I had previously posted about an Eleventh Circuit case recognizing that discrimination against transgendered persons is prohibited sex discrimination under Title VII. The EEOC, in a decision issued last month, has adopted that reasoning. The EEOC stated: "...[W]e conclude that intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination 'based on...sex,' and such discrimination therefore violates Title VII." The linchpin of this decision is the notion that discrimination against transgendered people is differential treatment based on the transgendered person's failure to conform to gender stereotypes, and thus is discrimination based on sex.
This is a potentially important decision because I can foresee employees (and their attorneys) arguing that Title VII protects gay and lesbian persons under a similar rationale. After all, aren't all instances of sexual orientation discrimination based on the individual's failure to adhere to a preconceived gender norm (attraction to the opposite sex)? This is a developing area of the law, and we will have to wait to see what happens next.
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