Trial Magazine

In July 2013, Aimee Stephens handed her boss a letter.¹ “Dear Friends and Co-Workers,” she had written. “What I must tell you is very difficult for me and is taking all the courage I can muster.” Stephens came out as transgender. For decades, she explained, “I have felt imprisoned in a body that does not match my mind, and this has caused me great despair and loneliness.” Now, at 52, after years of counseling and a suicide attempt, she wrote, “I have decided to become the person that my mind already is.”

At the time, Stephens had worked for six years at R.G. & G.R. Harris Funeral Homes in Detroit and in the funeral services industry for 30 years. She had come to work each day as a man. In her letter, Stephens wrote that after a vacation, she would return to work as her true self: a woman.

Two weeks later, Stephens was fired. She complained to the U.S. Equal Employment Opportunity Commission (EEOC), and the EEOC sued the funeral home, alleging a violation of Title VII of the Civil Rights Act of 1964.² The district court entered summary judgment for the funeral home, but the Sixth Circuit unanimously reversed.³

In October, the U.S. Supreme Court will hear the case. The Court will consider whether Title VII prohibits discrimination against transgender people. In a growing body of cases involving discrimination against ­transgender people, this is the first to reach the Court.

Transgender as well as gender nonconforming people face discrimi­nation in many areas of daily life—at work, in school, when seeking health care. Litigation isn’t the silver bullet for social change, but it’s a powerful tool, and enforcing antidiscrimination laws is an important step.

Potential Claims

What claims are available when someone has faced discrimination because of their gender identity?⁴

It's prohibited discrimination when a transgender or gender ­nonconforming employee is treated differently for failing to conform to their employer’s sex stereotypes.

At work (Title VII). Title VII protects employees from suffering discrimination “because of . . . sex.”⁵ Courts have found that this language encompasses gender identity discrimination under two distinct theories. The first is based on sex stereotyping. In Price ­Waterhouse v. Hopkins, the Supreme Court held that discrimination “because of . . . sex” includes discrimination because of “sex stereotyping,” ideas about how men and women should look and act.⁶ When a male employee is treated differently for not dressing “manly enough,” for example, that’s prohibited discrimination because of sex (absent a bona fide occupational qualification). This means it’s also prohibited discrimination when a transgender or gender ­nonconforming employee is treated differently for failing to conform to their employer’s sex stereotypes.

The second theory is based on ­transgender identity or status itself. The idea is that transgender status is an inherently sex-based trait: to be transgender is to have a gender identity different from one’s birth sex. When an employer acts because a person is transgender, the employer necessarily is motivated, at least in part, by the person’s sex. Discrimination against transgender people also inherently implicates sex stereotyping because it is based on stereotypical notions of how sex organs and other traits ought to align with gender identity. Thus, when a transgender person is treated differently for being transgender or for transitioning, that too is prohibited by Title VII.

Take a parallel example, and suppose a person was fired because she converted from Christianity to Judaism. That’s discrimination “because of religion,” even if the employer feels no animus against Christianity or Judaism, because “discrimination because of religion easily encompasses discrimination because of a change in religion.”⁷ In the same way, discrimination “because of sex” includes discrimination because of a change (or perceived change) in sex.

It’s likely the Supreme Court will soon tell us what it thinks about these theories. Until then, consider the cases that find Title VII protects transgender people at work.⁸ Aside from this issue, the biggest obstacles in these cases are the typical hurdles in all employment cases, including proving causation and pretext.

In school (Title IX). Title IX of the Education Amendments Act of 1972 protects most students from discrimination “on the basis of sex.”⁹ Courts have interpreted this language in the same way as the nearly identical language from Title VII.

The Supreme Court’s upcoming decision about Title VII probably will affect Title IX claims too. In the meantime, look at cases finding that Title IX prohibits gender identity discrimination.¹⁰ Some of these cases relied on a “dear colleague letter” from the U.S. Department of Education (DOE) and the U.S. Department of Justice explaining that these agencies believed Title IX prohibits gender identity discrimination.¹¹ That letter was withdrawn in 2017. Still, the reasoning of the Title VII cases—that discrimination “because of sex” includes discrimination against transgender people based on sex stereotyping and their transgender status—was not based on the letter, and therefore continues to apply fully to Title IX claims.

Under Title IX, then, transgender students should have the right to be called by the names and pronouns that match their gender identity, not be bullied or harassed because of their gender identity, dress in accordance with their gender identity (for example, at graduation or school dances), and participate in sex-segregated activities in accordance with their gender identity (for example, on sports teams).

What about restrooms and locker rooms? Title IX’s implementing regulations allow schools to “provide separate toilet, locker room, and shower facilities on the basis of sex.”¹² And in 2018, the DOE announced that while it still believed transgender students cannot be harassed or penalized for failing to conform to sex-based ­stereotypes, it will not investigate civil rights complaints from transgender students about having restroom access.¹³

But allowing schools to have separate boys and girls ­restrooms says nothing about how schools may consider who is a “boy” and who is a “girl.”¹⁴ Nor does Title IX say that schools may segregate restrooms on the basis of “biological sex” or “sex assigned at birth,” words that some try to read into the statute.¹⁵ Requiring a student to use a restroom that does not conform to their gender identity punishes that person for their gender nonconformance, which violates Title IX.¹⁶ It also subjects transgender students to different treatment from non-transgender students, which violates Title IX.¹⁷ Title IX should prohibit schools from forcing ­transgender students to use separate facilities or facilities based on their sex assigned at birth, rather than the facilities that match their gender identity.

Finally, keep in mind that the Family Educational Rights and Privacy Act of 1974 (FERPA) prohibits most schools from releasing certain information without permission.¹⁸ This typically should include information about students’ transgender status and medical history. Though FERPA does not create a private right of action,¹⁹ you may file a complaint with the DOE and, in some instances, sue for invasion of privacy under state law.²⁰

Health care. Section 1557 of the Affordable Care Act (ACA) prohibits most health insurers and any health program or provider that receives federal funding from discriminating on the basis of sex.²¹ The statute expressly incorporates the Title IX standard, so courts look to Title IX case law (and, in turn, Title VII case law) for ACA claims.²²

Watch for situations when insurers categorically exclude ­transition-related care from coverage, exclude a certain procedure for transition-related care but cover it for non-transition care (such as chest reconstruction for cancer but not for gender dysphoria), or refuse to enroll or cancel coverage because the insured is transgender. Investigate whether health care providers refused treatment or harassed your client based on gender identity.

Options outside of litigation are also available, such as filing an internal appeal of an insurance denial, a complaint with the U.S. Department of Health and Human Services’ Office for Civil Rights, a complaint with the Joint Commission (which accredits hospitals), or a complaint with a state or local civil rights agency or long-term care ombudsman.²³

When the government is involved, litigants have successfully raised constitutional claims. Equal protection claims are the most common.

Constitutional claims. When the government is involved, litigants also have successfully raised constitutional claims.

Equal protection claims are the most common, and they can be made in at least two ways. First, you can assert that gender identity discrimination is a form of sex discrimination and thus, absent proper justification, an illegal sex-based classification.²⁴ These cases then rely on the equal protection case law about sex discrimination. Second, you can argue that transgender status itself is a suspect class, entitled to intermediate or even strict scrutiny.²⁵ These cases rely on the classic four-factor test for determining whether a government classification requires heightened scrutiny.²⁶ Equal protection claims commonly arise when public schools, prisons, the military, or government health plans have treated someone differently because they are transgender.

Consider due process and First Amendment claims. When a ­government policy forces a person to involuntarily disclose their transgender identity to third parties, that may violate a ­substantive due process right to privacy—particularly given the highly personal and intimate nature of this information and that its disclosure may put the person’s safety at risk. Involuntary disclosure also may violate a person’s First Amendment right to refrain from speaking and the right not to endorse the government’s ideological message about gender identity. Due process and First Amendment claims arise, for example, when a state refuses to allow a person to amend their birth certificate to reflect their gender identity or when a public school discloses a student’s transgender identity by forcing them to use a restroom that does not correspond to how they look and act.²⁷

State laws. Many states and the District of Columbia have passed antidiscrimination protections explicitly based on gender identity.²⁸ These too provide useful causes of action.

Overcoming the Religious Liberty Defense

One common defense to discrimination claims is religious liberty. Defendants argue that enforcing antidiscrimination laws to prevent gender identity discrimination would violate religious liberty under the First Amendment or the Religious Freedom Restoration Act (RFRA).

First Amendment. The First Amendment prevents the government from “prohibiting the free exercise” of religion. But enforcing a “valid and neutral law of general applicability” does not violate the free exercise clause.²⁹ Such laws are subject only to rational basis review—they must be “rationally related” to a “legitimate government interest”—which antidiscrimination laws easily pass. Indeed, the Supreme Court recently affirmed that state antidiscrimination laws “are well within the State’s usual power to enact when a legislature has reason to believe that a given group is the target of discrimination, and they do not, as a general matter, violate the First or Fourteenth Amendments.”³⁰

RFRA. This statute (and its state counterparts) prevents the government from taking any action that “substantially burdens” religious exercise unless that action satisfies strict scrutiny—that is, unless the action is the “least restrictive means of furthering a compelling government interest.”³¹ It is more likely that parties challenging antidiscrimination laws will do so under the RFRA since the statute’s strict scrutiny test is much tougher than the First Amendment’s rational basis test.

Consider the Sixth Circuit’s decision in the Harris funeral home case as a powerful tool to defeat the RFRA defense.³² The court held that applying Title VII protections would not substantially burden the owner’s reli­gious exercise.³³ But most important, the court also held that enforcing Title VII is always the least restrictive means to further the government’s compelling interest in eradicating discrimination.³⁴ In other words, the RFRA does not provide a defense to Title VII claims. The decision’s logic extends to the other antidiscrimination laws: Because enforcing Title IX, §1557, and other antidiscrimination laws also is the least restrictive means to furthering a compelling government interest, doing so is permissible under the RFRA even if it substantially burdens a defendant’s exercise of religion.

One final way that we, as attorneys, can support the rights of transgender and gender nonconforming people is to help change someone’s legal name and gender marker—especially when that someone is a minor. For many people, this is an incredibly important and meaningful part of their transition.³⁵ The fight for transgender and gender nonconforming rights is multifaceted, and we should pursue all available avenues to ensure equal rights under the law.

C. Benjamin Cooper is an attorney at Cooper Elliott in Columbus, Ohio. He can be reached at benc@cooperelliott.com.

Notes

1. Brief of Aimee Stephens, R.G. & G.R. Harris Funeral Homes Inc. v. Equal Empl. Opportunity Comm’n, No. 18-107 (U.S. cert. granted Apr. 22, 2019), https://bit.ly/2xzOmDb.
2. Equal Empl. Opportunity Comm’n v. R.G. & G.R. Harris Funeral Homes, Inc., No. 14-13710 (E.D. Mich.).
3. Equal Empl. Opportunity Comm’n v. R.G. & G.R. Harris Funeral Homes, Inc., 201 F. Supp. 3d 837 (E.D. Mich. 2016), rev’d and remanded by Equal Empl. Opportunity Comm’n v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560 (6th Cir. 2018).
4. For additional resources, check out the National Center for Transgender Equality and organizations litigating transgender discrimination cases, such as the National Center for Lesbian Rights, the ACLU, Lambda Legal, and the Transgender Law Center.
5. 42 U.S.C. §2000e-2(a)(1) (Westlaw current through P.L. 116–29).
6. 490 U.S. 228, 250 (1989).
7. Schroer v. Billington, 577 F. Supp. 2d 293, 306 (D.D.C. 2008).
8. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560; Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005); Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004); Boyden v. Conlin, 341 F. Supp. 3d 979 (W.D. Wis. 2018); Equal Empl. Opportunity Comm’n v. A&E Tire, 325 F. Supp. 3d 1129 (D. Colo. 2018); Parker v. Strawser Constr., 307 F. Supp. 3d 744 (S.D. Ohio 2018); Equal Empl. Opportunity Comm’n v. Rent-a-Center East, Inc., 264 F. Supp. 3d 952 (C.D. Ill. 2017); Roberts v. Clark Cnty. Sch. Dist., 215 F. Supp. 3d 1001 (D. Nev. 2016); Fabian v. Hosp. of Cent. Conn., 172 F. Supp. 3d 509 (D. Conn. 2016); Dawson v. H&H Elec., Inc., 2015 WL 5437101 (E.D. Ark. Sept. 15, 2015); Finkle v. Howard Cnty., 12 F. Supp. 3d 780 (D. Md. 2014); Lopez v. River Oaks Imaging & Diagnostic Grp., Inc., 542 F. Supp. 2d 653 (S.D. Tex. 2008). But see Etsitty v. Utah Transit Auth., 502 F.3d 1215 (10th Cir. 2007). 
9. 20 U.S.C. §1681(a) (Westlaw current through P.L. 116-29).
10. Whitaker v. Kenosha Unified Sch. Dist., 858 F.3d 1034 (7th Cir. 2017); Dodds v. U.S. Dep’t of Educ., 845 F.3d 217 (6th Cir. 2016); Adams v. School Bd. of St. Johns Cnty., 318 F. Supp. 3d 1293 (M.D. Fla. 2018); Grimm v. Gloucester Cnty. Sch. Bd., 302 F. Supp. 3d 730 (E.D. Va. 2018); M.A.B. v. Bd. of Educ. of Talbot Cnty., 286 F. Supp. 3d 704 (D. Md. 2018); A.H. ex rel. Handling v. Minersville Area Sch. Dist., 290 F. Supp. 3d 321 (M.D. Pa. 2017). But see Texas v. United States, 201 F. Supp. 3d 810 (N.D. Tex. 2016); Johnston v. Univ. of Pittsburgh, 97 F. Supp. 3d 657 (W.D. Pa. 2015).
11. E.g., Bd. of Educ. of Highland Local Sch. Dist. v. U.S. Dep’t of Educ., 208 F. Supp. 3d 850, 855 (S.D. Ohio 2016).
12. 34 C.F.R. §106.33 (Westlaw current through July 5, 2019).
13. Moriah Balingit, Education Department No Longer Investigating Transgender Bathroom Complaints, Wash. Post (Feb. 12, 2018), https://tinyurl.com/y4r6y4xf.
14. See Adams, 318 F. Supp. 3d at 1296–97.
15. Id. at 1320–25.
16. Whitaker, 858 F.3d at 1049. 
17. Id.
18. See 20 U.S.C. §1232g; 34 C.F.R. §99.3.
19. Gonzaga Univ. v. Doe, 536 U.S. 273 (2002).
20. George C. Hlavac & Edward J. Easterly, FERPA Primer: The Basics and Beyond, Nat’l Ass’n of Colleges & Employers (Apr. 1, 2015), https://www.naceweb.org/public-policy-and-legal/legal-issues/ferpa-primer-the-basics-and-beyond/.
21. 42 U.S.C. §18116(a).
22. Tovar v. Essentia Health, 342 F. Supp. 3d 947 (D. Minn. 2018); Boyden, 341 F. Supp. 3d 979; Flack v. Wisc. Dep’t of Health Servs., 328 F. Supp. 3d 931 (W.D. Wis. 2018); Prescott v. Rady Children’s Hosp.-San Diego, 265 F. Supp. 3d 1090 (S.D. Cal. 2017); Cruz v. Zucker, 195 F. Supp. 3d 554 (S.D.N.Y. 2016); Rumble v. Fairview Health Servs., 2015 WL 1197415 (D. Minn. Mar. 16, 2015). But see Franciscan Alliance, Inc. v. Burwell, 227 F. Supp. 3d 660 (N.D. Tex. 2016) (“sex” under §1557 and Title IX does not include “gender identity”).
23. For a discussion of the liability employer health plans can face for transgender health care exclusions, see Transcend Legal, Memorandum to Plan Administrators, https://transcendlegal.org/legal-memo-transgender-health-care-exclusions.
24. Glenn v. Brumby, 663 F.3d 1312, 1317–20 (11th Cir. 2011); Boyden, 341 F. Supp. 3d 979; Adams, 318 F. Supp. 3d at 1320; Flack, 328 F. Supp. 3d 931; Doe v. Mass. Dep’t of Correction, 2018 WL 2994403 (D. Mass. June 14, 2018); Grimm v. Gloucester Cnty. Sch. Bd., 302 F. Supp. 3d 730, 745–46 (E.D. Va. 2018); F.V. v. Barron, 286 F. Supp. 3d 1131 (D. Idaho 2018); A.H. ex rel. Handling, 290 F. Supp. 3d 321; Stone v. Trump, 280 F. Supp. 3d 747 (D. Md. 2017); Evancho v. Pine-Richland­ Sch. Dist., 237 F. Supp. 3d 267 (W.D. Pa. 2017); Norsworthy v. Beard, 87 F. Supp. 3d 1164 (N.D. Cal. 2015).
25. E.g., Grimm v. Gloucester Cnty. Sch. Bd., 302 F. Supp. 3d 730, 749–50 (E.D. Va. 2018) (transgender people “constitute at least a quasi-suspect class” entitled to intermediate scrutiny); Karnoski v. Trump, 328 F. Supp. 3d 1156 (W.D. Wash. 2018) (transgender people are a suspect class entitled to strict scrutiny), rev’d in part, 926 F. 3d 1180, 1201 (9th Cir. 2019) (“[The district court should apply a standard of review that is more than rational basis but less than strict scrutiny.”); F.V. v. Barron, 286 F. Supp. 3d at 1145 (heightened scrutiny); Evancho, 237 F. Supp. 3d at 289 (intermediate scrutiny); Adkins v. City of New York, 143 F. Supp. 3d 134, 140 (S.D.N.Y. 2015) (intermediate scrutiny).
26. See, e.g., Grimm, 302 F. Supp. 3d at 749 (discussing the four factors).
27. F.V. v. Barron, 286 F. Supp. 3d 1131; Gonzalez v. Nevares, 305 F. Supp. 3d 327 (D.P.R. 2018); see also Compl. in Ray v. Himes, No. 2:18-cv-272 (S.D. Ohio), https://www.aclu.org/legal-document/ray-v-himes-complaint.
28. See Movement Advancement Project, Equality Maps: Non-Discrimination Laws, http://www.lgbtmap.org/equality-maps/non_discrimination_laws.
29. Empl. Div., Dep’t of Human Res. of Ore. v. Smith, 494 U.S. 872, 879 (1990); see also Reynolds v. United States, 98 U.S. 145, 166–67 (1878) (allowing religious belief to trump neutral and generally applicable laws “would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.”).
30. Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719, 1727 (2018) (quoting Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557, 572 (1995)).
31. 42 U.S.C. §2000bb-1. The RFRA was struck down as applied to the states in Boerne v. Flores, 521 U.S. 507, 536 (1997). Circuits are split about whether a RFRA defense can be raised in suits between private citizens that do not involve the government. See Shruti Chaganti, Note, Why the Religious Freedom Restoration Act Provides a Defense in Suits by Private Plaintiffs, 99 Va. L. Rev. 343 (2013), https://bit.ly/2G3hKGz.
32. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560.
33. Id. at 585–90.
34. Id. at 590–97.
35. Many communities have pro bono legal clinics or referral networks made up of volunteer attorneys.