Explicit not Implicit: Trans Identity and Discrimination

On June 15, 2020, the Supreme Court reached an affirmative opinion that discrimination based on gender identity is a violation of sex discrimination under Title VII of the Civil Rights Act. Three cases comprised this decision, colloquially known as Bostock, however, I will focus on R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment and Opportunity Commission as the other two cases deal with sexual orientation, not gender identity. In R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment and Opportunity Commission, Aimee Stephens, funeral director for R.G. & G.R. Harris Funeral Homes, was fired from her job after informing her employer of her intention to transition from man to woman and begin wearing more traditionally feminine clothes. The court ruled that Stephen’s termination as a result of her transgender identity is a form of sex discrimination and is thus in violation of Title VII. Although the justices did rule in favor of Aimee Stephens’s right to gender expression in the workplace, and this decision will no doubt impact the ongoing fight for rights for transgender individuals, I am not confident that this was the strongest step forward in the fight for transgender rights. 

Historically, when arguing for discrimination based on gender identity, lawyers have had two legal options: sex discrimination or disability discrimination. Sex discrimination claims revolve around how the court defines “sex.” Justices who are orginalists are likely to believe that “sex” is defined as the sex assigned at birth, while justices who view the constitution as a living document that adapts to the current times are more likely to support a broader definition of “sex.” An attorney arguing for sex discrimination of a transgender client must then prove that the client’s discrimination comes as a result of their gender expression violating the stereotypes of their sex assigned at birth. This can be a dicey argument as it requires the court to view the plaintiff as somehow still connected to the gender that they left behind, which can in turn be detrimental to the plaintiff. On the other hand, attorneys can argue that their transgender clients were discriminated against as a result of a disability. Arguing transgender status as a disability requires having the client be diagnosed with gender dysphoria (which Aimee Stephens is in this case). This diagnosis can also be a tricky tactic for a lawyer trying to do right by their client because it assumes that identifying as transgender is somehow unusual and dibilitating, which is not the view of all trans people. Notably, however, using transgender status as a disability can assist in medical costs for hormone therapy and important surgeries related to altering the body. Arguing that someone who identifies as transgender is also suffering from a disability occurs on much more of a case by case basis, as it requires the client to have access to medical care and feel limited by their identitiy, and thus is more controversial. 

Nonetheless, the opinion of Bostock may mean that future lawyers can simply use gender identity as a form of sex discrimination, knowing that it is an accepted precedent, and transgender status will be recognized as separate from the binary gender classifications. But this is only wishful thinking unless discrimination based on gender identity is explicitly written into law. That is where the need for the Equality Act emerges. The Equality Act specifically defines sex discrimination as discrimination on the basis of “sex, sexual orientation, gender identity, or pregnancy, childbirth, or a related medical condition of an individual, as well as because of sex-based stereotypes.” As of May 2019, the act has been under review in the Senate. The Equality Act is an important next step in the fight for trans rights because without the explanation of what is included under “sex,” trans rights will always be at risk. The Bostock opinion has cracked open the door, but the Equality Act will remove the door from its hinges.