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Sex vs Gender Identity in Discrimination Claims

Sex or gender discrimination is sadly common among certain employers, choosing male applicants over qualified females, and in rare cases, the reverse. However, as jurisprudence and society both evolve, an interesting question appears sometimes in sex discrimination cases, especially in the workplace. Where does this leave transgender people, if it addresses their rights at all?

In some states and circuits, parallels have begun to be drawn between discrimination based on biological sex and discrimination based on gender identity, with some success in hashing out the issue. While South Carolina law does not currently provide protections for transgender people in employment, it may do so in the future, depending on what the courts decide.

EEOC vs Other Agencies

One thing that is critical to understand is that the Equal Employment Opportunity Commission (EEOC) does currently view gender identity discrimination in a manner different than most other courts and agencies. The EEOC holds that it is inextricably linked with sex discrimination, because so often, transgender people are fired or otherwise disciplined for behavior that would be common for members of the opposite sex. For example, a transgender man being denied the right to use the men’s room.

While court decisions and other agencies may have a different interpretation of discrimination, the EEOC and all its linked agencies will uphold EEOC precedent. This includes the South Carolina Human Affairs Commission (SCHAC), which has a working agreement with the EEOC. While SCHAC does enforce state law, it will utilize federal precedent if no state law exists. As of this writing, only isolated municipalities in South Carolina currently have regulations on the books to protect against gender identity discrimination. Thus, the EEOC’s guidelines do bind the SCHAC until the state passes legislation of its own.

Legal Precedent Exists

So often transgender and gender nonconforming people are punished due to behaviors rooted in gender roles and norms. There have been a handful of cases that have carved out a narrow path that argues gender discrimination of a certain type does qualify as sex discrimination.

Macy v. Dept. of Justice (2012) is perhaps the most recent, which links back to the Supreme Court case of Price Waterhouse v. Hopkins (1989) in arguing that gender identity discrimination is necessarily based on perceptions of inequality between the sexes. This is important because while EEOC decisions may or may not be considered precedent in some situations, Supreme Court decisions always are.

If you believe you have suffered gender identity discrimination at work, through denial of benefits or advancement, harassment, dead-naming or any other action that would not have been taken against a cisgender employee, it is generally a good idea to file a charge with the EEOC. Do this after exhausting all the remedies available in-house, such as consulting your Human Resources department. Even if the EEOC does not choose to take up your case, they may attempt to help you mediate or otherwise handle the issue, or at the very least, may grant you the right to sue in civil court.

Contact A Knowledgeable Attorney

Everyone, of all gender identities, should be able to work without having who they are used against them. If you have experienced discrimination over your gender identity, you may be entitled to compensation. Attorney A. Christopher Potts is familiar with Title VII and can help answer your questions about whether or not you have a case.

Contact our Charleston office today to set up an appointment.

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