Sensing something amiss (citing an EEOC opinion as primary foundation for federal law signals desperation), I looked into whether Title VII protects against discrimination on the basis of gender identity. After spending about thirty minutes researching at my local law library, I found the following cases, all of which hold that Title VII does not protect against discrimination on the basis of gender identity alone:
Johnston v. Univ. of Pittsburgh of Com. Sys. of Higher Educ. (Western District of Pennsylvania – 2015): “[N]early every federal court that has considered the question in the Title VII context has found that transgender individuals are not a protected class under Title VII.”
Lopez v. River Oaks Imaging & Diagnostic Grp., Inc. (Southern District of Texas – 2008): “Courts consistently find that transgendered persons are not a protected class under Title VII per se.”
Etsitty v. Utah Transit Auth. (10th Circuit – 2007): “[This Court] concludes discrimination against a transsexual based on the person’s status as a transsexual is not discrimination because of sex under Title VII.”
Sweet v. Mulberry Lutheran Home (Southern District of Indiana – 2003): “Discrimination on the basis of sex means discrimination on the basis of the plaintiff’s biological sex, not sexual orientation or sexual identity, including an intention to change sex.”
Oiler v. Winn-Dixie La., Inc. (Eastern District of Louisiana – 2002): “After a review of the legislative history of Title VII and the authorities interpreting the statute, the Court agrees… that Title VII prohibits employment discrimination on the basis of sex, i.e., biological sex. While Title VII’s prohibition of discrimination on the basis of sex includes sexual stereotypes, the phrase “sex” has not been interpreted to include sexual identity or gender identity disorders.”
Ulane v. E. Airlines, Inc. (7th Circuit – 1984): “While we recognize distinctions among homosexuals, transvestites, and transsexuals, we believe that the same reasons for holding that the first two groups do not enjoy Title VII coverage apply with equal force to deny protection for transsexuals.”
Sommers v. Budget Mktg., Inc. (8th Circuit – 1982): “Although this circuit has not previously considered the issue raised on this appeal, we are in agreement with the district court that for the purposes of Title VII the plain meaning must be ascribed to the term “sex” in absence of clear congressional intent to do otherwise. Furthermore, the legislative history does not show any intention to include transsexualism in Title VII”.
Powell v. Read’s, Inc. (District of Maryland – 1977): “A reading of [Title VII] to cover plaintiff’s [gender identity discrimination] grievance would be impermissibly contrived and inconsistent with the plain meaning of the words.”
Grossman v. Board of Education (District of New Jersey – 1975): “In the absence of any legislative history indicating a congressional intent to include transsexuals within the language of Title VII, the Court is reluctant to ascribe any import to the term “sex” other than its plain meaning. Accordingly, the Court is satisfied that the facts as alleged fail to state a claim of unlawful job discrimination based on sex.” (This decision was later affirmed by the Court of Appeals for the 3rd Circuit.)
Again, this was after spending only thirty minutes searching.
Yes, technically, the Justice Department is accurate in saying that “federal courts” have applied Title VII to claims the basis of which is solely a person’s transgender status; rather, a handful of federal courts have held as much. The overwhelming majority of federal courts have not.
Why did the Department of Justice fail to mention these cases? Surely the omission was not deliberate. Don’t they know that, were this an actual case, cherry-picking case law and making an argument based on an incomplete representation of the law flirts dangerously with violating Rule 11(b) of the Federal Rules of Civil Procedure?
No, I’m sure it was an accident.
Thomas Wheatley is a law student at the Antonin Scalia Law School at George Mason University in Arlington, Va. Email him at firstname.lastname@example.org.