The evolving issue of workplace discrimination against transgender employees is expanding legal definitions of sex discrimination in some jurisdictions. While no federal law protects transgender people from discrimination, some courts are siding with transgender employees who stake a claim based on sexual stereotyping.
In Glenn v. Brumby, the 11th Circuit in December 2011 affirmed a district court’s ruling in favor of a transgender plaintiff based on sexual stereotyping. The plaintiff alleged discrimination under the Equal Protection Clause, which applies only to suits against the government, but the decision is expected to have implications for Title VII litigation brought against private employers as well.
The question for private sector employers is whether the logic of the decision will apply to Title VII cases in the 11th Circuit. Like Glenn, other transgender plaintiffs have been successful in other jurisdictions when they argued that gender discrimination is a form of sexual stereotyping. These claims grow out of the 1989 Supreme Court decision in Price Waterhouse v. Hopkins (see “The Price of Stereotyping”).