Civil Rights Act and Gender Identity
Federal sex discrimination law, under Title VII of the Civil Rights Act of 1964, has historically been interpreted to exclude transgender workers. While some recent legal developments have challenged that understanding, protection for transgender workers under Title VII remains unsettled.
In 2004, the U.S. Court of Appeals for the Sixth Circuit decided that a transsexual woman could file suit under Title VII's prohibition on discrimination based on sex. In that case, Smith v. City of Salem, Ohio, the plaintiff was disciplined by her employer when she announced that she was beginning to transition from male to female. The court cited the U.S. Supreme Court's decision in Price Waterhouse v. Hopkins, holding discrimination based on a failure to conform to traditional sex stereotypes to be impermissible under Title VII, as grounds to permit a suit by a transgender plaintiff. The Sixth Circuit affirmed its conclusion regarding protections for some transgender workers under Title VII in 2005, in Barnes v. City of Cincinnati, the case of a transsexual policewoman discriminated against by the Cincinnati Police Department.
Other Courts of Appeals have not reviewed this issue, or have not revisited it since the adoption of Price Waterhouse, and it is unclear whether those courts would follow the reasoning of Smith and Barnes. As other federal courts continue to consider the issue, in Title VII and related contexts, the jurisprudence will continue to evolve.
