6th Circuit: Transgender Discrimination Is Sex Discrimination

The Sixth Circuit Court of Appeals recently held that a funeral home engaged in sex discrimination, in violation of Title VII of the Civil Rights Act, when it fired a transgender employee for expressing her intent to transition and begin presenting as female in the workplace.  In so deciding, the Sixth Circuit joins the Second and Seventh Circuits, which have also extended Title VII protection to various types of LGBTQ discrimination.

The transgender employee had filed a complaint with the Equal Employment Opportunity Commission (EEOC), which investigated and later brought suit against the funeral home, alleging Title VII violations including: (1) termination on the basis of the employee’s transgender status and her refusal to conform to sex-based stereotypes; and (2) administering a discriminatory clothing-allowance policy, which provided male—but not female—public-facing employees with work-appropriate clothing.

Reversing the lower court’s grant of summary judgment for the employer on the employee’s unlawful termination claim, the Sixth Circuit found that Title VII bars employment discrimination against transgender people, because transgender discrimination amounts to gender stereotyping and is per se sex discrimination—both of which are prohibited by Title VII.  The court stated that when employers discriminate “on the basis of transgender status,” they implicitly impose “stereotypical notions on how sexual organs and gender identity ought to align.”  Additionally, the panel wrote that transgender discrimination is per se sex discrimination, because a decision to fire a person based solely on transgender status is “motivated, at least in part, by the employee’s sex.”  The court also rejected the funeral home owner’s various “religious liberty” arguments in support of his actions, reasoning that allowing the transgender employee to remain employed would not infringe on a supervisor’s religious practice.  The panel emphasized the fact that the employee did not ask her employers to financially support her transition or demand that they change their beliefs—she simply sought to keep her job.

Companies in the financial services industry should pay attention to the issue of transgender discrimination as sex discrimination, because the line of decisions discussed above is relevant to the interpretation of laws prohibiting discrimination in lending and/or housing on the basis of sex.

The opinion in EEOC v. R.G. & G.R. Harris Funeral Homes, Inc. is accessible here.