Civil Rights

Does Title VII ban transgender bias? 'Steady drumbeat of cases' supports DOJ in bathroom bill case

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The legal protection against sex discrimination was added to the federal Civil Rights Act of 1964 at the last minute by a Virginia congressman who had opposed the bill.

The congressman claimed he was sincere in adding the language, and the amendment passed despite speculation that it was intended to weaken support for the bill, the New York Times reports. Now, advocates for transgender rights say that language in Title VII of the act protects against gender identity bias, an idea that has been accepted by one federal appeals court and the U.S. Equal Employment Opportunity Commission.

The issue is at the center of dueling lawsuits filed by the state of North Carolina and the U.S. Justice Department over the state’s bathroom bill, which requires schools and other government-controlled facilities to restrict multiple-occupancy bathrooms to people of the same biological sex. The Justice Department claims the law violates Title VII, as well as Title IX of the Education Act of 1972 and the Violence Against Women Reauthorization Act. North Carolina claims the Justice Department is trying to “unilaterally rewrite long-established federal civil rights laws.”

The Title VII interpretation that supports transgender rights is based on language in a 1989 Supreme Court case, Price Waterhouse v. Hopkins, the Washington Post reports. The plaintiff, Ann Hopkins, had claimed Price Waterhouse refused to make her a partner because male partners believed she acted too masculine and she should dress and look more feminine.

The majority opinion by Justice William Brennan rejected the argument that Title VII barred only across-the-board discrimination against males and females. “We are beyond the day when an employer,” he wrote, can “evaluate employees by assuming or insisting that they matched the stereotype associated with their group, for ‘in forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.’ ”

Since then the Cincinnati-based 6th U.S. Circuit Court of Appeals ruled Title VII protects transsexuals in a 2004 case involving a firefighter diagnosed with gender identity disorder. The EEOC agreed in a case involving a Phoenix police detective turned down for a job with the Bureau of Alcohol, Tobacco, Firearms and Explosives. The Department of Education also agreed in regulations under Title IX.

The Atlanta-based 11th U.S. Circuit Court of Appeals also found protection for transgender people in 2011, but based its finding on the 14th Amendment, according to the Times. And last month the Richmond, Virginia-based 4th U.S. Circuit Court of Appeals allowed a transgender student to sue under Title IX for being denied the right to use the bathroom that corresponded with his gender identity.

One federal appeals court, however—the Denver-based 10th U.S. Circuit Court of Appeals—found in 2007 there was no Title VII protection for transgender rights.

Brooklyn Law School professor Sandra Pullam notes there is still no Supreme Court decision on legal protections for transgender individuals. “But there’s been a steady drumbeat of cases,” she told the Washington Post.

Updated May 13 to clarify references to transgender people.

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