Within the last year, several circuits have expanded Title VII protection to include discrimination based on transgender status and sexual orientation. The failure-to-conform stereotyping protection from Price Waterhouse has been expanded to include transgender persons. The Sixth Circuit recently held that “Title VII protects transgender persons because of their transgender or transitioning status, because transgender or transitioning status constitutes an inherently gender non-conforming trait.”
In Zarda v Altitude Express, Inc., the Second Circuit held that discrimination based on sexual orientation is a form of sex discrimination under Title VII, following the Seventh Circuit’s opinion in Hively v Ivy Tech. The Second Circuit explained that discrimination for failure to conform to sex stereotypes supports treating sexual orientation as a protected class.
Although the Fifth Circuit has not yet addressed the issue, these very recent circuit cases are persuasive. They consistently recognize transgender status and orientation as protected classes under Title VII, applying the long-recognized protections against gender- or sex-based stereotyping. Applying these recent cases, the court assumes that Wittmer’s status as a transgender woman places her under the protections of Title VII.
The ruling by a federal court in Houston is the latest to acknowledge that Title VII’s prohibition against discrimination on the basis of sex is broad enough to include discrimination based on the employee’s sexual orientation or gender identity.
LGBTQ workers just want the chance to earn a living and provide for their families on the same basis as their co-workers.
It’s long past time to end the invidious discrimination that keeps LGBTQ workers from full participation in professional life.