Erin E. Clawson
Abstract
Title VII of the Civil Rights Act protects employees from discrimination “because of sex,” which the Supreme Court found includes gender and sex/gender stereotyping. The circuit courts, however, are split on whether discrimination against transgender people is “because of sex.” In the circuits that extend Title VII’s protection to transgender people, the courts differ as to whether a claim must be based on sex stereotyping or based on a person’s status as transgender or transitioning alone. This issue was recently granted certiorari by the Supreme Court.
Not only do the circuit courts conflict but government agencies disagree on this matter as well. In 2014, the Department of Justice considered discrimination against transgender people to be because of sex but rescinded this policy in 2017. Conversely, the Equal Employment Opportunity Commission regards discrimination based on transgender status as discrimination because of sex under Title VII.
Currently, no federal law exists that provides protections for transgender people in the workplace. Proposed acts that have aimed to provide protections have failed, due to their broad protections and conservative opposition. However, two states have passed laws that prevent against discrimination by the systematic misuse of one’s preferred pronouns, known as misgendering, but were met with claims of First Amendment free speech violations.
This Comment will first examine the concepts of sex, gender, gender identity, and gender expression, and their relation to the transgender community. Next, this Comment will discuss federal protections for transgender people, First Amendment rights in the workplace, and the Circuit Split. Finally, this Comment will recommend that the Supreme Court hold that Title VII protects transgender people based on (1) their status as transgender and (2) sex stereotyping under Price Waterhouse. Lastly, this Comment will propose a federal law that would protect transgender people from intentional misgendering discrimination in the workplace.