Texas Federal Court Holds Transgender Woman Covered by Title VII

A breaking new decision out of a federal court in Texas perhaps points the way to the future in civil rights employment litigation. It involves a transgender woman who was denied hiring and sued under Title VII claiming gender discrimination.

The result was not in favor of plaintiff, but the Court’s reasoning and acceptance of transgendered persons as being recognized as a protected class under Title VII is significant.

The facts are simple for purposes of our review. Plaintiff applied for a job as an Instrument and Reliability Engineer and was offered the position conditioned on satisfactory results of a background check. The background check showed that she was not still employed by her former employer, as she had claimed, but had been terminated. The company therefore decided to rescind her offer of employment.

Plaintiff claimed that the offer was rescinded based on her identity as a transgender woman and her failure to conform to female sex stereotypes.

The Court reviewed relevant Title VII law, noting that “Actionable sex discrimination under Title VII includes discrimination against those who do not conform to sex or gender stereotypes. See Price Waterhouse v. Hopkins, 490 U.S. 228, 250–51 (1989).”

Turning to transgendered persons, the Court first acknowledged that “Until recently, transgendered persons have not been recognized as a protected class under Title VII.” Then, somewhat surprisingly, the Court (citing the recent Second, Seventh and Sixth Circuit decisions in Zarda, Hively and R.G. & G.R. Harris Funeral Homes) stated that:

“Within the last year, several circuits have expanded Title VII protection to include discrimination based on transgender status and sexual orientation. The failure-to-conform stereotyping protection from Price Waterhouse has been expanded to include transgender persons. … Although the Fifth Circuit has not yet addressed the issue, these very recent circuit cases are persuasive. They consistently recognize transgender status and orientation as protected classes under Title VII, applying the long-recognized protections against gender- or sex-based stereotyping. Applying these recent cases, the court assumes that [plaintiff’s] status as a transgender woman places her under the protections of Title VII.”

See my most recent discussion of Zarda and Hively – just 6 weeks ago; and

Amy’s even more recent discussion of whether the Eighth Circuit will join these other three; and

the post of Eric Meyer, our new partner (below) — who may be new here but is well known and loved by employment discrimination students.

The Court went out on a limb since the Fifth Circuit “has not yet addressed the issue” and because the issue is likely to be resolved in the U.S. Supreme Court, but the decision is notable because it is, after all, a Texas trial court which went out on this limb.


PS: The Complaint was dismissed on summary judgment because plaintiff “fail[ed] to point to or submit record evidence making a prima facie case that [the company] discriminated against her because of her transgender status or a failure to conform to sex stereotypes.”

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Richard Cohen

Richard B. Cohen is a partner in the New York City office of FisherBroyles, LLP, a national law firm. Richard Cohen has litigated and arbitrated complex corporate, commercial and employment disputes for more than 35 years, and is a trusted advisor to business owners and in-house counsel both in the United States and internationally. His clients have included Fortune 100 companies, domestic and foreign commercial and investment banks, Pacific-rim corporations and real estate development companies, as well as start-up businesses throughout the United States. Email Richard at [email protected]