New Protections for 
Transgender Status

The Equal Employment Opportunity Commission has reversed its own precedent and extended the anti-discrimination protections of Title VII of the Civil Rights Act of 1964 to discrimination based on gender identity, change of sex and/or trans-gender status.

In Macy v. Holder (decided April 2012), the complainant, Mia Macy, a transgender woman, applied for an open position at the Bureau of Alcohol, Tobacco, Firearms and Explosives while still known as a male. Presenting as a man, she was told the job was hers contingent on a standard background check. She later informed the Bureau that she was changing sex, and someone else was hired for the position.

Macy filed a Charge of Discrimination with the EEOC, alleging that she had been discriminated against because of “sex, gender identity (transgender woman) and … sex stereotyping.” Initially the EEOC rejected the claim, but on appeal unanimously agreed that the claim is subject to Title VII’s ban on discrimination because of sex.

Although equal employment opportunity policies likely need not be revised, employers may need to update other policies, such as leave and benefit policies. They should update their anti-discrimination training to notify supervisors and other employees of the expanded anti-discrimination and anti-harassment coverage. Coworker concerns should be addressed through open discussions.

Employers should take care to maintain confidentiality and employee privacy. For example, any medical information, including any medical information concerning an employee’s sex/gender transition, needs to be kept confidential.