have found Title VII to protect trans-
gender individuals from employment
discrimination based on sex stereo-
typing. As stated in a recent decision
by the US Court of Appeals for the
Eleventh Circuit, a person is consid-
ered transgender (or otherwise acting
contrary to traditional male or female
norms) “precisely because of the
perception that his or her behavior
transgresses gender stereotypes.” For
example, the Sixth Circuit found a
valid Title VII claim to be stated by a
demoted police officer, who “was liv-
ing as a male while on duty but often
lived as a woman off duty,” and who
had a reputation as a “homosexual,
bisexual, or cross-dresser.”
Some federal trial courts also
have extended the protection of
Title VII to employees or applicants
based on their sexual orientation.
For example, in November 2016, the
US District Court of the Western
District of Pennsylvania declared in
EEOC v. Scott Medical Center that
sexual orientation discrimination is
a type of employment discrimination
“because of sex” that is barred by
Title VII. The court explained that
“[t]here is no more obvious form
of sex stereotyping than making a
determination that a person should
conform to heterosexuality.”
But the vast majority of federal
courts, including all federal appel-
late courts to date, have found no
Title VII coverage for employment
discrimination based solely on sexual
orientation. These courts have gener-
ally emphasized that it is really up to
Congress (or perhaps the Supreme
Court) to decide whether to create
a new protected class for employees
based on their sexual orientation.
The most recent federal appellate
court to address this issue was a three-
judge panel of the Seventh Circuit in
Hively v. Ivy Tech Community College.
That case involved an openly gay pro-
fessor who claimed her employment
contract was not renewed because of
her sexual orientation. Dismissing
that claim, the Seventh Circuit panel
reluctantly acknowledged that, because
“Title VII in its current iteration does
not recognize any claims for sexual
orientation discrimination, this court
must continue to extricate the gender
nonconformity claims from the sexual
orientation claims.” The panel further
noted this “creates an uncomfortable
result in which the more visibly and
stereotypically gay or lesbian a plaintiff
is in mannerisms, appearance, and be-
havior,” the more likely a viable claim
exists under Title VII.
In other words, the federal courts’
interpretation of Title VII to protect
transgender and other employees
based on sex stereotyping, but not
based on their sexual orientation,
creates an odd legal dilemma. It es-
sentially means that a gay man who is
L Lesbian: A woman who is emotionally, romantically, or sexually attracted to ther women.
G Gay: A person who is emotionally, romantically, or sexually attracted to members of the same gender.
B Bisexual: A person emotionally, romantically, or sexually attracted to more than one sex, gender, or gender identity though not necessarily simultaneously, in the same way, or to the same degree.
T Transgender: An umbrella term for people whose gender identity and/or expression is different from cultural expectations based on the sex they were assigned at birth. Being transgender does not imply any specific sexual
orientation. Therefore, transgender people may identify as straight, gay,
lesbian, bisexual, etc.
Q Queer: Term people often use to express fluid identities and orientations. Often used interchangeably with “LGBTQ.”
I Intersex: General term used for a variety of conditions in which a person is born with a reproductive or sexual anatomy that doesn’t fit the typical definitions of female or male.
A Ally: A person who is not LGBTQ but shows support for LGBTQ people and promotes equality in a variety of ways.
Asexual: The lack of a sexual attraction or desire for other people.
Gender expression: External manifestation of one’s gender identity, usually
expressed through masculine, feminine, or gender-variant behavior, clothing,
haircut, voice, or body characteristics.
Gender identity: One’s innermost concept of self as male, female, a blend or
both or neither — how individuals perceive themselves and what they call
themselves. One’s gender identity can be the same or different from their sex
assigned at birth.
Sexual orientation: An inherent or immutable enduring emotional, romantic, or
sexual attraction to other people.
SOURCE: HUMAN RIGHTS CAMPAIGN W W W. HRC.ORG