For years, various governmental agencies have argued that nondiscrimination protections based on “sex” should also protect transgender people from discrimination based on their gender identity. Last week’s guidance from the Obama administration regarding transgender students and patients and the Department of Justice’s lawsuit against North Carolina were the most significant embraces of that interpretation, but it has been widely decried by Republican leaders across the country.
But there’s a really simple legal explanation for making sense of gender identity as falling under the umbrella of “sex,” and it actually predates any agency’s adaptation of that interpretation. Back in 2004, Diane Schroer applied for a job at the Library of Congress as a terrorism research analyst around the same time that she was beginning her gender transition. She was told explicitly that she was the top candidate for the job, but when she informed her would-be supervisors that she would be transitioning prior to starting in the position, they rescinded her offer.
In September, 2008 U.S. District Judge James Robertson ruled that Schroer had experienced unlawful discrimination under Title VII’s protections based on sex. The facts were clear that the Library of Congress had refused the job because of Schroer’s transition, and Robertson heard expert testimony from both sides about the nature of gender identity. He ultimately decided, however, that it was “unnecessary” for the court to pontificate on the nature of trans identities to determine that she had suffered sex discrimination. Here was his argument:
Imagine that an employee is fired because she converts from Christianity to Judaism. Imagine too that her employer testifies that he harbors no bias toward either Christians or Jews but only “converts.” That would be a clear case of discrimination “because of religion.” No court would take seriously the notion that “converts” are not covered by the statute. Discrimination “because of religion” easily encompasses discrimination because of a change of religion.
But in cases where the plaintiff has changed her sex, and faces discrimination because of the decision to stop presenting as a man and to start appearing as a woman, courts have traditionally carved such persons out of the statute by concluding that “transsexuality” is unprotected by Title VII. In other words, courts have allowed their focus on the label “transsexual” to blind them to the statutory language itself.
If religious conversion is protected under “religion,” then gender transition is protected under “sex.”
The Department of Justice’s arguments in its lawsuit against North Carolina are no less meaningful. Gender identity does have biological components — such as sexual differentiation of the brain — and a “person’s gender identity is the primary factor in terms of establishing that person’s sex.” The increasing amount of knowledge available about what transgender people experience, including the unchangeable and vital nature of their identities, only strengthens the argument that they should be protected from discrimination.
The Equal Employment Opportunity Commission (EEOC) was the first agency to embrace the interpretation that “sex” protections encompassed gender identity. That was in the landmark case of Macy v. Holder, in which the commission agreed that Mia Macy was unlawfully denied a job by the Bureau of Alcohol, Tobacco, Firearms and Explosives because she was transitioning — nearly identical circumstances to Schroer. But Macy’s victory only came four years later.