EEOC’s New Transgender Inclusive Policies: How Far Do These New EEO Protections Really Extend?

At its introduction, Title VII of the Civil Rights Act of 1964 was seen as an essential addition to United States legislation. After a tiring debate in the Senate and the addition of over five hundred amendments, Title VII has remained U.S. law since July 2, 1964.1 Under, this legislation it is unlawful for an employer to discriminate against any individual on the basis of race, color, religion, sex, or national origin.2 Unfortunately, despite a growing population of individuals who identify as transgender,3 Title VII did not include protections against discrimination on the basis of gender identity. As noted in the Temple Political & Civil Rights Law Review, prior to this decision, “the Seventh, Eighth, Ninth, and Tenth Circuits have ruled that discrimination because of transgender identity does not constitute discrimination ‘because of sex.’”4 The first Title VII case that claimed discrimination on the basis of one’s transgender identity was in 1975.5 Paula Grossman’s claim, as well as countless other trans*6 identified individuals was claims were dismissed, because Title VII did not cover these claims.7 However, the recent landmark case, Macy v. Holder,8 has changed this.

Mia Macy, a transgender woman and police detective in Arizona, decided to relocate to San Francisco, CA.9 She applied for a position at the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF).10 After receiving assurance that “the job was hers pending completion of a background check,” Macy revealed her transgender identity.11 Five days after informing the ATF, Macy was notified that, “due to federal budget reductions, the position… was no longer available.”12 However, suspecting that this position was eliminated due to her transgender identity, Macy contacted the Equal Employment Opportunity Commission (EEOC), the agency tasked with addressing Title VII abuses.13 Thereafter, Macy was informed that the position had not been eliminated and another person had been hired.14

Macy then promptly filed a formal discrimination complaint against ATF.15 On the claim form, Macy noted that the she was discriminated against on the basis of gender identity and on the basis of sex stereotyping.16 Shortly after submitting this complaint, Macy received a letter stating that, because the EEOC did not adjudicate claims on the basis of gender identity, her claim would be split between the EEOC and the Department of Justice.17 Macy disagreed with the Agency’s decision to split the claims and insisted that they be adjudicated together under Title VII.18

With the help of the Transgender Law Center (TLC), a non-profit organization that focuses on legal aid and reform regarding gender identity cases, Macy appealed the decision of the EEOC.19 Ultimately, the initial decision of the EEOC was reversed.20 This landmark holding stated that, “discrimination based on transgender status, also referred to as claims of discrimination based on gender identity, are cognizable under Title VII’s sex discrimination prohibition.”21 The EEOC reached its conclusion by asserting “the term “gender” encompasses not only a person’s biological sex but also the cultural and social aspects associated with masculinity and femininity.”22 The EEOC further explained that, “When an employer discriminates against someone because the person is transgender, the employer has engaged in disparate treatment ‘related to the sex of the victim.’”23 Accordingly, discrimination against a transgender individual because of her gender-nonconformity is sex discrimination, whether it’s described as being on the basis of sex or gender.”24

Discrimination based on transgender status, also referred to as claims of discrimination based on gender identity, are cognizable under Title VII’s sex discrimination prohibition.

Since this landmark decision, the EEOC has revealed the Strategic Enforcement Plan (SEP) for 2013 – 2016 fiscal years.25 “The purpose of the SEP is to focus and coordinate the EEOC’s programs to have a sustainable impact in reducing and deterring discriminatory practices in the workplace.”26 The surprising change is that for these particular fiscal years, the SEP notes that, as a national priority, the EEOC will address emerging and developing issues such as the “coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions, as they may apply.”27

With this amazing progression, a key follow-up question would be, does this protection for LGBT identified employees extend to international LGBT employees who work in areas that have a zero-tolerance policy for “sexual or biological” deviants? The EEOC answers this question in a document entitled “Responses to Multi-National Employers” which explains when EEO laws apply to international employees and when they do not.28 According to the EEOC’s policy, EEO protections extend to all multi-national employers that operate in the US or its territories and employers that are incorporated or based in the US yet operate outside US territories.29 However, due to the Foreign Law Defense, “U.S. employers are not required to comply with the requirements of EEO protections, if adherence to that requirement would violate a law of the country where the workplace is located.” This can be a very frightening realization for individuals who identify as LGBT yet work in countries where their mere existence is punishable by death.30 This concern highlights the importance of continued social and legal reform to spaces that extend beyond US territories. There’s always room for progress.

[1] The Law, Equal Employment Opportunity Commission, (last visited March 7, 2013).

[2] Title VII of the Civil Rights Act. 42 U.S.C. § 2000e-2 (1964).

[3] Some commonly held definitions of the term transgender, “used most often as an umbrella term, are 1) Someone whose behavior or expression does not match their assigned sex; 2) A gender outside of the man/woman binary; [or] 3) The condition of having no gender or multiple genders.” Sheri Atkinson, LGBTRC Safe Zone Resource Manual 7 (2012).

[4] Jillian Todd Weiss, Transgender Identity, Textualism, and the Supreme Court: What is the Plain Meaning of Sex in Title VII of the Civil Rights Act of 1964?, 18 Temp. Pol. Civ. Rts. L. Rev. 573, 574 (2009).

[5] Id. at 616.

[6] Trans* (with an asterick) is a shorthand for the Transgender as well as the various subcommunities within the trans* community (e.g. Transsexual, genderqueer, Non-Binary, Genderfluid, Genderfuck, Intersex, Third gender, Transvestite, Cross-dresser, Bi-gender, Trans man, Trans woman, Agender, etc.

[7] Id. at 616 – 648.

[8] Macy v. Holder, (E.E.O.C.), 2012 WL 1435995 (2012)

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Id. at 2.

[14] Id .

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] EEOC Debuts Strategy to Address Transgender Discrimination.Transgender Law Center. (last visited March 7, 2013); Holder, supra note 7 at 3; U.S. Equal Employment Opportunity Commission Strategic Enforcement Plan FY 2013 – 2016 (last visited March 14, 2013).

[20] Macy, at 1.

[21] Id. at 4.

[22] Id. at 6.

[23] Id. at 4.

[24] Id. at 9.

[25] EEOC, Supra note 18.

[26] Id.

[27] Id.

[28] The Employment Opportunity Responsibilities to MultiNational Employees. (last visited March 14, 2013).

[29] Id.

[30] State Sponsored Homophobia., ILGA Report, (last visited Feb. 4, 2013).