Evolving Science May Provide Coverage for Transgender Employees Under the ADA

For many years, transgender individuals have relied primarily on state anti-discrimination laws to bring claims of employment discrimination against employers. After the landmark 1989 Supreme Court case Price Waterhouse v. Hopkins made sex-stereotyping a viable claim for sex discrimination under Title VII, courts in a few Circuits ' notably the U.S. Courts of Appeal for the First, Sixth, Ninth and Eleventh Circuits ' have held that certain forms of discrimination against a person for being transgender is prohibited by Title VII under a Price Waterhouse theory, or equivalent federal laws. For purposes of this article, I will use the word “transgender” as an umbrella term to discuss individuals whose gender identity and/or expression is different than what society might expect based on their sex assigned at birth.

The Equal Employment Opportunity Commission (EEOC) took the position that Title VII prohibits discrimination against transgender individuals in its 2012 Macy v. Holder finding. The EEOC also promulgates guidance and regulations, which reference that it considers transgender as a protected status under Title VII. A new lawsuit posits an additional theory of discrimination protection for transgender employees, and due to a Statement of Interest filed by the government in that case, regardless of the outcome, the scope of federal protection for transgender individuals is poised to shift, dramatically.