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Gender Discrimination is Sex Discrimination

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The issue of transgender restrooms in public schools has been in the news recently.  Is gender discrimination protected under Title VII?  The United States Supreme Court was presented with this issue, but remanded the case back to the U.S. Court of Appeals for the Fourth Circuit, instead of tackling this emotionally-charged controversy. This topic has been a deeply divisive issue in many states across the country. For clarity, being “transgender” means that the person’s internal gender identity is different from the sex that the person was assigned at birth (e.g., the sex listed on the birth certificate).

Title IX is a federal law that prohibits sex discrimination and sexual harassment in public schools. The issue raised is whether Title IX extends to transgender students. On one side, the argument is that transgender students should use the bathrooms which correspond with their gender identity. The other side wants the transgender students to use the bathrooms which correspond to the gender of their birth.

The EEOC ruled that “intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination ‘based on … sex,’ and such discrimination therefore violates Title VII.” This EEOC echoes an analogy made in Schroer v. Billington, 577 F. Supp. 2d 293 (D.D.C. 2008), a case which involved discrimination against man who was transitioning to woman. In that case, the court held that Ms. Schroer was entitled to protection under Title VII because she was discriminated against because of sex. The judge in that case made an analogy to religious discrimination: If an employer fired an employee for converting from Christianity to Judaism, and the employer defended its actions by claiming that they don’t discriminate against Christians or Jews, just against employees who convert, everyone would agree that discriminating against a convert was discrimination because of religion.

In cases where a man changes from male to female, that person frequently faces discrimination because of his decision to stop presenting himself as a man, and to begin appearing as a woman. Some courts have traditionally carved such persons out from the protection of Title VII by concluding that ‘trans-sexuality’ is an unprotected trait. The focus is on the label assigned to the person, rather than on the person’s sex. The Equal Protection Clause of the Constitution protects similarly situated individuals from such invidious discrimination.

Recognizing that gender identity is an intrinsic part of a person’s identity and everyday life, the Department of Labor’s Occupational Safety and Health Administration (OSHA) has weighed in with guidance. OSHA states that “[r]estricting employees to using only restrooms that are not consistent with their gender identity, or segregating them from other workers by requiring them to use gender-neutral or other specific restrooms, singles those employees out and may make them fear for their physical safety. Bathroom restrictions can result in employees avoiding using restrooms entirely while at work, which can lead to potentially serious physical injury or illness.”