Changing sex is now a protected classification in the eyes of the EEOC. In Macy v. Eric Holder, a federal employee tried to file a complaint alleging discrimination against her because of her sex – that is, her gender as related to her transgender status. The federal EEO officer refused to accept her charge. The employee appealed to the Equal Employment Opportunity Commission. The EEOC ruled that transgender status was related to her sex and her complaint should be accepted for investigation. See Work Matters blog post.
Justice Scalia wrote the decision that extended Title VII to apply to same sex harassment, Oncale v. Sundowner Offshore Servics, Inc. The drafters of Title VII almost certainly did not intend for that statute to apply to discrimination against gay men and women. But, as Justice Scalia explained in Oncale, Title VII forbids discrimination based on a person’s gender. That is the plain language of the statute. So, if discrimination is based on a person’s gender, Title VII will apply. In a strained decision, the Oncale decision also held, however, that Title VII does not apply to discrimination against gay persons. So, the end result of Oncale is if someone is suffering discrimination because s/he is gay, Title VII will not apply. But, if that same worker is suffering discrimination from a member of the same sex and the discrimination is related to her/her gender, then Title VII may apply.
Recall that the oil rig worker in Oncale was suffering brutal harassment from co-workers who were clearly engaging in sex based harassment – harassing him in the shower, threatening to rape him, etc. – but none of the workers were gay. The victim’s harassment was related to his gender, but it was not because he or the perpetrators were gay.
I expect we will see the same sort of strained reasoning regarding transgender discrimination.