Federal Protection Against Transgender Discrimination
The White House recently announced that the Obama Administration endorsed an amendment to the Civil Rights Act of 1964 to protect gay and transgender Americans. Title VII of the Civil Rights Act of 1964 currently prohibits discrimination based on race, color, religion, sex, or national origin. The amendment, entitled the Equality Act, would also ban discrimination on the basis of sexual orientation and gender identity.
Some have argued that transgender individuals are already protected against discrimination by the 1964 Civil Rights Act. In the 1989 decision in Price Waterhouse v. Hopkins, the Supreme Court prohibited discrimination on “sex-stereotyping,” finding that it was illegal to terminate a woman for not acting feminine enough. This prohibition on “sex-stereotyping” logically extends to transgender people if they do not behave according to the stereotypes of the sex assigned to them at birth.
Citing the Supreme Court’s decision in Price Waterhouse, the Eighth Circuit has stated that gender stereotyping of transgender individuals violates Title VII when it influences employment decisions. There has also been some success with this argument banning sex discrimination in health services. Rumble v. Fairview Health Services (finding that sex discrimination includes discrimination on the basis of transgender status). Like many other federal circuit courts, however, the Eighth Circuit has so far refused to extend protection under Title VII to gay and lesbian individuals based as “sex” discrimination.
The law in Minnesota is ahead of its time. While federal anti-discrimination law does not yet explicitly ban discrimination on the basis of sexual orientation or gender identity, remarkably, the Minnesota Human Rights Act (“MHRA”) has banned such discrimination since 1993. The MHRA explicitly prohibits discrimination in employment, housing, public accommodations, public services, and education based on a person’s sex, sexual orientation. The term sexual orientation is broadly defined in the statute to include both gay and transgender individuals.
The lawyers at Schaefer Halleen are monitoring developments in this fast-changing area of federal law, as well as maximizing the protections under state law, regarding workplace issues involving the LGBT community.
