Articles Tagged with Transgender rights

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Yesterday, 11 states sued the U.S. Government in a Texas federal court over recent guidance documents its agencies issued defining “sex” in various civil rights laws to include “gender identity.”  The suit is the latest in a widening legal battle over transgender rights — specifically the right of transgender people to use restrooms that accord with their gender identities.

The lawsuit challenges two recent documents from federal agencies.  On May 3, 2016, the EEOC released a fact sheet on bathroom access for transgender employees, which states that discrimination based on transgender status is sex discrimination under Title VII. On May 9, 2016 the U.S. Department of Justice (DOJ) sued North Carolina over a recently-passed law that required public employees and public school students to use bathrooms that correlate with the sex listed on their birth certificates, and an executive order that required cabinet agencies to use the same definition of “sex” in segregating their bathrooms. On May 13, 2016 the DOJ and U.S. Department of Education (DOE) issued a “Dear Colleague Letter” stating that “[t]he Departments treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations. This means that a school must not treat a transgender student differently from the way it treats other students of the same gender identity.” The lawsuit argues that these interpretations of Title VII and Title IX constitute a radical change in the law, and that the executive branch, through these two departments, cannot change the law in this way.

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I have written previously about the EEOC’s litigation on behalf of Aimee Stephens, whose employer—a Michigan funeral home—fired her when she announced that she was transitioning and would present as a woman at work in the future.  At ZDB we have continued to follow this potentially groundbreaking federal litigation in the Eastern District of Michigan.  In the most recent development, Magistrate Judge David R. Grand granted the EEOC’s motion for a protective order, seeking to prevent the defendant funeral home from violating Ms. Stephens’ privacy during the process of discovery in the case.  While, given the nature of the discovery sought, this was patently the right outcome, the judge’s order could (and, in my view, should) have provided more assurance to future transgender litigants that they will be protected from attempts to use discovery as a tool to invade their privacy and humiliate them.

The discovery requests at issue sought detailed disclosures on numerous personal matters totally irrelevant to the ultimate issue in the case (which, following the court’s decision on the funeral home’s motion to dismiss, is whether the funeral home fired Ms. Stephens because she did not conform to its sex- or gender-based preferences, expectations, or stereotypes).  Among those matters was Ms. Stephens’ medical history: the funeral home sought her medical and counseling records as well as asking whether she “currently has male sexual organs, including but not limited to, a penis and testicles”; whether she has had “any surgery performed to remove or modify any male sexual organs”; and whether she has undergone hormone therapy.  The funeral home also sought to pry into Ms. Stephens’ family life, asking for detailed information on any past marriages (including all pleadings from any prior divorce), her biological offspring, her communications with her family regarding her transition, her wife’s feelings about the transition, and the current state of her marriage.

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In September 2014, the EEOC filed its first employment discrimination lawsuits on behalf of transgender employees. (Rachel Stroup previously wrote about those suits, and related moves by the federal government to recognize antidiscrimination protection for transgender individuals, here.) The first of those suits, against an eye clinic, has settled; the clinic agreed to pay the employee $150,000 as well as to take specified proactive actions to avoid discrimination in the future. The second, EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., is a suit pending in the Eastern District of Michigan on behalf of a transgender employee, Amiee Stephens, whose employer, a funeral home, allegedly fired her when she informed it that she was undergoing a gender transition from male to female and intended to dress in appropriate business attire as a woman. That case has just survived the defendant’s motion to dismiss. The Court’s reasoning should encourage employees who believe that they are experiencing discrimination due to transgender status to stand up for their rights, but it also reveals continuing gaps in federal discrimination law that Congress should act to remedy.

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The United States Justice Department (DOJ) recently announced that it will interpret Title VII of the Civil Rights Act of 1964 as protecting transgender employees from discrimination in the workplace.  In a December 15, 2014 memo to U.S. Attorneys, Attorney General Eric Holder stated that he has “determined that the best reading of Title VII’s prohibition of sex discrimination is that it encompasses discrimination based on gender identity, including transgender status.”  The memo acknowledges that this interpretation constitutes an evolution of the DOJ’s thinking on the issue; as recently as 2006 the DOJ defended the Library of Congress’ decision to refuse to hire the most qualified candidate for a position upon learning that she was transgender.  This interpretation should influence all actions taken by the DOJ, both through its U.S. Attorneys, who defend the United States when it is a party in civil suits, and through its Employment Litigation Section which enforces Title VII against state and local governments.

The DOJ’s new Title VII interpretation brings it in line with various other federal entities’ recent interpretations of federal anti-discrimination law.  In 2011 the Office of Personnel Management issued a notice stating that the government’s policy of non-discrimination on the basis of sex in the federal workplace includes non-discrimination based on gender identity.  In 2012 the Equal Employment Opportunity Commission (EEOC) held that discrimination on the basis of gender identity is a form of discrimination on the basis of sex.  Most recently, in July of 2014 President Obama issued an executive order stating that discrimination based on gender identity is prohibited for purposes of federal employment and government contracting.  Previously the Department of Education and the Department of Justice had already determined that Title IX, the federal law that prohibits discrimination on the basis of sex in education, applies to gender identity claims brought by students.

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