//  7/9/19  //  Commentary

Yesterday, I published the first in a series of posts about the application of Title VII to employment discrimination against LGBT people (based on an amicus brief that I've submitted to the Supreme Court with Larry Tribe and Alex Conlon, on behalf of Seth Waxman, Ted Olson, Walter Dellinger, Karen Dunn, and Neal Katyal). That introductory post explained how to interpret Title VII. This one takes that interpretation and proves that Title VII must be read as prohibiting discrimination based on transgender status. 

To start with basics, a transgender person is one “whose gender identity differs from the sex the person had or was identified as having at birth.” See Merriam-Webster Online Dictionary. As our amicus brief demonstrates, under any definition of “sex”—broad or narrow—discrimination against a person on the basis of transgender status violates Title VII for two related but distinct reasons. First, an employer who discriminates based on transgender status necessarily accounts for sex at every single step of his or her reasoning. Second, just as it is forbidden to discriminate against a person for declaring a change in any other characteristic protected by Title VII, so, too, is it unlawful to discriminate against a person for declaring a change in that person’s lived sex. These arguments resolve the questions that have been presented to the Supreme Court and avoid the quagmire of attempting to unravel concepts of "sex" and "gender."

One final note: As I emphasized yesterday, the Court need not reach a definitive view of what "sex" meant in the mid-1960s.  It can properly adjudicate these cases even while accepting a narrower meaning for the sake of argument. But if the Court decides that it has no choice but to confront the question, two exceptionally powerful briefs should guide its analysis—one filed by historians and the other by experts in linguistics. These briefs make a compelling case that the "traditional" definition of sex is anything but, and that the term "sex" was sufficiently multidimensional in its ordinary usage to include discrimination against LGBT individuals.

Discrimination Based on Transgender Status is Discrimination “Because of ... Sex”

Imagine Adam hires John. A few months later, John comes out as transgender and says that she will now live all aspects of her life as Jane, the woman she has always innately known herself to be. In response, Adam fires Jane. The only reason given for this decision is that transgender people like Jane aren’t welcome in his office. Has Adam fired Jane “because of [Jane’s] . . . sex”?

Yes, he has. “[I]t 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.” R.G., 884 F.3d at 575.

To see why, we must pursue the hypothetical in Price Waterhouse and “ask[] the employer at the moment of the decision what [his] reasons were . . . .” 490 U.S. at 250. Any truthful answer would necessarily refer to Adam’s views about what he considers Jane’s “real” sex, his rejection of her self-identified sex, and his desire to employ only people who adhere to their assigned sex. By believing that Jane’s sex at birth was the only way for her to live, and by acting on those beliefs in firing her, Adam took account of sex. Even if “sex” in Title VII were given the narrowest conceivable meaning, Adam’s decision could not be coherently explained without repeated invocations of Jane’s assigned sex and her perceived failure to conform thereto. See Schwenk v. Hartford, 204 F.3d 1187, 1202 (9th Cir. 2000) (“What matters . . . is that in the mind of the perpetrator the discrimination is related to the sex of the victim . . . .”). Thus, as the Sixth Circuit correctly recognized below, “[b]ecause an employer cannot discriminate against an employee for being transgender without considering that employee’s biological sex, discrimination on the basis of transgender status necessarily entails discrimination on the basis of sex—no matter what sex the employee was born or wishes to be.” R.G., 884 F.3d at 578.

That conclusion is independently confirmed by an assessment of what would happen if Jane’s assigned sex were different: if Jane had been assigned female at birth, Adam would have no problem with her living as a woman. The reasons for Jane’s termination dissipate the instant we change her assigned sex. That is as clear a signal as any that she has been fired “because of [her] . . . sex.”

Of course, it is exceedingly unlikely that Adam has ever actually seen Jane’s genitalia or otherwise confirmed her anatomical sex. Instead, since he first hired a man named John, he has almost certainly “presume[d] [John’s] sex from [his] gendered appearance”—and it is ultimately “this sex-derived presumption that leads to the dismissal” when John transitions to Jane, rather than any first-hand insight into Jane’s sex. Jillian Todd Weiss, Transgender Identity, Textualism, and the Supreme Court: What Is the “Plain Meaning” of “Sex” in Title VII of the Civil Rights Act of 1964?, 18 Temp. Pol. & C.R. L. Rev. 573, 589-90 (2009). Here, too, Adam’s beliefs about Jane’s sex—and his disapproval of decisions that flow directly from Jane’s own understanding of her sex—are central to the decision. Adam’s motives would be nonsensical without reference to the sex Jane was assigned at birth—a.k.a., “sex.”

For that reason, the key term in this analysis is not actually “sex,” but rather “because of.” By striking broadly at the use of protected characteristics as a “motivating factor” for employers, see 42 U.S.C. § 2000e-2(m), and by outlawing decisions that would not have occurred but for such characteristics, see Gross, 557 U.S. at 177, Title VII guards against adverse action that turns on a wide array of sex-linked considerations. Applied here, the “because of” requirement teaches that when an employer fires even a single employee for reasons that depend partly on the employee’s actual, perceived, or identified sex, Title VII makes the decision unlawful.

There is no basis in the statutory text for carving transgender individuals out of this rule. And invoking it here captures discrimination “because of . . . sex” that ranks as “reasonably comparable” to that which Title VII has long been interpreted to outlaw. Oncale, 523 U.S. at 79. Few forms of sex-based discrimination are more fundamental than firing someone on the premise that they have misapprehended their own sex. Title VII ensures that Jane need not choose between being fired and conforming to Adam’s beliefs about what her sex is and how she should live it—just as Title VII protects employees from being treated worse because of an employer’s beliefs about how people of their sex should order their lives or respond to sexual advances.[1]

Discrimination Because a Person Changed Their Lived Sex Also Violates Title VII  

An independent basis for concluding that Title VII prohibits discrimination based on transgender status is the principle that Title VII bars discrimination based on actual or stated changes in covered characteristics.

In passing Title VII, Congress made the simple but momentous announcement that sex, race, religion, and national origin are not relevant to the selection, evaluation, or compensation of employees.” Price Waterhouse, 490 U.S. at 239. Were employers free to discriminate against employees because they have changed one of these characteristics (or announced such a change), “sex, race, religion and national origin” would improperly remain relevant to decisions about employees.

Several courts have recognized that religion offers a useful analogy. An employer cannot fire someone on the ground that the person is Christian, or that the person is Jewish. But can the employer declare a general hostility to converts and then fire someone who converts from Christianity to Judaism? Obviously not: this would be discrimination “because of such individual’s . . . religion,” even though it targets not a religious affiliation per se but rather the fact of having changed religions. See Schroer v. Billington, 577 F. Supp. 2d 293, 306-07 (D.D.C. 2008); see also Heller v. EBB Auto Co., 8 F.3d 1433, 1439 (9th Cir. 1993) (holding that “Title VII’s protections clearly encompass . . . participation in [a] conversion ceremony”).

The same is true of Title VII’s other protected characteristics. If an employee’s skin color were to change, whether for medical or other reasons, it would certainly constitute discrimination “because of . . . color” to fire her for that change. See Etienne v. Spanish Lake Truck & Casino Plaza, L.L.C., 778 F.3d 473, 476 (5th Cir. 2015) (holding that “color” includes skin pigmentation); Bryant v. Bell Atl. Md., Inc., 288 F.3d 124, 132 n.5 (4th Cir. 2002) (same). Or imagine an employer who has no objection whatsoever to hiring people of all skin colors and races, but feels very strongly that his employees should always describe their skin color and race “accurately” (as judged against his own standards of accuracy). It would most certainly violate Title VII for this employer to fire an employee solely because she began describing herself at work as “light-skinned” rather than “dark-skinned,” thus offending his deeply-held contrary views regarding her (supposed) actual skin color and the manner in which he believes she should live her racial identity.[2]

This point isn’t limited to “religion” and “color.” Imagine a hardworking, capable employee named Yusuf. Suppose that Yusuf’s colleagues and employer believe him to be of Turkish origin. However, Yusuf has always known (though has never disclosed in the workplace) that his parents immigrated from Turkey to Mexico, where he was born. One day, Yusuf arrives at work, announces that he is of Mexican origin, and makes occasional reference to that origin. His boss—who harbors no prejudice against either Turks or Mexicans—responds that this is a ridiculous claim, since Yusuf’s family originated in Turkey and Yusuf has never before mentioned his “supposed” Mexican heritage. Complaining about people who don’t understand where they are really from, Yusuf’s boss fires him. Did he do so because of Yusuf’s national origin? Yes, he did.

To be sure, each of these examples differs in some respects from the others and from this case. But they share a unifying principle: decisions premised solely on an actual or stated change in a protected characteristic violate Title VII. We struggle to imagine a case involving race, color, national origin, or religion where an employee could be fired on that ground. In each such case, the relevant characteristic would rank among the motivating factors for the adverse action. So too here. There is no reason based in Title VII’s text or structure why “sex” should be uniquely exempted from that general principle, which necessarily forbids discrimination based solely on transgender status. See Price Waterhouse, 490 U.S. at 243 n.9 (emphasizing that Title VII “on its face treats each of the enumerated categories exactly the same”).

 

Tomorrow, I will identify and refute some of the most common objections to the reasoning I've developed in this post

 

 

[1] For these reasons, it makes no sense to say that an employer who fires an employee for being transgender is merely noticing that employee’s sex. This is not a case where the motivations have nothing to do with sex but happen to involve “sexual content or connotations.” Oncale, 523 U.S. at 80. Far from it. To fire someone because they are transgender is to fire them for reasons that literally could not be articulated without reference to their sex, that directly concern their sex, and that are laden with beliefs about their sex. See id. at 81 (“[T]hat inquiry requires careful consideration of the social context in which particular behavior occurs and is experienced by its target.”).

[2] Efforts to treat religious conversion as irrelevant on the ground that religion is not immutable thus fail when the rest of Title VII is taken account—and also fail on their own terms for the reasons given below by the Sixth Circuit. See R.G., 884 F.3d at 576. 


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