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Are Transgender Individuals Protected from Discrimination under Title VII?

By on November 27, 2017 in Discrimination with 0 Comments

Title VII is a federal law that prohibits discrimination in the workplace on the basis of certain protected characteristics, including gender. Recently, there has been intense discussion as to whether or not transgender individuals are covered by the gender discrimination prohibition of Title VII.  Although the United States Justice Department has expressed certain views on this issue within the last couple years, a clear answer as to the legal extent of Title VII’s gender discrimination protections, has not been established.  In a recent Western District of Oklahoma case, Tudor v. Southeastern Okla. State Univ., No. CIV-15-324-C (W.D. Okla. Nov. 20, 2017), a jury was charged with deciding whether or not Title VII protected a transgender university professor from discrimination. The jury found that Title VII does protect transgender individuals based upon their gender and that the professor was entitled to damages.

Facts of Case:

Rachel Tudor (“Dr. Tudor”) was first hired as a tenure-track professor at Southeastern Oklahoma State University (the “University”) in 2004.  At that time, Dr. Tudor presented as a male. In 2007, Dr. Tudor began transitioning into a female.  Dr. Tudor alleged that once she notified the University that she would be presenting as a woman for the 2007-2008 school year, Dr. Tudor received a call from human resources stating that the University’s vice president of academic affairs had inquired about firing her because her transgender identity offended his religious beliefs.  In October 2009, Dr. Tudor applied for tenure and a promotion to an associate professor position.  Her application was denied.  Dr. Tudor alleges that she requested an explanation as to why her application was rejected and the University refused to provide her with a reason.  Dr. Tudor then filed a discrimination lawsuit in federal court alleging, in part, that Dr. Tudor was denied tenure because of her gender.

Dr. Tudor’s Complaint alleged that Title VII’s prohibition on sex discrimination includes discrimination because of gender identity or because an employee has completed a gender transition or is undertaking a gender transition.  Dr. Tudor also claimed that Title VII prohibits an employer from discriminating against an employee because her behavior or appearance does not conform to traditional gender stereotypes.

Analysis and Legal History:

In December 2014, former Attorney General, Eric Holder, announced that the United States Justice Department would adopt a stance that Title VII covers gender identity in future litigation.  Under that stance, in 2015, the Justice Department sued the University in this case claiming discrimination under Title VII. Dr. Tudor then joined the case in her own capacity. The case was still pending as of 2017. In October 2017, the current United States Attorney General, Jeff Sessions, issued a memo, stating that “Title VII does not protect individuals against discrimination on the basis of gender per se, including discrimination against transgender individuals.”  The memo also stated that the Justice Department’s position going forward would be that “sex” as used in Title VII, means “biologically male or female.”  Due to Attorney General Jeff Sessions’ stance on this issue, the Justice Department settled with the University and withdrew from the case.  Despite the Justice Department’s settlement, Dr. Tudor proceeded with the case.

After a trial took place, on the second day of deliberations, the jury found that the University had discriminated against Dr. Tudor when it denied her tenure because of her gender.  The jury awarded $1.16 million to Dr. Tudor.

What does this mean?

Despite the fact that the Justice Department has taken the position that transgender employees are not protected under Title VII, the issue as to whether or not transgender individuals are covered under Title VII’s statutory language has not been completely resolved. Employers should make sure that their discrimination and harassment policies are strictly enforced in the workplace and that those polices extend to employees on the basis of their gender identity. Employers can put themselves in the best position to defend a lawsuit by updating their discrimination policies and discrimination training sessions to include examples that address transgender employees.



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