Can Transgender Employees Be Discriminated Against?

Sex Discrimination
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There are legal protections for transgender employees. The main federal law banning employment discrimination, Title VII, has been interpreted as prohibiting employers from discriminating against transgender workers (though the statute does not have explicit language stating that).

Maryland and District of Columbia law also protect transgender employees (prohibiting discrimination based on gender identity and expression), but Virginia law does not. Under Virginia law, an argument can be made that transgender discrimination falls under sex discrimination because the worker does not conform to sex stereotypes.

Smith v. City of Salem

ffOne of the first major decisions establishing that discrimination against transgender employees violates Title VII came from the U.S. Court of Appeals for the Sixth Circuit in 2004 in Smith v. City of Salem. At trial, the U.S. District Court for the Northern District of Ohio dismissed a firefighter’s lawsuit for a number of reasons, including that Title VII’s protections did not cover transgender (or transsexual) employees.

According to the appellate decision, Smith alleged the following facts:

  • Jimmie Smith was, and continued to be, a firefighter for the city of Salem. Smith was a lieutenant who had worked for the city for seven years without any negative incidents before filing a lawsuit.
  • Smith, who was born a male, was a transsexual diagnosed with gender identity disorder (GID), which is described as a “disjunction between an individual’s sexual organs and sexual identity.” After the diagnosis, he began “expressing a more feminine appearance on a full-time basis” (not just outside work) per medical protocols for treating GID.
  • Soon after, Smith’s co-workers questioned him about his appearance and told him that his appearance and manner were not “masculine enough.” Smith told his immediate supervisor, Thomas Eastek, about his diagnosis and treatment and informed him of the likelihood that this treatment would include a complete physical change from male to female.
  • Smith came to Eastek to answer any questions he might have about his appearance and manner so Eastek could address his co-workers’ comments and inquiries. Smith asked Eastek, and he promised, not to tell his superiors, particularly the Chief of the Fire Department, Walter Greenamyer, about the conversation. Eastek broke his promise and informed Greenamyer.
  • Greenamyer met the Law Director for the City of Salem, C. Brooke Zellers, to come up with a way to use Smith’s transsexualism to fire him. The two met with the city’s executive body to discuss Smith. They agreed the Salem Civil Service Commission would require Smith to undergo three psychological evaluations with physicians of the city’s choosing with the hope that Smith would resign or refuse to comply. If he refused to comply, Smith could be fired for insubordination. One of those present at the meeting later phoned Smith to warn him of the plan, calling it a “witch hunt.”
  • Smith’s attorney called city mayor Larry D. DeJane to tell him that Smith had retained legal counsel and to warn him about the possible legal problems the city would face if it followed through on its plan. Shortly afterward, Smith received a “right to sue” letter from the U.S. Equal Employment Opportunity Commission (“EEOC”). Four days later, Greenamyer suspended Smith for a shift based on an alleged infraction of a city and/or fire department policy.
  • At a later hearing of the Salem Civil Service Commission regarding his suspension, Smith argued that his suspension was due to selective enforcement to retaliate against him for obtaining legal representation. Smith tried to get testimony from witnesses concerning the creation of the plan to fire him, but he was not allowed.
  • The Commission upheld Smith’s suspension. He appealed to state court, which reversed the suspension. Smith then filed a lawsuit in federal court alleging retaliation and sex discrimination. The trial judge dismissed Smith’s federal claims.

Smith’s Appeal

The appeal addressed whether Smith properly claimed he was fired due to “sex stereotyping” (not looking or acting like a traditional male), which would be considered sex discrimination, and whether he could claim Title VII protection because Smith was a transsexual.

The appellate court relied heavily on the U.S. Supreme Court case Price Waterhouse v. Hopkins, in which the Supreme Court ruled that Title VII sex discrimination cases can include claims of discrimination where an employer views an employee as not fitting in with stereotypical appearance or behavior norms for people of that sex. In that case, the plaintiff, Ann Hopkins, claimed that she was denied a partnership in an accounting firm because she was seen as not feminine enough, too aggressive, “macho,” and in need of lessons from a charm school. Here, the Sixth Circuit found that Smith made a proper claim of sex stereotyping and gender discrimination because he claimed that “his failure to conform to sex stereotypes concerning how a man should look and behave was the driving force behind Defendants’ actions.”

The court ruled that transsexuals were protected by Title VII for essentially the same reason as the Supreme Court in Hopkins:

In short, Smith claims that the discrimination he experienced was based on his failure to conform to sex stereotypes by expressing less masculine, and more feminine mannerisms and appearance . . . Having alleged that his failure to conform to sex stereotypes concerning how a man should look and behave was the driving force behind Defendants’ actions, Smith has sufficiently pleaded claims of sex stereotyping and gender discrimination.

The court stated that because of the Price Waterhouse decision, sex discrimination also includes gender discrimination, which is “discrimination based on a failure to conform to stereotypical gender norms.”

After Price Waterhouse, an employer who discriminates against women because, for instance, they do not wear dresses or makeup, is engaging in sex discrimination because the discrimination would not occur but for the victim’s sex. It follows that employers who discriminate against men because they do wear dresses and makeup, or otherwise act femininely, are also engaging in sex discrimination, because the discrimination would not occur but for the victim’s sex . . . discrimination against a plaintiff who is a transsexual—and therefore fails to act and/or identify with his or her gender—is no different from the discrimination directed against Ann Hopkins in Price Waterhouse, who, in sex-stereotypical terms, did not act like a woman. Sex stereotyping based on a person’s gender non-conforming behavior is impermissible discrimination, irrespective of the cause of that behavior; a label, such as “transsexual,” is not fatal to a sex discrimination claim where the victim has suffered discrimination because of his or her gender non-conformity.

Summing It Up

If you believe you have been discriminated against in employment because you are transgender, federal law may help.

  • Transgender employees and job applicants are protected from illegal discrimination due to Title VII’s prohibition of sex discrimination.
  • Courts have interpreted Title VII as including gender discrimination.
  • This also includes discrimination because a person does not conform to a stereotypical appearance or the other “typical” actions of his or her biological sex.

If you have questions about this area of law or think you may need legal representation, contact our office so we can talk about your situation, about how the law may apply in your case, and about what your best options are to protect your legal rights and interests.