By Kylie Crawford TenBrook
Recently, Jenna Talackova was disqualified from the Miss Universe contest for allegedly lying about her gender on her entry form. Talackova, who was born with male genitalia but underwent a sex-change operation, indicated on the form that she is female. (Seriously, if an operation can make someone look like that, I’m in.) Amid much media criticism, Donald Trump, who owns the Miss Universe Organization, changed his tune and announced that the organization was changing its policy from requiring contestants to be “naturally born women.” Now, the contest includes all women.
This story highlights the recent attention given to discrimination against transgendered and transsexual individuals. Because discrimination is a workplace concern, it’s important to understand the extent to which transgendered and transsexual individuals are protected in the workplace.
Some Have Already Answered This “Final Question”
Based on data from various sources, 16 states and 143 localities have passed laws prohibiting discrimination based on gender identity and expression. The latest states to pass such laws are Connecticut, Massachusetts, and Nevada. Many states don’t have a law addressing the issue. However, based on the discussion below, in those states, employers’ best bet is to prohibit discrimination against or harassment of transgendered and transsexual individuals.
Does Federal Law “Trump”?
Most federal courts have refused to recognize transgendered and transsexual individuals as falling within a protected class under Title VII of the Civil Rights Act of 1964. Primarily, the courts have relied on the absence of any reference to “gender” in Title VII’s language, which refers only to “sex.” For those who may not be aware of the difference (you’re not alone), according to the World Health Organization, “sex” is used to refer to an individual’s biological and physiological characteristics, while “gender” refers to the socially constructed roles, behaviors, activities, and attributes that a given society considers appropriate for men and women.
Importantly, however, in December 2011, the Eleventh Circuit held that a public employer’s discharge of an employee based on her transition from male to female violated the Equal Protection Clause of the U.S. Constitution. Although the Equal Protection Clause applies only to public employers, in reaching its decision, the court relied on Price Waterhouse v. Hopkins , a U.S. Supreme Court decision holding that an employer discriminated against a female employee based on her sex in violation of Title VII when it denied her partnership because she was “too macho.”
The Eleventh Circuit’s reliance on Title VII signals a significant departure from the view taken by most federal courts. In reaching its decision, the court stated that there is “congruence between discrimination against transgender and transsexual individuals and discrimination on the basis of gender-based behavioral norms. [As such,] a government agent violates the Equal Protection Clause’s prohibition of sex-based discrimination when he or she fires a transgender or transsexual employee because of his or her gender non-conformity.”
For public employers, the implications of this case are clear: Discrimination against transgendered and transsexual employees is prohibited ― at least in the Eleventh Circuit, which is based in Atlanta. Additionally, although the Equal Protection Clause doesn’t apply to private employers, the case is important to private employers to the extent that it suggests discrimination against transgendered and transsexual employees constitutes sex discrimination based on Title VII.
Don’t Dismiss the Topic with a Wave of Your Hand
In light of the Eleventh Circuit’s decision, you need to be aware that transgendered and transsexual employees may be entitled to certain protections in the workplace. Your best bet is to prohibit discrimination and harassment of any kind in the workplace. A harassment- and discrimination-free environment is always better for employee morale and productivity.
Kylie Crawford TenBrook serves as corporate counsel for Best Western International, Inc., in Arizona. Previously, she practiced labor and employment law exclusively. In her spare time, she enjoys reading about the misdeeds of celebrities, politicians, and professional athletes and making the tenuous connection between those missteps and what she does for a living.