Is discrimination against transgender people illegal?

Question

Are there any laws that have criminalized discrimination against transgender people in general?

Answer 1

It is a common misunderstanding, but not everything that is illegal is a crime. So, the title question and the body text question are different and have different answers.

The title question regarding illegality

The answer to the title question:

Is discrimination against transgender people illegal?

is "yes".

The U.S. Supreme Court held in the case of Bostock v. Clayton County, Georgia, 590 U.S. ___, No. 17–1618, decided July 15, 2020, that An employer who fires an individual merely for being gay or transgender violates Title VII of the Civil Rights Act of 1964, the original federal law prohibiting discrimination on the basis of sex, which bans certain kinds of discrimination in employment. While this ruling directly only governs federal employment discrimination cases, it strongly impacts the interpretation of all other federal laws barring discrimination on the basis of sex, since all of these laws have very similar wording that intentionally copies the phrasing of this first U.S. federal civil rights statutes relevant to sex discrimination that was enacted in 1964.

Federal appellate court rulings in four of the eleven regional U.S. Court of Appeal Circuits and many more federal trial court cases have held that the federal laws that prohibit discrimination on account of sex extent to discrimination against someone on the grounds that they are transgender. There is a fairly comprehensive of the relevant federal court cases at the trial court and appellate level, compiled by the U.S. government's Equal Opportunity Employment Commission (EEOC), here, which I reproduce below:

Chavez v. Credit Nation Auto Sales, L.L.C., 2016 WL 158820 (11th Cir. Jan. 14, 2016). Reversing summary judgment for the employer on the plaintiff's claim that she was terminated from her job as an auto mechanic because she is transgender, the court remanded the case for trial because there was sufficient circumstantial evidence to create a triable issue of fact as to whether gender bias was a motivating factor. The employer asserted that the plaintiff was fired for sleeping on the job and noted that other employees had been fired for the same offense. However, less than two months before the plaintiff's termination, her supervisor had said that her transgender status made him "nervous" and would negatively impact the business and coworkers. Moreover, the plaintiff had received an excellent performance appraisal prior to disclosing her gender transition, and the employer deviated from its progressive disciplinary policy in imposing termination in the plaintiff's case.

Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011). The plaintiff, a transgender female, brought a claim under 42 U.S.C. § 1983 alleging unlawful discrimination based on sex in violation of the Equal Protection Clause when she was terminated from her position with the Georgia General Assembly. Relying on Price Waterhouse and other Title VII precedent, the court concluded that the defendant discriminated against the plaintiff based on her sex by terminating her because she was transitioning from male to female. The court stated that a person is considered transgender "precisely because of the perception that his or her behavior transgresses gender stereotypes." As a result, there is "congruence" between discriminating against transgender individuals and discrimination on the basis of "gender-based behavioral norms." Because everyone is protected against discrimination based on sex stereotypes, such protections cannot be denied to transgender individuals. "The nature of the discrimination is the same; it may differ in degree but not in kind." The court further concluded that discrimination based on sex stereotypes is subject to heightened scrutiny under the Equal Protection Clause, and government termination of a transgender person for his or her gender nonconformity is unconstitutional sex discrimination. Although in this case the defendant asserted that it fired the plaintiff because of potential lawsuits if she used the women's restroom, the record showed that the plaintiff's office had only single-use unisex restrooms, and therefore there was no evidence that the defendant was actually motivated by litigation concerns about restroom use. The defendant provided no other justification for its action, and therefore, the plaintiff was entitled to summary judgment.

Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005). Plaintiff, who "was a male-to-female transsexual who was living as a male while on duty but often lived as a woman off duty [and] had a reputation throughout the police department as a homosexual, bisexual or cross-dresser," alleged he was demoted because of his failure to conform to sex stereotypes. The court held that this stated a claim of sex discrimination under Title VII.

Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004). The plaintiff alleged that he was suspended based on sex after he began to express a more feminine appearance and notified his employer that he would eventually undergo a complete physical transformation from male to female. The court held that Title VII prohibits discrimination against transgender individuals based on gender stereotyping. The court determined that discrimination against an individual for gender-nonconforming behavior violates Title VII irrespective of the cause of the behavior. The court reasoned that the "narrow view" of the term "sex" in prior case law denying Title VII protection to transgender employees was "eviscerated" by Price Waterhouse, in which the Supreme Court held that Title VII protected a woman who failed to conform to social expectations about how women should look and behave.

Rosa v. Parks W. Bank & Trust Co., 214 F.3d 213 (1st Cir. 2000). Citing Title VII case law, the court concluded that a transgender plaintiff, who was biologically male, stated a claim of sex discrimination under the Equal Credit Opportunity Act by alleging that he was denied a loan application because he was dressed in traditionally female attire.

Schwenck v. Hartford, 204 F.3d 1187, 1201-02 (9th Cir. 2000). Citing Title VII case law, the court concluded that a transgender woman stated a claim of sex discrimination under the Gender Motivated Violence Act based on the perception that she was a "man who 'failed to act like one.'" The court noted that "the initial approach" taken in earlier federal appellate Title VII cases rejecting claims by transgender plaintiffs "has been overruled by the language and logic of Price Waterhouse."

Baker v. Aetna Life Ins., et al., __ F. Supp. 3d __, 2017 WL 131658 (N.D. Tex. Jan. 13, 2017). The court ruled that an employee stated a claim against her employer for sex discrimination in violation of Title VII based on denial of coverage under employer-provided health insurance plan for costs associated with surgery related to gender transition.

Mickens v. General Electric Co., No. 3:16CV-00603-JHM, 2016 WL 7015665 (W.D. Ky. Nov. 29, 2016). The court denied the employer's motion to dismiss a Title VII sex discrimination claim in which a transgender plaintiff alleged he was unlawfully denied use of the male bathroom close to his work station, and then was fired for attendance issues resulting from having to go to a bathroom farther away. He also alleged that once his supervisor learned of his transgender status, he was singled out for reprimands, and no action was taken in response to his reports of coworker harassment. Rejecting the employer's argument that discrimination based on transgender status is not actionable under Title VII, the court cited Sixth Circuit precedent recognizing that, in light of Price Waterhouse, the prohibition against gender discrimination in Title VII "can extend to certain situations where the plaintiff fails to conform to stereotypical gender norms." The court held that the complaint sufficiently pled a Title VII sex discrimination claim, noting that "[s]ignificantly, plaintiff alleges that GE both permitted continued discrimination and harassment against him and subsequently fired him because he did not conform to the gender stereotype of what someone who was born female should look and act like."

Roberts v. Clark Cty. Sch. Dist., No. 2:15-cv-00388-JAD-PAL, 2016 WL 5843046 (D. Nev. Oct. 4, 2016). Expressly adopting the EEOC's holdings in Macy and Lusardi, the court ruled that plaintiff, a transgender school police officer, was subjected to sex discrimination in violation of Title VII when he was told by his employer that he could not use either the men's or women's bathroom at work.

Doe v. Ariz., 2016 WL 1089743 (D. Ariz. Mar. 21, 2016). The plaintiff, a corrections officer, alleged the Department of Corrections violated Title VII's prohibition on sex discrimination based on gender identity when supervisors tolerated harassment of him and breached his confidentiality by informing prison inmates of his transition. Denying the employer's motion to dismiss, the court noted that the EEOC and courts have held that Title VII's sex discrimination provision prohibits workplace discrimination based on gender identity, and that the claim was described with sufficient clarity in the EEOC charge to render it exhausted.

Fabian v. Hosp. of Central Conn., 172 F. Supp. 3d 509 (D. Conn. 2016). Plaintiff, an orthopedic surgeon, brought a Title VII sex discrimination claim alleging she was not hired because she disclosed her identity as a transgender woman who would begin work after transitioning to presenting as female. Analyzing Title VII's legislative history and case law in extensive detail, the court held that Price Waterhouse abrogates the narrow view of 0Title VII's plain language that previously excluded sex discrimination claims by transgender individuals, citing supportive rulings by the 6th, 9th, and 11th Circuits, as well as the EEOC's decision in Macy. See also Adkins v. City of New York, 143 F. Supp. 3d 134 (S.D.N.Y. 2015) (allowing equal protection claim by transgender individual to proceed under 42 U.S.C. Section 1983).

Lewis v. High Point Regional Health Sys., 79 F. Supp. 3d 588 (E.D.N.C. 2015). Plaintiff, a certified nursing assistant, alleged she was denied hire for several positions because of her transgender status. At the time of her interviews, she was anatomically male, and was undergoing hormone replacement therapy in preparation for sex reassignment surgery in the future. The district court denied the employer's motion to dismiss the case because the employer had argued only that sexual orientation was not covered under Title VII and sexual orientation and gender identity are two distinct concepts. The court therefore allowed plaintiff's transgender discrimination claim to proceed under Title VII.

Finkle v. Howard Cty., Md., 12 F. Supp. 3d 780 (D. Md. 2014). Denying the county's motion to dismiss or for summary judgment on a Title VII claim brought by a volunteer auxiliary police officer, the court ruled that the officer was an "employee" for Title VII purposes, and that her claim that she was discriminated against "because of her obvious transgendered status" raised a cognizable claim of sex discrimination. The court reasoned: "[I]t would seem that any discrimination against transsexuals (as transsexuals) - individuals who, by definition, do not conform to gender stereotypes - is proscribed by Title VII's proscription of discrimination on the basis of sex as interpreted by Price Waterhouse. As Judge Robertson offered in Schroer v. Billington, 577 F. Supp. 2d 293 (D.D.C. 2008), '[u]ltimately I do not think it matters for purposes of Title VII liability whether the Library withdrew its offer of employment because it perceived Schroer to be an insufficiently masculine man, an insufficiently feminine woman, or an inherently gender-nonconforming transsexual.'"

Parris v. Keystone Foods, 959 F. Supp. 2d 1291 (N.D. Ala. 2013), appeal dismissed, No. 13-14495-D (11th Cir. Dec. 26, 2013). Plaintiff, a transgender female, alleged that she was discharged from her job at a chicken processing facility because of her "gender non-conformity." The district court, citing Glenn v. Brumby, recognized that the plaintiff's claims were covered by Title VII's sex discrimination prohibitions, but granted summary judgment to the employer on the ground that plaintiff's comparator evidence and evidence of discriminatory remarks by coworkers did not show that her discharge was motivated by her gender identity as opposed to the legitimate non-discriminatory reason proffered by the employer.

Radtke v. Miscellaneous Drivers & Helpers Union Local #638 Health, Welfare, Eye, & Dental Fund, 867 F. Supp. 2d 1023 (D. Minn. 2012). Assessing a claim under ERISA for wrongful termination of benefits to a legal spouse of a transgender individual, the court quoted the language from Smith v. City of Salem that the Supreme Court's decision in Price Waterhouse "eviscerated" the "narrow view" of "sex" articulated in earlier Title VII cases, and observed: "An individual's sex includes many components, including chromosomal, anatomical, hormonal, and reproductive elements, some of which could be ambiguous or in conflict within an individual."

Schroer v. Billington, 577 F. Supp. 2d 293 (D.D.C. 2008). The plaintiff, a transgender female, was offered a position as a terrorism research analyst before she had changed her name and begun presenting herself as a woman. After the plaintiff notified the employer that she was under a doctor's care for gender dysphoria and would be undergoing gender transition, the employer withdrew the offer, explaining that the plaintiff would not be a "good fit." The court stated that since the employer refused to hire the plaintiff because she planned to change her anatomical sex by undergoing sex reassignment surgery, the employer's decision was literally discrimination "because of ... sex." The court analogized the plaintiff's claim to one in which an employee is fired because she converted from Christianity to Judaism, even though the employer does not discriminate against Christians or Jews generally but only "converts." Since such an action would be a clear case of discrimination "because of religion," Title VII's prohibition of discrimination "because of sex" must correspondingly encompass discrimination because of a change of sex. The court concluded that decisions rejecting claims by transgender individuals "represent an elevation of 'judge-supposed legislative intent over clear statutory text,'" which is "no longer a tenable approach to statutory construction."

Lopez v. River Oaks Imaging & Diagnostic Grp., Inc., 542 F. Supp. 2d 653 (S.D. Tex. 2008). The plaintiff alleged that she was subjected to sex discrimination when the employer rescinded its job offer after learning that she was transgender. Denying the employer's motion for summary judgment, the court concluded that the plaintiff's claim was actionable as sex discrimination under Title VII on the theory that she failed to comport with the employer's notions of how a male should look. A finder of fact might reasonably conclude that the employer's statement that the job offer was rescinded because she had "misrepresented" herself as female reflected animus against individuals who do not conform to gender stereotypes.

Mitchell v. Axcan Scandipharm, Inc., No. 05-243, 2006 WL 456173, at *2 (W.D. Pa. 2006). Plaintiff alleged sex-based harassment and termination in violation of Title VII after the employer learned that plaintiff had been diagnosed with gender identity disorder and plaintiff began presenting at work as a female after having presented as a male during the first four years of employment. Denying the employer's motion to dismiss, the court held that because the complaint "included facts showing that his failure to conform to sex stereotypes of how a man should look and behave was the catalyst behind defendant's actions, plaintiff has sufficiently pleaded claims of gender discrimination."

Tronetti v. TLC HealthNet Lakeshore Hosp., No. 03-cv-375E, 2003 WL 22757935, at *4 (W.D.N.Y. 2003). Relying on the reasoning in Schwenck v. Hartford, 204 F.3d 1187, 1201-02 (9th Cir. 2000), the court ruled that plaintiff's sex discrimination claims of hostile work environment harassment and discriminatory discharge arising from her transition and sex reassignment surgery were actionable under Title VII, based on factual allegations that she was discriminated against for "failing to act like a man." See also Doe v. United Consumer Fin. Servs., No. 1:01-cv-1112, 2001 WL 34350174, at *2-5 (N.D. Ohio 2001).

Creed v. Family Express Corp., 101 Fair Empl. Prac. Cas. (BNA) 609, 2007 WL 2265630 (N.D. Ind. Aug. 3, 2007). The plaintiff, a transgender female, alleged facts permitting an inference that she was terminated because of gender stereotypes; specifically, that she was perceived by her employer to be a man while employed as a sales associate and was fired for refusing to present herself in a masculine way. See also Hunter v. United Parcel Serv., 697 F.3d 697 (8th Cir. 2012) (affirming summary judgment for the employer under both Title VII and state law, the court did not rule that such discrimination was not actionable under Title VII, but rather that there was no evidence that the prospective employer knew or perceived that plaintiff was transgender during the job interview, and therefore a prima facie case of sex discrimination was not established).

Miles v. New York Univ., 979 F. Supp. 248, 249-50 (S.D.N.Y. 1997). Noting that the phrase "on the basis of sex" in Title IX is interpreted in the same manner as similar language in Title VII, the court held that a transgender female student could proceed with a claim that she was sexually harassed "on the basis of sex" in violation of Title IX.*

The ACLU has a list of 59 relevant state and federal court cases on the topic, some of which are pending and have not reached a final resolution.

The EEOC also summarizes the relevant federal statutes which it enforces here. The ACLU also summarizes some of federal laws prohibiting sex discrimination.

To the best of my knowledge, no federal appellate courts have made rulings which are binding precedents that reach the opposite conclusion in other contexts (i.e. that discrimination against someone because they are transgender is not discrimination on account of sex under U.S. federal civil rights statutes not involving an employment context), but I'm not omniscient and I could easily have missed one.

Some of these rulings also implicate other rights such as the implied constitutional right of a parent to determine, within certain boundaries, the medical care that their children receive, or a right to use certain federal government services without regard to any limitations not expressly stated regarding access to those services.

Some states also have anti-discrimination laws, that either expressly prohibit discrimination based upon gender identity or prohibit discrimination on the basis of sex and/or sexual orientation in a manner that has been interpreted to include gender identity.

But while discrimination against someone on account of sex is illegal in those areas where U.S. federal and state civil rights statutes say so, e.g., in employment, housing, and "public accommodations", the remedy for violating these statutes is that you may be sued for money damages, attorneys' fees, and injunctive and declaratory relief in a civil lawsuit (sometimes both a government official and private individuals can bring these lawsuits, and someone only one or the other may bring these lawsuits, depending upon the statute in question).

There are many parts of life that are not covered by state or federal discrimination laws. These include, for example, personal marriage and friendship relationships, membership and participation in genuinely private clubs and associations, religious activities and organizations, renting a residence to someone who lives as a roommate with you in your own house, and employment in certain very small businesses.

One of the other tricky questions in the case of discrimination against transgender people is that unlike, for example, discrimination on the basis of race, an analog to a "color-blind" approach is not viable.

Many significant activities in life, such as sports leagues and bathrooms, are gender segregated for reasons that have been held to not constitute illegal gender discrimination. So, for example, high school varsity sports teams and high school bathrooms are not required to be co-ed and simply indifferent to gender. But this means that the question of what a person or firm or government must do in order to not discriminate against transgender individuals in an area protected by federal, state, or local law is not always trivial to determine.

Likewise, it is not always clear where to draw the line between free expression of religion (e.g. of employers) and the civil rights of individuals, as illustrated by Burwell v. Hobby Lobby Stores, Inc, 573 U.S. 682 (2014).

The body text question regarding criminalization

The answer to the different body text question:

Are there any laws that have criminalized discrimination against transgender people in general?

No.

Illegally discriminating against someone as a private individual (as opposed to as a government official or as someone purporting to act "under the color of" state law), is not, in and of itself, a crime. And, as explained above, only certain kinds of discrimination are illegal.

Likewise, "hating" someone because they are transgender, without acting on this belief in a way that harms someone else, is not a crime.

The federal government in 18 U.S.C. § 249, and some states, have laws called "hate crime laws" that provide for enhanced penalties for people who commit acts that are crimes anyway.

Some of these, including the federal statute, have been determined to apply to hate directed at transgender people, either through specific language in the statute saying so, or from interpretation of language making the hate crime statute apply to crimes motivated by hate based upon sex.

In particular, the Federal Bureau of Investigation in the U.S. (the FBI) explains the relevant federal statute, 18 U.S.C. § 249 (a.k.a. the Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act) as follows:

This statute makes it unlawful to willfully cause bodily injury—or attempting to do so with fire, firearm, or other dangerous weapon—when

1. the crime was committed because of the actual or perceived race, color, religion, national origin of any person, or 2) the crime was committed because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person and the crime affected interstate or foreign commerce or occurred within federal special maritime and territorial jurisdiction.

The law also provides funding and technical assistance to state, local, and tribal jurisdictions to help them to more effectively investigate, prosecute, and prevent hate crimes.

The law provides for a maximum 10–year prison term, unless death (or attempts to kill) results from the offense, or unless the offense includes kidnapping or attempted kidnapping, or aggravated sexual abuse or attempted aggravated sexual abuse. For offenses not resulting in death, there is a seven–year statute of limitations. For offenses resulting in death, there is no statute of limitations.

It is also a federal crime for someone acting "under the color of" state or local laws (such as law enforcement officers or vigilantes purporting to be deputized to enforce state or local laws) to violate someone's civil rights. But, to the best of my knowledge this federal crime has not yet ever been used to prosecuted someone for violating the civil rights of someone believed to be a transgender person in a manner involving discrimination based upon the belief that the person is a transgender person. See 18 U.S.C. §§ 241, 242 and 245 (conspiracy against rights, deprivation of rights under color of law, and federally protected activities).

Answer 2

Hate crimes are criminally punishable, federally under 18 USC 249 in the case of bodily injury motivated by gender identity, and crimes motivated by gender and specifically transgender discrimination in about half of the states. Mental state is never a crime, there must always be some action.

Answer 3

Feel free to be as bigoted as you are comfortable with

AFAIK, there are no laws that require a general citizen to not discriminate on any basis. If you want to give offer lifts to men and women but not to non-binary people, you do you.

However, there are laws that prescribe discrimination against certain classes of people in certain circumstances. For example:

In Australia, it is unlawful to discriminate on the basis of a number of protected attributes including age, disability, race, sex, intersex status, gender identity and sexual orientation in certain areas of public life, including education and employment.

Answer 4

Depending on the judge, they might decide that discrimination against a transgender person is for example discrimination against a woman with a male body, and you wouldn’t have discriminated against a man with a male body, so it is discrimination against the person’s gender.

In general, there are many situations where it is not illegal to discriminate. A company boss may not be allowed to fire you for being transgender, but you are free not to take a job with a company whose boss is transgender.

Answer 5

Discrimination is almost never a criminal matter in the US. Pretty much the only times people have been criminalizing charged for discrimination, they have been government employees who were ordered by a court to not discriminate in the official capacity, and they violated that order.

There are also no laws against discriminating against transgender people, in and of itself. The issue is that it's rather difficult to discriminate against transgender people without discriminating on the basis of sex. For instance, if you allow biologically female to wear dresses, but don't allow biologically male people to do so, then you are treating people different based on their biological sex. On the other hand, if you give people the option between a tuxedo and a dress, and don't have any restrictions as to which people can wear which, then a nonbinary person may find this to be a lack of accommodation, but it wouldn't fall under the precedent finding that prohibitions on sex discrimination apply to trans people.