[author: RICHARD D. TUSCHMAN]

The EEOC has ruled that claims of discrimination based on transgender status, also known as “gender identity,” are protected by Title VII.

In a decision issued on April 20, 2012, the agency found that the claims of Mia Macy ("Macy"), a transgender woman who had applied for a position with the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATFE”), were cognizable under Title VII.  Macy, who had “presented” as a man when she applied for the position, alleged that she was denied the position when she informed ATF that she was in the process of transitioning from male to female.

The EEOC reasoned that Title VII prohibits not merely discrimination based on sex, but also on gender, i.e. on the “cultural and social aspects associated with masculinity and femininity.”  Thus, decisions based on transgender status constitute gender discrimination, according to the EEOC.  The EEOC cited numerous court decisions that have reached the same conclusion, including the Eleventh Circuit’s recent decision in Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011).

But what does “transgender” mean? A male who is in the process of converting to female through surgery and hormone treatments is clearly transgender, but what about a cross-dresser?  Are employers prohibited from taking into account the fact that a male applicant is a “drag queen”, or that a female applicant wears her hair short, applies no make-up, and appears androgynous?

The answer would appear to be yes.  According to the American Psychological Association (“APA”) web site, “transgender” is “an umbrella term for persons whose gender identity, gender expression, or behavior does not conform to that typically associated with the sex to which they were assigned at birth.”  That definition would seem to cover a wide range of people apart from those who have physically converted, or are in the process of converting, from one sex to another – including cross-dressers and people who appear androgynous. 

The lesson of the Macy decision is clear:  Employers faced with an applicant or an employee who does not meet gender-based cultural and social norms should be aware that discriminating against such persons based on their identity, behavior or appearance may constitute a violation of Title VII.