This year, in the case of Macy v. Holder, Appeal No. 0120120821 (EEOC Apr. 20, 2012), the U.S. Equal Employment Opportunity Commission (EEOC) ruled that transgendered persons are afforded protection from discrimination under Title VII of the Civil Rights Act of 1964 (Title VII).

Mia Macy, a transgender police detective in Phoenix, Arizona presented as a man when she applied for a position at the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) at its Walnut Creek crime laboratory. During the background check, she told the background investigator that she was in the process of transitioning from male to female. Shortly thereafter, ATF told her that due to federal budget reductions, the position at Walnut Creek was eliminated.

Macy approached an ATF Equal Employment Opportunity (EEO) counselor about her concerns pertaining to the elimination of the position.  The EEO counselor informed Macy that the position had not been eliminated, but that ATF instead hired another applicant who had been farther along in the background investigation.

Macy believed she was denied the position because she told the background investigator that she was in the process of transitioning from male to female.  Macy filed a complaint with the ATF and alleged that she was discriminated because of “sex, gender identity (i.e., transgender woman) and on the basis of sex stereotyping.” The ATF classified Macy’s complaint as one based on sexual orientation and gender identity, and not as sex discrimination.  As a consequence of ATF’s treatment of the complaint, under the Department of Justice’s rules, the EEOC had no jurisdiction over the complaint.  Macy appealed this complaint-processing decision to the EEOC.  The EEOC ruled in Macy’s favor.

In reaching its decision, the EEOC analyzed federal cases that have recognized that claims of discrimination based on gender identity stereotyping are covered under Title VII.  The EEOC found that Title VII’s protections against sex discrimination include gender discrimination in addition to discrimination on the basis of biological sex.  The protections encompassed “the cultural and social aspects associated with masculinity and femininity.”  The EEOC ruled that a transgender person who experiences discrimination based on gender identity may establish a prima facie case of sex discrimination through any number of different formulations (gender stereotyping, gender identity, etc.), which are all “simply different ways of describing sex discrimination.”  The EEOC also noted that applying Title VII to transgender individuals does not create a new “class” of protected individuals because discrimination against a transgender individual is, by definition, discrimination based on sex and therefore in violation of Title VII.

It is noteworthy that in recent years, some federal courts had already interpreted Title VII to protect transgender individuals against discrimination.  Although  Congress has not addressed the issue, in 2011 the California Legislature passed AB 887 which expressly states that the Fair Employment and Housing Act (“FEHA”) prohibits discrimination on the basis of gender, gender identity and gender expression.  Accordingly, in California, FEHA expressly prohibits transgender discrimination and harassment.

Training is advisable to ensure that supervisors and non-supervisory staff alike understand what it means to be transgender, and to ensure all employees enjoy a work environment free of discrimination or harassment.