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Transgender and Title VII: Time to Change?

By Darrell R. VanDeusen
August 31, 2004

If you have practiced employment law for more than a decade, you probably assume that Title VII does not cover transsexuals, transvestites or other transgendered individuals. It's simple: A lot of cases have held that “sex” discrimination does not extend beyond traditional notions of “male” and “female.” Besides, an individual's sexual orientation is not protected under Title VII, so why should the transgendered be protected?

Such an assumption is no longer necessarily valid. There appears to be a growing trend toward recognizing a cause of action for sex discrimination under Title VII when a transgendered employee suffers an adverse employment action. This development is grounded in the Supreme Court's decision in Price Waterhouse v. Hopkins, 420 U.S. 228 (1989), the case that found sex stereotyping can violate Title VII. Recently, in Smith v. City of Salem, Ohio, 369 F.3d 912 (6th Cir. 2004), the Sixth Circuit used the Price Waterhouse analysis to hold that a transitioning pre-operative transsexual could proceed with his claim of sex discrimination both because of sex stereotyping and because transgendered individuals are covered under the Act.

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