Legal Briefing
Evolving Theories of Sex Discrimination
by Richard M. Escoffery and Kristin Trulock

Title VII has long declared it unlawful to discriminate against a person in employment “because of … sex.” The limits of the term “sex” under Title VII, however, continue to evolve. Traditionally, courts have confined Title VII’s prohibition against sex discrimination to biological men and women, excluding from the statute’s protections any claims based on sexual orientation or gender identity. Over time, these same courts have blurred the line by holding that Title VII protects individuals who fail to conform to traditional sex stereotypes, thereby arming some lesbian, gay, and transgender litigants with a viable theory on which to pursue sex discrimination claims. One federal court recently went even further, holding that discrimination against transsexuals because they are transsexuals is literally discrimination because of sex under Title VII.

As the boundaries of Title VII sex discrimination continue to grow through case law, so too has interest in recognized protections for the lesbian, gay, and transgender community. For example, after years of failed attempts to add sexual orientation to Title VII, advocates have shifted their attention to the Employment Non-Discrimination Act (“ENDA”), which is intended to fill the gap in Title VII as to sex-based protections. While advocates criticize ENDA’s failure to extend protection to all members of the lesbian, gay, and transgender community – transgender individuals are not covered by ENDA in its present form – some view the bill’s passage in the House as indicative of a shift in the legal and social climate. Moreover, although this federal legislation may not be enacted for some time, a number of states already provide equal employment legislation for gay and lesbian employees, and some also specifically afford workplace protections to transsexuals.

It remains unclear whether recent decisions will provoke other courts’ recognition of an increasingly broad reading of “sex” under Title VII, or whether federal legislation expanding employer’s obligations to lesbian, gay, and transgender persons will pass. Nevertheless, these developments stand as a reminder that the law in this area is in flux. As a result, if faced with employment law issues based on sexual orientation or gender identity, employers should be aware of the current status of the law in their jurisdiction and seek the advice of counsel if in doubt.