Title VII And Title IX

Most of the advances the trans community has made on the federal level is because of Title VII of the Civil Rights Act and Title IX of the Education Amendments of 1972. They banned sex discrimination in employment and education. On the Justice Department website they write this about Title IX

While it is clear that discrimination in violation of Title IX must be "on the basis of sex," courts have held that subjecting an individual to sex stereotyping may constitute sex discrimination in appropriate circumstances. In Price Waterhouse v. Hopkins, 490 U.S. 228, 250 (1989), a Title VII case, the plaintiff was denied partnership in an accounting firm, due, in part, to the attitudes of the senior partners who described her as "macho" and advised her to wear makeup and jewelry and to dress in more feminine clothing. Id. at 235. The Supreme Court explained:

In the specific context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender... As for the legal relevance of sex stereotyping, we are beyond the day when an employer could evaluate employees by assuming or insisting that they match the stereotype associated with their group, for in forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the spectrum of disparate treatment of men and women result from sex stereotypes.

Id. at 250-51. (citations and internal quotations omitted).

Several circuit courts have also addressed gender-based harassment on the basis of stereotyping. Higgins v. New Balance Athletic Shoe, Inc., 194 F. 3d 252 (1st Cir. 1999)(Title VII); Galdieri-Ambrosini v. National Realty & Dev. Corp., 136 F. 3d 276, 289 (2nd Cir. 1998)(Title VII)("Evidence of sexual stereotyping may provide proof that an employment decision or an abusive environment was based on gender.")(citing Price Waterhouse, 490 U.S. at 250-51 (Title VII); Lindahl v. Air France, 930 F. 2d 1434, 1439 (Title VII)(9th Cir. 1991); Sheehan v. Purolator, Inc., 839 F. 2d 99, 106-77 (Title VII)(2nd Cir.)(Kearse, J., dissenting, cert. denied, 488 U.S. 891, 109 S.Ct. 226 (1988)). Since Title VII legal theories are often used by courts to evaluate Title IX claims, sex stereotyping may violate the Title IX prohibition of discrimination on the basis of sex. The fact that the harassment was based on the perception that the individual was not properly "manly" or "feminine" may, in appropriate circumstances, be the basis for a sex stereotyping claim filed under Title IX.

And that is why gender identity is applied to Title VII and Title IX. I like how the judge in Schroer v. Billington put it,

In his analysis of Schroer's “discrimination because of sex” theory, Judge Robertson compared a transgender person to a religious convert, writing, “No court would take seriously the notion that 'converts' are not covered by the statute.”

“Discrimination 'because of religion' easily encompasses discrimination because of a change of religion,” the court wrote. “But in cases where the plaintiff has changed her sex, and faced discrimination because of the decision to stop presenting as a man and to start appearing as a woman ... courts have allowed their focus on the label 'transsexual' to blind them to the statutory language itself.”

So that leads me to the latest court case, expanding Title VII and Title IX to include  sexual orientation.

Federal Agency Urges Court To Include Sexual Orientation Under Sex Discrimination Ban
The Equal Employment Opportunity Commission argues in a federal appeals court filing on Wednesday that “sexual orientation discrimination is sex discrimination, and such sex discrimination violates Title VII.”Buzzfeed
By Chris Geidner
Posted on Jan. 6, 2016

The federal agency charged with enforcing existing civil rights laws has urged a federal appeals court to rule that sexual orientation discrimination is a form of sex discrimination and therefore illegal under Title VII of the Civil Rights Act.

In a filing at the 11th Circuit Court of Appeals on Wednesday, the Equal Employment Opportunity Commission wrote that “sexual orientation discrimination is sex discrimination, and such sex discrimination violates Title VII.”

In supporting the appeal of Barbara Burrows, whose lawsuit against the College of Central Florida was tossed out by a trial court judge, the EEOC wrote, “The district court’s treatment of sexual orientation discrimination as distinct from sex discrimination is untenable and based on a fundamentally flawed premise.”

The move is the latest step from the EEOC and advocates in an effort to protect LGBT people from discrimination under existing civil rights law.

Let’s hope that the court does find Title VII and IX does cover sexual orientation, which I believe they will.