I am giving a talk at NY Law School under the auspices of the Justice Action Center tomorrow, Oct. 19, about the current controversy over Title IX and the rights of transgender students. I’ve prepared a case table to distribute at the talk and thought I would post it here as a useful reference. The table covers U.S. appellate rulings from 2000 to date on gender identity discrimination claims. I count decisions by the EEOC on appeal from agency determinations to be appellate decisions for purposes of this table. This table does not include prisoner litigation, benefits claims, name change claims, etc. The focus is on Title IX, Title VII, other federal sex discrimination laws, and the Equal Protection Clause.
Transgender [Gender Identity] Discrimination Law – Important 21st Century Appellate Rulings:
Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir.), cert. denied, 546 U.S. 1003 (2005) (allowing Title VII sex discrimination claim by transgender woman police officer discharged after transitioning).
Chavez v. Credit Nation Auto Sales LLC, 641 Fed.Appx. 883 (11th Cir. 2016) (“Sex discrimination [under Title VII] includes discrimination against a transgender person for gender nonconformity.”)
Doe v. Brockton School Committee, 2000 WL 33342399 (Mass. App. Ct. 2000) (unofficially published disposition) (junior high school administration preliminarily enjoined from barring transgender student from school based on student’s refusal to wear gender-appropriate clothing as defined by school).
Etsitty v. Utah Transit Auth., 502 F.3d 1215 (10th Cir. 2007) (gender identity is not a suspect classification for Equal Protection purposes).
Fowlkes v. Ironworkers Local 40, 790 F.3d 378 (2nd Cir. 2015) (Union violates duty of fair representation under National Labor Relations Act by discriminating against transgender woman in operation of hiring hall program).
G.G. v. Gloucester County School Board, 822 F.3d 709 (4th Cir. 2016), petition for certiorari pending (district court must defer to DOE/DOJ interpretation of Title IX sex discrimination provision allowing transgender high school student to use bathroom facilities consistent with his gender identity, because regulation is ambiguous and agency interpretation is reasonable). See also 136 S. Ct. 2442 (U.S. Supreme Ct., August 3, 2016), granting stay of preliminary injunction pending a decision on petition for certiorari, or if such petition is granted, pending ultimate disposition of appeal.
Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011) (discrimination against a transgender woman because of her gender identity was sex discrimination for purposes of a 14th Amendment equal protection claim, invoking heightened scrutiny).
Hispanic Aids Forum v. Estate of Bruno, 16 A.D.3d 294 (N.Y. Appellate Division, 1st Dept. 2005) (landlord did not violate NYC Human Rights Law prohibition of gender identity discrimination by insisting that transgender patrons of commercial tenant use public hallway restrooms consistent with their biological sex rather than their gender identity).
Hunter v. United Parcel Service, 697 F.3d 697 (8th Cir. 2012) (granting summary judgment to employer on transgender employee’s Title VII claim because the employer’s decision-maker was unaware of the plaintiff’s gender identity and had a non-discriminatory reason for the discharge).
Lusardi v. McHugh, 2015 WL 1607756 (EEOC, April 1, 2015) (employer must allow a transgender employee to use the restroom consistent with the employee’s gender identity).
Macy v. Holder, 2012 WL 1435995 (EEOC 2012) (gender identity discrimination claims are actionable under Title VII as sex discrimination claims).
Rosa v. Park West Bank & Trust Co., 214 F.3d 213 (1st Cir. 2000) (bank discrimination against a transgender woman violates sex discrimination provision of federal Fair Credit Act).
Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000) (The Violence against Women Act [VAWA] covers violence against transgender women; the Act was subsequently amended to clarify that it covers violence against persons because of their gender identity).
Smith v. City of Salem, Ohio, 378 F.2d 566 (6th Cir. 2004) (allowing Title VII sex discrimination claim and equal protection claim [heightened scrutiny] by a transgender woman discharged as firefighter after transitioning).