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Ask The Lawyer By: Daniel A. Gwinn, Esq.

| October 9, 2017


QUESTION: I read that the Justice Department says the Civil Rights Act does not apply to transgender people. Does this mean that the law has changed?

ANSWER: The law, in this case Title VII of the Civil Rights Act of 1964, has not changed. Neither has the interpretation of the law as set out in the opinions of the federal courts. What has changed is the role that the government will play in any cases that are argued in those courts, and in the Supreme Court: Instead of arguing that Title VII’s prohibition against discrimination “because of sex” includes discrimination against the transgendered, the government will now argue that it does not.

Whether that argument will prevail and become the law is up to the judges of the federal bench and the justices of the Supreme Court. Recent decisions in the U.S. Court of Appeals, and Supreme Court precedent, indicate the Justice Department will have an uphill battle to win acceptance for its view.


Title VII forbids discrimination in employment because of race, sex, color, national origin, or religion. The addition of “sex” to the list was by a last-minute amendment to the bill in 1964 – and at the time, some regarded it as a joke. Over the years, the definition of “sex discrimination” has evolved and expanded. In 1971, the Supreme Court held it was discrimination to deny women who had young children consideration for a job, but place no such restriction on similarly situated men. In 1977, the Court struck down as discriminatory height and weight requirements that tended to exclude women from certain jobs. In 1983 sexual harassment was held to be a form of sex discrimination.

In 1989, the Supreme Court held that discrimination based on a man or woman’s failure to follow a stereotype for their gender was a form of sex discrimination. In that case, Price Waterhouse v. Hopkins, a female executive was passed over for a partnership because she was insufficiently feminine. This decision opened the door for gay and transgendered people to argue that they were discriminated against not because of their sexual orientation or their status as transgendered people, but because they did not behave in a way that conformed to stereotypes of their gender.

The argument enabled transgender men and women (and gay men and women) to win some protection under Title VII from employment discrimination. But the “gender non-conforming” argument had several flaws – principally that it provided no protection for straight-seeming gay men and women. The argument also required transgendered men and women to argue, in effect, that their biological sex was their true sex; when they embraced the gender with which they identified, they were not acting in conformity with their “real” gender.

This year, the Fifth Circuit in Hively v Ivy Tech Community College held that the phrase “because of sex” includes sexual orientation and identity. The Second and Eleventh circuits, presented with a similar question, felt themselves bound by precedent and declined to expand the definition of “sex” under Title VII – even as they called established precedent illogical. District Courts have increasingly pushed to include orientation and gender identity under a broad definition of “sex.”

The Justice Department’s Position

The bottom line is that the rights of LGBT people under Title VII are likely to be litigated in the federal circuit courts, and even the Supreme Court in the next few years. Whether the courts, who have been increasingly sympathetic to LGBT rights, will buy the argument of the Justice Department is an open question.

However, until the courts decide that question, transgendered people are still entitled to the limited protection they receive under Title VII and federal case law.

To learn more about LGBT rights and Title VII, read our article “Free to Marry, Not Free to Work”, available here or under the “Ask the Lawyer” tab on our website. .

The lawyers at GWINN TAURIAINEN PLLC are experienced attorneys and are happy to answer your questions. Give us a call for a free initial telephone consultation about your legal needs. For consideration of your questions in our web column, please submit your inquiry on the “Contact Us” page of our website at

Information provided on “Ask the Lawyer” is current as of the date of publication. Laws and their interpretation are subject to change. The material provided through “Ask the Lawyer” is informational only; it should not be considered legal advice. Submitting a question to “Ask the Lawyer” does not create an attorney-client relationship between the person submitting the question and GWINN TAURIAINEN PLLC. To view previous columns, please visit our website.

GWINN TAURIAINEN PLLC, is a Troy based law firm representing clients from Warren, Sterling Heights, Ferndale, Royal Oak, Oak Park, Oakland and Wayne Counties and all of Southeast Michigan

By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law
901 Wilshire Drive, Suite 550
Troy, MI 48084
(248) 247-3300
(248) 247-3310 facsimile

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Category: Featured Column

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