Sixth Circuit Holds That Title VII Prohibits Transgender Discrimination


In a development of major significance, the U.S. Court of Appeals for the Sixth Circuit found that discrimination based on transgender status constitutes sex discrimination under Title VII.

Facts of the Case:  In EEOC v. R.G & G.R. Harris Funeral Homes, Inc, a funeral home employee, who had previously presented as a man, informed her employer that she would be living and working as a woman for a year in preparation for sex reassignment surgery. She was subsequently fired. The funeral home owner asserted that he could not support the idea of sex as “a changeable social construct rather than an immutable God-given gift.”

The Equal Employment Opportunity Commission sued the employer. The federal trial court found that the EEOC stated a claim for sex-stereotyping under Title VII, but that transgender status is not protected by Title VII. It also found that the EEOC could not enforce Title VII against the funeral home, as doing so would substantially burden the employer’s exercise of religion in violation of the Religious Freedom Restoration Act. (Of interest, the employee moved to intervene in the case for purposes of the appeal, as she was concerned that the EEOC may not fully represent her interests given the change in administration).

The Court’s Ruling: On appeal, the Sixth Circuit agreed with the trial court that the employee was terminated in violation of Title VII for her failure to conform to sex-stereotypes. The Sixth Circuit expanded on its ruling and held that discrimination on the basis of transgender and transitioning status was necessarily discrimination on the basis of sex under Title VII. It further noted that discrimination on the basis of transgender status could not be disaggregated from discrimination on the basis of gender nonconformity.

In addition, the Sixth Circuit rejected the employer’s RFRA argument, finding that compliance with Title VII did not substantially burden the employer’s religious practice. According to the Sixth Circuit, “bare compliance with Title VII – without actually assisting or facilitating [the employee’s] transition efforts – does not amount to an endorsement of [her] views.”

Lessons Learned:  Like recent federal appellate court decisions that have found sexual orientation to be covered by Title VII’s prohibitions on sex discrimination, this case continues the expansion of the definition of “sex” under Title VII. Although it appears that the Trump administration is reversing the progressive position taken by the Obama EEOC and DOJ on this issue, courts have lately been willing to effect this change in interpretation, and employers should be prepared for other federal appellate courts to follow this lead.