In a recent adjudication, the EEOC concluded that discrimination against a transgendered individual is sex discrimination. To many readers, this conclusion may seem obvious, but in fact, most courts that have considered the anti-discrimination rights of transgendered employees have taken a narrower approach.
Under that narrower approach, transgender discrimination is only actionable if the employer acted on sex stereotypes to punish gender non-conformity. But the EEOC takes the position that any sort of transgender discrimination is sex discrimination, because it inherently involves taking gender—and therefore sex—into account. This is true even if the employer takes an action that simply reflects animus against transgender individuals or a desire to exclude them from the workplace, rather than a concern, specifically, about gender non-conformity.
As I will argue in this column, the EEOC has the better of the argument. Its ruling takes an honest, straightforward look at the nature of transgender discrimination and the natural scope of Title VII’s broad prohibition of sex discrimination in employment.
To read the full article, visit verdict.justia.com.