Sixth Circuit: Transgender Persons Protected from Discrimination

Last week, the United States Court of Appeals for the Sixth Circuit (which covers Michigan, Kentucky, Ohio, and Tennessee) held that the prohibition against sex discrimination in Title VII of the Civil Rights Act of 1964 (Title VII) also extends to claims of discrimination based on an employee’s status as a transgender person.

The case, EEOC v. R.G. & G.R. Harris Funeral Homes, Inc. (6th Cir. 2018), centered on the dismissal of a funeral home employee after she disclosed that she was transitioning from the male gender (i.e. her sex at birth) to female, and that she planned to dress at work accordingly. The funeral home did not dispute the reason for the separation, but claimed that its behavior did not violate Title VII because: 1) It was merely enforcing a permissible sex-specific dress code, and 2) transgender status is not a protected class under Title VII.

In sweeping language, the Court rejected both arguments. The Court held that transgender discrimination is necessarily a form of sex discrimination because “it is analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex.” Furthermore, the Court concluded, transgender discrimination is a form of impermissible sex stereotyping, as it involves an employer “imposing its stereotypical notions of how sexual organs and gender identity ought to align.”

While other federal appeals courts have addressed the related issue of gender nonconformity in the workplace, this decision marks the first time that a federal Court of Appeals has expressly held that transgender discrimination falls within the ambit of Title VII’s protections. Employers with operations in the Sixth Circuit should be sure to update their practices accordingly.