Some may think that transgendered issues are novel and just now receiving public attention because it is the newest activist topic to pursue. But, that could not be further from the truth. There are historical accounts of the existence of transgendered people in American society as far back as the 1600s. There is evidence that in 1692 a female born Mary Henly was charged with illegally wearing men’s clothing. Wearing clothing of another sex was then considered an act against nature.
Only in the last several years has public opinion and the law began to respond more favorably to gender-variant individuals. In fact, just since 2015 has the EEOC held that Title VII’s prohibition against sex discrimination also includes discrimination based on gender identity and gender expression. In Macy v. Dep’t of Justice, EEOC Appeal No. 0120120821, (April 20, 2012), the Commission held that intentional discrimination against a transgender individual because of that person’s gender identity necessarily involves sex discrimination because it is a form of sex-stereotyping.  Similar to the rationale used in the Supreme Court’s 1989 decision in Price Waterhouse v. Hopkins (a seminal sex-discrimination case), discrimination based on gender identity is a form of discrimination because it discriminates against individuals based on their non-conformance with gender norms.
In April 2017, the Seventh Circuit Court of Appeals became the first federal appellate court to agree with the EEOC’s interpretation of the law. Hively v. Ivy Tech Comm. Coll. of Indiana, 853 F.3d 339 (7th Cir. 2017). Since President Trump’s election, however, Attorney General Jeff Session has taken a position contrary to EEOC interpretation and guidance. In October 2017, Attorney General Jeff Sessions reversed the previous federal guidance issued by Former Attorney General Eric Holder opining that Title VII protects gender identity as part of Title VII’s prohibition against sex discrimination.
Given the oscillating legal opinions and decisions about the workplace rights of transgendered employees, it can be challenging to ensure that your business is compliant with all laws related to gender identity in the employment sphere. Currently, there are a few significant areas where employers should pay attention to avoid violating the law.
First, do not assume that all transgendered employees are excluded from receiving a reasonable accommodation under the Americans with Disability Act. It is true that the Americans with Disability Act traditionally excluded gender identity disorder from protection. In fact, when Congress was debating passage of the bill that would enact the ADA, Senate Republicans William Armstrong and Jesse Helms implored their colleagues to vote against it because it could protect what they characterized as “immoral” medical conditions or “activities that most Americans find abhorrent.”
However, there has been a change in both how the psychiatric community classifies transgendered identities as mental disorders, and in judicial opinion as to whether the ADA excludes transgendered people in all cases.
The American Psychiatric Association (“APA”) does consider “gender dysphoria” a mental disorder. But, it is important to remember that all transgendered people do not have gender dysphoria. The act of merely identifying as transgendered is not enough to qualify the person as having a mental disorder, and potentially a disability under the ADA. Ultimately, the employer will have to determine through medical certification whether the transgendered employee is suffering severe distress as a result of identifying as transgender, so much so that it can be considered a disabling condition. The American Psychiatric Association asserts that those with gender dysphoria are typically very uncomfortable with the gender they were assigned, experience significant distress or have problems functioning associated with this conflict between the way they feel and the way they think of themselves (referred to as experienced or expressed gender) and their physical or assigned gender.
In 2017, the United States District Court for the Eastern District of Pennsylvania issued a groundbreaking decision that opposed the historical interpretation that the ADA excludes all gender identity claims from its coverage. In the case of Blatt v. Cabela’s Retails, Inc., No. 5:14-cv-04822, (E.D. Pa. Nov. 5, 2014), a transgendered employee informed her employer she suffered from gender dysphoria, but her employer would not allow her to use the women’s restroom, and it refused to issue her a woman’s uniform or name tag. Her employer subsequently fired her. Blatt sued and claimed that her gender identity dysphoria was a disability because it substantially impaired one or more major life activities and that she was discriminated against on the basis of that disability. The Court held that gender dysphoria is a disabling condition and distinct from simply identifying as transgendered. In essence, the ADA intended to exclude specific sexual identities but not disabling conditions that persons of those sexual identities might suffer.
Although the decision in Blatt was only a District Court decision and there is not yet any Supreme Court decision that parrots the rationale in Blatt, businesses should not assume that the law does not protect against discrimination based on gender identity. To date, there are at least nine states (California, Connecticut, Florida, Illinois, Massachusetts, New Hampshire, New Jersey, New York, and Washington) that state disability laws prohibit either transgender or gender dysphoria discrimination. There are about 13 states (Idaho, Indiana, Iowa, Louisiana, Nebraska, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, Texas, and Virginia) that specifically exclude either transgender individuals or gender dysphoria from their coverage.
**To avoid legal liability, it is vital that you develop internal work policies and best practices that adhere to the laws of the city and state where your business is located. If you need assistance developing a gender identity or gender transition policy for your workforce, or require legal consulting on the laws on this topic, call Kimberlee Gee Legal at 1.800.366.0573 to set up a consultation.
 Genny Beemyn, “Transgender History in the United States,” from Trans Bodies, Trans Selves, edited by Laura Erickson-Schroth, Oxford University, 2014, p.4 ISBN 9780199325351.