Is Transexual Discrimination Legal? One Company Says That It Is

By Eric B. Meyer

Over the weekend, I joined a Facebook thread discussing a recent federal court complaint filed in Texas by a former Saks employee, Leyth O. Jamal (Jamal V. Saks).

Ms. Jamal claims that Saks violated Title VII of the Civil Rights Act of 1964 by discriminating against her because she is transsexual.

Saks claims that the complaint lacks merit because Title VII doesn’t prohibit discrimination against transgender employees.

Sex stereotyping IS unlawful

Writing for Slate.com, Mark Joseph Stern calls out Saks’ “trans-bashing legal strategy” as “legally untenable.” Underscoring the Supreme Court’s decision in Price Waterhouse v. Hopkins, Stern notes that Title VII forbids sexual stereotyping.

For example, in Price Waterhouse, the company allegedly treated Ms. Hopkins differently because she was “macho,” was “tough talking,” and used “foul language.” That is, she didn’t conform to the company’s expectations of how a woman should act in the workplace.

So, Mr. Stern is correct that sex stereotyping is unlawful. But, he also concedes that the Supreme Court has not gone the next step and banned discrimination based on transgender status. Still, he implies that, even without the Supreme Court’s imprimatur, the law overwhelmingly favors Ms. Jamal.

It doesn’t. (Well, many local and state laws do, but not federally…)

Article Continues Below

Indeed, in its motion to dismiss, Saks cites cases from three federal circuits, plus a recent decision from a Texas federal court — where the Saks case is now pending — which held that Title VII does not prohibit transgender discrimination. So, if this case is viewed as one of pure transgender discrimination, Ms. Jamal will lose.

[Note: the Complaint does contain allegations of sex stereotyping (Ms. Jamal was allegedly asked “to change her appearance to a more masculine one”) and a hostile work environment (allegations of violence based on gender)]

Something for the Supreme Court to decide

At some point, either the Supreme Court is going to rule on this issue, or Congress will amend the law to clarify that transgender discrimination is (or is not) covered under Title VII.

In the meantime, a few things to note about the Saks case:

  • Companies, like Saks, are free to employ rules and policies prohibiting transgender discrimination. In this BuzzFeed article, Saks claims that it “maintains a long history of policies and practices that are fully supportive of the LGBT community and our LGBT Associates.”
  • Don’t fault Saks for raising a good-faith legal argument that Title VII doesn’t prohibit transgender discrimination. Indeed, as noted above, several courts have reached the same conclusion.
  • The Complaint is a series of allegations, not necessarily facts. Saks may not have done anything wrong, including treating Ms. Jamal differently because she is transsexual.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (www.TheEmployerHandbook.com), which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.

Topics

26 Comments on “Is Transexual Discrimination Legal? One Company Says That It Is

  1. Obviously still a matter of debate in the US but it’s not legal in the UK, under the Equality Act, and hasn’t been since 1999.

    1. So what? The UK is backwards in regards to MANY topics. So let them ruin their own country and let us run ours our own way!

  2. “Title VII forbids sexual stereotyping.” The problem is trans isn’t about sexual stereotyping its about gender and gender isnt protected under Title VII

    1. The wording seems inaccurate. Stereotyping sex would be about your genitals and secondary sexual characteristics. Stereotyping gender would cover clothing, demeanor, etc.

  3. This is a man who is complaining because they treated him as a man? What is wrong with him bringing a lawsuit. Just because I believe I am an Eagle will never allow me to fly like one. If I believe I am a dolphin and go into the water and find out I cannot swim I will never be a dolphin no matter how much I want to act like a dolphin or an eagle . Why because my genetic code states I am an XY and that is a man.

  4. These people are mentally ill. They mental treatment. Claiming discrimination for demanding to be treated like something you are not is absurd.

  5. Wait so they treated the person based on how they acted? Woah! Never knew that was discrimination. Of course i’ll treat someone who mouths off differently than someone who is nice.

  6. I dont think its legal on anyone….but I also think its illegal for the government to shove their limitations off on the population. Government is separate from the people. But they are intent on controling our every thought.

    1. Actually, the government is not separate from the people, it just appears to be that way, since they do not care about us in a real way .
      BUT they are supposed to ,

  7. Transgenderism is about reinforcing gender stereotypes over sexual reality. I see the word ‘transsexual’ being used here but there is nothing indicating that LJ is in fact a transsexual. Transgender is generally the preferred term over transsexual because transgender is the ‘umbrella’ term that also covers cross dressers and drag queens in it’s reach.

    We don’t know any facts here, only allegations but it may well be the case that LJ is nothing more than a man who likes to dress up in women’s clothes and has decided to take his hobby/fetish to work with him. Every man has that right in communities where laws that were crafted to protect gender identity/presentation have been enacted.

  8. It is odd that people think???? that trans people have no value,
    It was a transwoman named Lynn Conway who designed and built the Zerox photo coppier.
    She was an electronics engineer for I.B.M.
    They laughed at her design.
    She had the plans patented and took her idea over to Zerox,
    THEY LOVED IT.
    And to this day Zerox photo coppiers have an extrodinary reputation since the 1970`s.
    She has also written many of the paradgims in engineering text books that are used today.
    She is well respected in the field of engineering.
    She is also a crusader for austisic children of whom she has addopted several .
    How many people can claim this type of noteriety of success.

  9. Can a company ask that a man not be overly aggressive or use foul language? If the answer is yes then being transgender is not an excuse.

  10. Let’s just call you by your physical gender please; it’s so much easier and we got along just fine for thousands of years.
    I won’t stereotype you at all, I will treat you as you act. You start acting like an entitled teenager because I called you dude (when you obviously have the body of a dude, no matter that you WANT to be a chic) then I’ll treat you like an entitled teenager.

    1. There is,,,,NO SUCH THING ,,,as physical gender.
      GENDER is NEUROLOGICAL. NOT physical or psychological.
      It is developmental process that is barely understood. you are talking about sex.
      What about people born with two genetic sets, xxy.
      THEY are female xx and male xy. but they can be physically either one.
      HOW does their identity develop.??
      Identity issues are real. they are NOT made up .it has been recognized for more than a century.

Leave a Comment

Your email address will not be published. Required fields are marked *