Civil Rights Law, 0916 COBJ, Vol. 45, No. 9
| Author | Victoria Otero, J. |
Victoria Otero, J.
Transgender Discrimination Law: Developments under Colorado and Federal Law
The legal landscape in which discrimination against transgender individuals takes place has been expanding over the last two decades, and is changing daily now. Compelling arguments based on federal and Colorado law support causes of action for transgender clients. This article discusses that landscape and explores theories of relief for transgender clients experiencing discrimination.
As the national discussion on transgender identity evolves, the question of how and whether transgender individuals should receive legal protection in various areas necessarily arises. This article discusses the state of federal and Colorado law with respect to transgender people and explores ways in which such laws could be used in the future to protect transgender clients from discrimination.
Transgender Status
For many, establishing a gender identity goes no further than learning that boys and girls have certain biological indicators and individuals identify consistently with those characteristics. A sizable minority of individuals, however, has a gender identity that does not comport with their assigned sex at birth, and many reject the gender binary entirely. While some individuals and organizations have long been aware of their existence and specific needs,1 the visibility of such individuals, who will be collectively referred to as “transgender” or “trans,”2 has increased greatly in recent years. In the legal arena, this has been particularly apparent since the U.S. Supreme Court decided Obergefell v. Hodges in June 2015.3 In Obergefell, the Supreme Court decided that the fundamental right to marry is guaranteed to same-sex couples by the U.S. Constitution. Obergefell was seen as a breakthrough for LGBT rights under federal law, and it has important implications for transgender clients, particularly where a case turns on familial status.4
The invalidation of statutes prohibiting marriage between individuals of the same biological sex addresses one issue that transgender people face, but does not scratch the surface of the discrimination that many trans people experience. Some transgender people have attempted to seek legal protection under federal law, usually invoking Title VII5 in the employment context.6 Complaints h ave also been raised under Title IX,7 which prohibits sex and gender discrimination in educational institutions that receive federal funding,8 as well as the U.S. Constitution, under an equal protection theory.9 Only a handful of cases specifically involving transgender individuals have made it to federal appellate courts, but recent decisions suggest that federal courts may be moving toward recognizing protection of transgender people.10
At the state and local levels, many municipalities and other local governments have passed some protections for transgender people.11 Most recent attention, however, seems to have been devoted to states passing legislation that prevents municipalities, individuals, and businesses from enacting such legislation.12
Colorado went down a similar road in the 1990s when municipalities passed ordinances explicitly protecting individuals from discrimination on the basis of sexual orientation.13 A successful statewide referendum then resulted in Colorado Constitution Amendment 2, which restricted any government or governmental agency from enacting laws or policies creating a discrimination claim on the basis of sexual orientation.14 The fight went all the way to the U.S. Supreme Court, which declared Amendment 2 unconstitutional for making homosexuals second-class citizens without valid justification.15
In 2008, Colorado added sexual orientation and gender identity to the list of protected categories in the Colorado Anti-Discrimination Act (CADA).16 Though it does not appear that a large number of transgender individuals have taken advantage of CADA to preserve their rights, guidance provided by the Colorado Civil Rights Division (as evidenced, for example, in its handling of the Coy Mathis case, discussed below) suggests that state claims may be the best way for Colorado lawyers to seek relief for transgender clients who have suffered discrimination in employment, housing, or public accommodation.
Federal Law
The U.S. Supreme Court has never directly addressed transgender discrimination. As such cases move through lower federal courts, however, it seems likely that the issue will be in front of the Supreme Court in the foreseeable future.
U.S. Supreme Court Decisions
Though the Supreme Court has not yet heard a case where a person’s transgender identity was specifically at issue, the landmark 1989 case Price Waterhouse v. Hopkins17 involved issues relevant to transgender discrimination, and it laid the groundwork for a number of federal lawsuits to follow. When Ann Hopkins was considered for partnership at the accounting firm Price Waterhouse, her application was initially put on hold, and later denied.18 Though the majority of partners who submitted an informed opinion on Hopkins recommended her for partnership,19 comments submitted in negative opinions included suggestions that she was “macho,” that she “overcompensated for being a woman,” and that she ought to “take a course at charm school.”20 To improve her chances for partnership, she was told to “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.”[21]
The plurality opinion directly addressed whether such sex-stereotyping was indeed discrimination on t he basis of sex, and concluded that it was.22 It noted that “we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group,”[23] and indicated approval of the lower courts’ decisions that sex-stereotyping was indeed impermissible discrimination on the basis of sex under Title VII.24 In addition to ultimately changing the framework through which many employment discrimination cases are considered,[25] Price Waterhouse also exposed a nuance in sex discrimination law that provided excellent precedent for subsequent cases involving transgender individuals.
Federal Court of Appeals Cases
Price Waterhouse provided the basis for a number of subsequent Title VII lawsuits. The first of these to reach the appellate level was Smith v. City of Salem,[26] in which a firefighter who was suspended after coming out as transgender and beginning to transition from male to female successfully sued under a sex-stereotyping theory. The U.S. Court of Appeals for the Sixth Circuit noted that the approach on which the defendant relied to argue that discrimination on the basis of transgender identity is categorically excluded from a Title VII claim “ha[d] been eviscerated by Price Waterhouse.”27 The court continued that “discrimination against a plaintiff who is a transsexual—and therefore fails to act and/or identify with his or her gender—is no different from the discrimination directed against Ann Hopkins in Price Waterhouse.”28
The Eleventh Circuit, in Glenn v. Brumby,[29] applied a similar sex-stereotyping theory, but found for the plaintiff on constitutional rather than statutory grounds. Specifically, it applied the Price Waterhouse analysis to hold that discrimination on the basis of gender-nonconformity or transgender identity was impermissible discrimination on the basis of sex under the Equal Protection Clause of the Fourteenth Amendment.30
On April 19, 2016, the Fourth Circuit decided G.G. v. Gloucester County School Board.31 Gavin Grimm,32 a transgender boy in Virginia, sued under Title IX and the Equal Protection Clause after the local school board added a policy precluding him from using the boys’ bathroom at his high school, which he had been using for approximately three weeks. The district court concluded that the plaintiff’s Title IX claims failed due to the approval of certain sex-segregated facilities codified in Title IX,33 despite the U.S. Department of Education’s opinion letter in 2014 indicating that when a school elects to separate or treat students differently on the basis of sex, a school “generally must treat transgender students consistent with their gender identity.”34 Giving great deference to the agency’s interpretation of the meaning of “sex” under Title IX, the appellate court reversed the district court’s dismissal of G.G.’s claim.35
This Fourth Circuit decision is the most recent federal decision on the matter of transgender access to sex-segregated services. Its recency; its extensive, thoughtful discussion of sex, gender, and gender identity and how they relate to bathroom usage; and its deference to the Department of Education’s instruction on the matter suggests that the trend may be toward respecting transgender individuals’ own assessment of their gender identity in the federal courts. This trend represents significant progress for transgender rights from state court decisions refusing to respect those individuals’ identified gender in the context of marriage and adoption.36 G.G. also provides very persuasive precedent for Title IX suits, particularly those dealing with restroom, dormitory, or other sex or gender-segregated facilities offered by institutions receiving federal funding. Price Waterhouse provides a basis for Title VII employment discrimination cases against transgender individuals. Following the guidance from the Eleventh Circuit in Glenn v. Brumby, potential exists to analogize the Title VII and Title IX arguments to an equal protection claim on the basis of...
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