You Heard Their Arguments…

…That President Obama’s administration ruling on gender identity coverage for Title VII and Title IX out of their hat. Well I found a good article that explains how they based their ruling on court cases.

The EEOC Rules That Transgender Discrimination Is Sex Discrimination: The Reasoning Behind That Decision 
The Verdict
By Joanna L. Grossman
May 1, 2012

In a recent adjudication, the EEOC concluded that discrimination against a transgendered individual is sex discrimination.  To many readers, this conclusion may seem obvious, but in fact, most courts that have considered the anti-discrimination rights of transgendered employees have taken a narrower approach.

Under that narrower approach, transgender discrimination is only actionable if the employer acted on sex stereotypes to punish gender non-conformity.  But the EEOC takes the position that any sort of transgender discrimination is sex discrimination, because it inherently involves taking gender—and therefore sex—into account.  This is true even if the employer takes an action that simply reflects animus against transgender individuals or a desire to exclude them from the workplace, rather than a concern, specifically, about gender non-conformity.

As I will argue in this column, the EEOC has the better of the argument.  Its ruling takes an honest, straightforward look at the nature of transgender discrimination and the natural scope of Title VII’s broad prohibition of sex discrimination in employment.

She goes on to discuss the legal precedents that lead up to the ruling and she ends with,

Because many instances of transgender discrimination do involve gender stereotyping, the outcome in many cases may be the same under either approach.  But the EEOC’s approach will encompass more instances of discrimination (an important benefit, given that survey data I cited above, showing that the vast majority of transgender employees will experience workplace discrimination), and allow for a more genuine depiction of the problem alleged in any individual case.

Because this order originates from the EEOC, the agency charged with implementing Title VII, as well as most other federal anti-discrimination laws, it is entitled to some deference.  But whether or not administrative law requires courts to follow the EEOC’s reasoning, courts should do so, because the conclusion is inescapable: discrimination against transgender individuals is about gender and thus, such discrimination is unlawful when it occurs in the employment context.  Maybe progress in this direction will help to finally prove true the Supreme Court’s then-premature declaration, made more than twenty years ago in Price Waterhouse, that we are “beyond the day” in which employers assign gender roles to employees based on biological sex.

This is going to end up in the Supreme Court and I hope it will be heard in the fall session, if it is heard I think we have a very good chance at willing or at the very least a 4 – 4 tie.