Starting in 1975, federal sex discrimination complaints by transgender employees were routinely dismissed by the courts on the basis that their discrimination was based on "sex change," rather than "sex." Since 2001, however, federal courts have increasingly recognized that discrimination against employees based on transgender identity can, in certain circumstances, violate Title VII, the federal statute that prohibits workplace discrimination based on sex.
However, until now, the United States Equal Employment Commission, the federal agency that oversees all federal discrimination complaints, has not specifically made a ruling that transgender discrimination is per se sex discrimination.
In Mia Macy v. Holder, released yesterday, the EEOC Commissioners voted 5-0 that discrimination against a person based on their transgender identity is sex discrimination. The California-based Transgender Law Center represented Ms. Macy. Kudos to TLC and Ms. Macy.
The Commission's ruling comes at a preliminary stage in the proceeding, and is not a factual finding that discrimination existed in Ms. Macy's case. Ms. Macy had filed a claim, alleging that she had applied to obtain a civilian contractor job with a crime lab of the Federal Bureau of Alcohol, Tobacco and Firearms. She had been told by the Director of the crime lab at the end of December 2010 that, based on her experience and credentials as a police detective, she could have the job, assuming her background check was satisfactory. She received the paperwork necessary to start the job. She was still waiting for the background check on March 29, 2011 (those can take weeks or months to complete), when she informed the Director that she was transitioning from male to female. A few days later, she received an email from the contractor's director of operations that the position was being cut due to budget restrictions. But when she contacted the Agency's Equal Employment Opportunity counselor, she was told that the position was not, in fact, cut, but that someone else had been hired because their background check was farther along. Ms. Macy felt this reason was given as a pretext for discrimination against her based on her transition.
She filed a complaint with the Agency's EEO office. However, that office informed her that claims based on gender identity discrimination cannot be brought before the EEOC under Title VII (which is untrue), but had to be adjudicated under the rules of the Department of Justice, which allows for fewer remedies, and does not include the right to be heard before an EEOC Administrative Judge or the right to appeal the final agency decision to the full Commission. Ms. Macy's attorneys appealed this decision to the Commission.
The EEOC ruled in favor of Ms. Macy, and issued a ruling explaining its decision, which you can view here.
The Commission's ruling essentially tracked all of the various court rulings in favor of transgender employees. Of particular note, in my opinion, is the fact that the EEOC opinion particularly called about the ruling in Schroer v. Billington, which specifically found that not only is discrimination based on transgender status a form of sex stereotyping, but that it is sex discrimination per se. It used the Schroer analogy to religion, noting that discrimination because of changing religion would certainly be religious discrimination, and so discrimination because of a change in sex is also sex discrimination.
For fans of technical matters, I note that the decision was was not voted on by the full 5-member Commission. Rather, Commission members could have objected, but none did. A vote by the full Commission would have been wonderful, because it would have demonstrated their full backing of this decision. Nonetheless, the decision is still binding on all EEOC offices.
UPDATE 4/26/12: The Transgender Law Center inquired of the EEOC regarding the issue of voting by the Commissioners on this decision. The following response was received: "The Macy decision, like all Federal Sector decisions that are reviewed by the Commission, was circulated to all of the Commissioners for notice and comment. The Commissioners have the opportunity during this period to register an objection and place it on the agenda for a vote. In this case there was no objection, thus there was no opportunity for the Commission to vote, and the decision was approved by the full Commission."
Ms. Macy can now go forward with her complaint under Title VII, and I wish her and the Transgender Law Center much luck in pursuing that elusive goal of justice.
(Discrimination clipart via BigStock)