Koch and Bales on Transgender Employment Discrimination

Katie Koch (N. Ky./Chase student) and our own Rick Bales have posted on SSRN their forthcoming piece in the UCLA's Women Law Journal: Transgender Employment Discrimination.

Here's the abstract:

Legal protection for transgender employees, where it exists at all, varies widely. A single federal circuit interprets Title VII as protecting transgender employees, but only when the employee is able to prove workplace stereotyping. Some state and local governments offer varying degrees of protection to transgender employees, but these statutes and ordinances are inconsistent, and often inappropriately attempt to graft transgender protection onto statutes and ordinances forbidding sexual orientation discrimination. One state protects transgender employees via its disability statute, but the federal disability statute explicitly excludes transgender employees, and in any event many transgender employees do not have (or want) a formal diagnosis of disability.

This article argues that the definition of "sex" in federal, state, and local antidiscrimination laws should be expanded to include transgender. This approach is consistent with the sex-stereotyping theory of discrimination announced by the Supreme Court in Price Waterhouse v. Hopkins. If a woman is discriminated against because she does not adhere to social stereotypes about what it means "to be a woman," then a transgender individual is discriminated against when he or she does not adhere to the social stereotypes about what it means to be a member of her or his biological sex.

The proposed approach has four advantages. First, it would create consistency among the federal, state, and local governments concerning the meaning of "sex" and the protection extended to transgender employees. Second, it would extend coverage to the entire transgender community rather than the piecemeal protection currently in effect. Third, it would provide protection to transgender employees immediately. Fourth, courts would easily be able to fit transgender discrimination into an existing legal framework.

Sounds like a well-reasoned argument and one that I agree with whole-heartedly. Of course, this article is as timely as they come with the House currently debating whether to include transgender individuals within the protections of the Employee Non-Discrimination Act (ENDA).

PS