Transgender status: Shedding light on when Title VII claims exist

There’s been a lot of heat generated over the debate on the legal rights of transgender employees. Here’s my effort to shed some light instead.

Claim No. 1

Is transgender status a protected classification under Title VII of the Civil Rights Act of 1964? Short answer: Yes. Several years ago, the U.S. Supreme Court dealt with a case involving a natal male who transitioned to become a female. Her employer didn’t like this, firing her as a result. Title VII, by its language, does not use the term “transgender.” Case over?

Not quite. The Court applied a “textualist” approach—that is, in determining a law’s scope and application, it looked only at the words used, not what was in the mind of those enacting the law. Here is the formula:

Step 1: Does Title VII’s language include “transgender” status? No.

Step 2: But does Title VII’s language include “sex”? Yes. An employer cannot discriminate because of “sex.”