Transgender Discrimination

August, 2017





A little more than a year ago, the Pentagon lifted its ban on transgender people serving openly in the military.

However, on July 26, 2017, President Trump fired off the following tweet:

“ After consultation with my generals and military experts, please be advised that the United States government will not accept or allow transgender individuals to serve in any capacity in the U.S. military.  Our military must be focused on decisive and overwhelming victory and cannot be burdened with the tremendous medical costs and disruption that transgender[s] in the military would entail.”

The negative reaction to such tweet has come from some surprising sources.  In its article of July 27, 2017, the Society for Human Resource Management, which represents employers, states that Trump’s tweets may lead to workplace backlash and may be interpreted as encouragement to act in a discriminatory manner against transgender individuals at the workplace.

A management attorney with the firm Seyfarth Shaw in Chicago is quoted as stating that “The limited studies to date on health care costs associated with transgender employees show that the cost of providing such coverage is de minimus.”

Senator John McCain, the Arizona Republican senator, criticized the tweet, saying that the Department of Defense had decided to let transgender individuals stay in the military.

So, what’s the legal status of protection against transgender discrimination?

 Federal law:

 Under the federal Title VII of the Civil Rights Act of 1964, discrimination “because of sex” is prohibited.  But is discrimination against transgender individuals discrimination “because of sex?”

The U.S. Equal Employment Opportunity Commission interprets and enforces Title VII’s prohibition of sex discrimination as forbidding any employment discrimination based on gender identity or sexual orientation.  The Commission has taken the position that existing sex discrimination provisions in Title VII protect lesbian, gay, bisexual, and transgender, (“LGBT”), applicants and employees against employment bias.  But Title VII does not explicitly include sexual orientation or gender identity in its list of protected classes.  And because the courts have vacillated on the subject, it is likely the Supreme Court will have to decide the issue.

For example, in April of this year, the U.S. Seventh Circuit Court of Appeals ruled that “discrimination based on sexual orientation is a form of sex discrimination.  It was the first time a federal appeals court had extended Title VII to the LGBT community.  Hively v. Ivy Tech Community of Indiana, 853 F.3d 339 (7th Cir. 2017).

Our own Second Circuit Court of Appeals will be taking up the issue.

With two cases in 2000 and 2005, the Second Circuit ruled that Title VII cannot support claims of sexual orientation discrimination.  Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000); Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005).

However, the Second Circuit has agreed to revisit the issue with another case en banc.  Zarda v. Altitude Express, Inc., 855 F.3d 76 (2d. Cir. 2017).

Connecticut Law:  transgender discrimination is prohibited.

 While federal law may be moving to protection against transgender discrimination, Connecticut law is already there:

In Connecticut it is illegal for an employer to discriminate against an employment applicant or employee based upon these protected categories:

“race, color, religious creed, age, sex, gender identity or expression, marital status, national origin, ancestry, present or past history of mental disability, intellectual disability, learning disability or physical disability, including, but not limited to, blindness.”

Employers might want to consider reissuing their harassment prevention policies and implementing a transgender policy to send the message that discrimination against transgender employees will not be tolerated.


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