Gender identity refers to the gender with which a person identifies, which may be different from that person’s assigned or anatomical gender at birth. While no federal law expressly prohibits gender identity discrimination, the Equal Employment Opportunity Commission (EEOC) interprets federal law’s prohibition against “sex” discrimination to include gender identity discrimination. And, around 20 states and the District of Columbia expressly outlaw discrimination on the basis of gender identity.
In late 2019, the United States Supreme Court heard oral arguments in R.G. & G.R. Harris Funeral Homes Inc. v. EEOC, a case involving a funeral home worker who was fired after coming out as transgender. If the Court rules in the transgender worker's favor, then employment discrimination based on gender identity and transgender status will be illegal throughout the country. The Court will likely issue its decision in the summer of 2020.
Gender identity means the gender with which a person identifies. Sometimes, people use the term “gender expression,” which refers to someone’s gender-related mannerisms, appearance, style of dress, characteristics, or identity, without regard to the person’s designated sex at birth. Someone’s gender expression may or may not conform to his or her gender identity. For example, someone may identify as male, yet wear women’s clothing and style his hair in a way that is perceived as feminine.
Under laws that prohibit gender identity discrimination, employers may not single out employees who are transgender or gender nonconforming for differential treatment. For example, an employer may not refuse to hire someone who is undergoing a gender transition, refuse to promote someone who uses a different gender and name than he or she was assigned at birth, refuse to step in if coworkers are harassing an employee for being transgender, or fire someone who begins dressing and grooming in a style that doesn’t conform to his or her perceived gender.
Currently, around 20 states—including California, Illinois, and Massachusetts— and the District of Columbia prohibit gender identity discrimination by private employers. Some city and local governments also ban workplace gender identity discrimination. For a list of states that have outlawed this type of discrimination, see the Movement Advancement Project’s equality map.
The Equal Employment Opportunity Commission (EEOC) has also started to accept and investigate claims of gender identity discrimination under federal law. According to the EEOC, discriminating against an employee because he or she is transgender is a form of illegal sex discrimination under Title VII of the Civil Rights Act. In this situation, the employer is treating the employee differently for failing to conform to the employer’s gender-based expectations, stereotypes, and preferences.
Some courts have agreed with the EEOC, finding that discrimination against transgender employees and applicants violates federal laws prohibiting sex discrimination. However, other courts have ruled the opposite, and most courts have not yet ruled on the issue at all. Because this is a developing area of the law, you’ll need to speak to an experienced employment lawyer to determine how your local courts will rule.
If you are currently transitioning your gender, or have recently transitioned and are facing questions about your gender, you might face gender identity discrimination. If gender identity discrimination is illegal in your area, the following rules apply:
You can find great resources on your legal right—and practical matters to consider when transitioning—at the website of the Transgender Law Center.
If you believe you are being discriminated against because of your gender identity, you should talk to an experienced employment lawyer who is familiar with transgender issues. You may work in a state or local area that explicitly prohibits gender identity discrimination, or you might be covered by laws prohibiting sex discrimination or sexual orientation discrimination. Either way, a lawyer can help you assess your legal rights, evaluate the strength of your claims, and decide on the best strategy for moving forward.
The legal issues of gender identity and gender transition at work are rapidly evolving. You’ll want help from an experienced lawyer to make sure you have up-to-date information and sound advice about how to proceed.