July 2012 Bar Bulletin
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July 2012 Bar Bulletin

Transgender Rights in the Workplace

By Stacie Foster


The rights of transgender individuals in the workplace were clarified this past spring when, for the first time, the Equal Employment Opportunity Commission (EEOC) provided guidance on the extent to which the Civil Rights Act's sex discrimination prohibition applies to transgender employees.1

On April 20, the EEOC ruled that a "complaint of discrimination based on gender identity, change of sex, and/or transgender status is cognizable under Title VII [of the Civil Rights Act]." The decision is binding on the EEOC, its 53 field offices and all federal departments and agencies.

The decision affirms a growing number of federal appellate and trial courts holding that gender-identity discrimination constitutes sex discrimination, whether based on Title VII or the constitutional guarantee of equal protection under the law.

In addition, the EEOC's interpretation of Title VII and other civil rights laws are given significant deference by federal courts. Thus, although the U.S. Supreme Court has not yet ruled on the question of whether transgender people are protected under Title VII's prohibition on sex discrimination, this decision offers a significant foreshadowing of such widespread protection.2

In the EEOC case Macy v. Holder, Mia Macy, a transgender woman, claimed she was denied employment with the Department of Alcohol, Tobacco, Firearms and Explosives (ATF) after the agency learned of her transition from male to female. On May 21, the Department of Justice (the parent agency of the ATF) announced it would not appeal the EEOC decision and would begin a review of her claims of discrimination by the agency.

The EEOC decision is critical to employers because it clarifies the obligation of employers not only to be aware of the rights of transgender individuals, but to be alert to discrimination against transgender individuals. Many employers have questions as to their obligations to transgender individuals and this article will attempt to answer some of those questions.


One of the first questions concerns terminology, in part because the language is changing rapidly. In general, transgender is an umbrella term, covering a wide range of identities, including cross-dressers, transsexuals and others whose sense of their gender does not match their physical sex characteristics. Transsexual is an older term, and is generally accepted to mean a person who desires to permanently live as the opposite sex from their birth sex, because their birth sex does not match their gender.3

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