provide training on the legislation in this area and its implications for NHS bodies.