Gender Identity Discrimination in the Workplace

The laws on transgender discrimination in the workplace have recently changed. Here's what you need to know.

By , J.D., University of Missouri School of Law

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.

What Is 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:

  • refusing to hire an applicant because that person is transgender
  • firing an employee because that person is planning to or has made a gender transition
  • failing to address, prevent, or discipline workplace harassment such as threats, slurs, and teasing
  • wrongfully using an improper pronoun or gender term when addressing a transgender employee
  • failing to provide proper or updated paperwork to an employee who has undergone a gender transition, which could include such things as company ID badges
  • preventing gender expression by requiring an employee to look or dress contrary to the gender with which the person identifies, and
  • denying equal access to a common restroom corresponding to an employee's gender identity.

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.

Supreme Court Ruling on Gender Identity Discrimination in the Workplace

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.

Get Legal Help

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.

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