Gender identity refers to the gender with which a person identifies, which may not be the same as the person’s sex at birth. A transgender person is someone whose gender identity and very often gender expression (for example, appearance or style of dress) is different from that person’s anatomical gender at birth.
A landmark U.S. Supreme Court ruling in 2020 banned discrimination against workers based on gender identity. Prior to that ruling, about half the states and many localities had laws prohibiting transgender discrimination.
According to the Equal Employment Opportunity Commission (EEOC), the agency that enforces federal anti-discrimination laws, illegal transgender discrimination can occur in all stages of the employment process, including hiring, job assignment and promotion, pay and benefits, and discipline and discharge.
Examples of gender identity discrimination include:
This list is not exhaustive. Basically, an employer who creates, promotes, or enforces any type of gender-identity based preference or policy could be liable for gender identity discrimination.
In June 2020, the United States Supreme Court issued a landmark ruling for gay and transgender workers in the case of Bostock v. Clayton County (590 U.S. ____). In that case, Aimee Stephens, a funeral home worker, was diagnosed with gender dysphoria. When Ms. Stephens, who at that point presented as male, informed her bosses that she intended to live and work as a woman when she returned from an upcoming vacation, she was fired. (The case also involved individuals who alleged their employers fired them because of their sexual orientation.)
The question for the Court was whether Title VII of the Civil Rights Act, which outlaws employment discrimination on the basis of sex, also covered transgender status and sexual orientation. The Court held that it did, with Justice Gorsuch writing for the 6-3 majority:
Sometimes small gestures can have unexpected consequences. Major initiatives practically guarantee them. In our time, few pieces of federal legislation rank in significance with the Civil Rights Act of 1964. There, in Title VII, Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin. Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.
As a result of the decision, employment discrimination on the basis of sexual orientation and gender identity is now illegal nationwide. The decision was hailed as a landmark civil rights victory for gay and transgender workers.
If you're a transgender person who has suffered discrimination in the employment process, you have legal options. An experienced employment attorney can help you negotiate a resolution with your employer, file a discrimination charge with the Equal Employment Opportunity Commission, or sue your employer in court.