Saks claims transsexual discrimination is legal. And here’s why they’re probably right.

Over the weekend, I joined a Facebook thread discussing a recent federal court complaint filed in Texas by a former Saks employee, Leyth O. Jamal. Ms. Jamal claims that Saks violated Title VII of the Civil Rights Act by discriminating against her because she is transsexual.

Saks claims (here) that the complaint lacks merit because Title VII doesn’t prohibit discrimination against transgender employees.

Writing for, Mark Joseph Stern calls out Saks’ “trans-bashing legal strategy” as “legally untenable.” Underscoring the Supreme Court’s decision in Price Waterhouse v. Hopkins, Mr. Stern notes that Title VII forbids sexual stereotyping. For example, in Price Waterhouse, the company allegedly treated Ms. Hopkins differently because she was “macho,” was “tough talking” and used “foul language.” That is, she didn’t conform to the company’s expectations of how a woman should act in the workplace.

So, Mr. Stern is correct that sex stereotyping is unlawful. But, he also concedes that the Supreme Court has not gone the next step and banned discrimination based on transgender status. Still, he implies that, even without the Supreme Court’s imprimatur, the law overwhelmingly favors Ms. Jamal.

It doesn’t. (Well, many local and state laws do, but not federally…)

Indeed, in its motion to dismiss, Saks cites cases from three federal circuits, plus a recent decision from a Texas federal court — where the Saks case is now pending — which held that Title VII does not prohibit transgender discrimination. So, if this case is viewed as one of pure transgender discrimination, Ms. Jamal will lose.

[Note: the Complaint does contain allegations of sex stereotyping (Ms. Jamal was allegedly asked “to change her appearance to a more masculine one”) and a hostile work environment (allegations of violence based on gender)] 

At some point, either the Supreme Court is going to rule on this issue, or Congress will amend the law to clarify that transgender discrimination is (or is not) covered under Title VII.

In the meantime, a few notes about the Saks case:

  1. Companies, like Saks, are free to employ rules and policies prohibiting transgender discrimination. In this BuzzFeed article, Saks claims that it “maintains a long history of policies and practices that are fully supportive of the LGBT community and our LGBT Associates.”
  2. Don’t fault Saks for raising a good-faith legal argument that Title VII doesn’t prohibit transgender discrimination. Indeed, as noted above, several courts have reached the same conclusion.
  3. The Complaint is a series of allegations, not necessarily facts. Saks may not have done anything wrong, including treating Ms. Jamal differently because she is transsexual.
  • I wouldn’t be so certain that she “will lose.” Defendants didn’t cite any binding precedent and other courts have ruled differently:

    “[T]his Court finds that Plaintiff’s claim that she was discriminated against “because of her obvious transgendered status” is a cognizable claim of sex discrimination under Title VII.” Finkle v. Howard Cnty., Md., No. CIV. JKB-13-3236, 2014 WL 1396386 (D. Md. Apr. 10, 2014).

    “In refusing to hire Diane Schroer . . . in response to Schroer’s decision to transition, legally, culturally, and physically, from male to female, the Library of Congress violated Title VII’s prohibition on sex discrimination.” Schroer v. Billington, 577 F. Supp. 2d 293, 308 (D.D.C. 2008).

    Of course, the EEOC ruled that transgender discrimination is sex discrimination, which carries some weight (don’t have the time or expertise to wade through the level of deference, but it’s gotta count for something right?).

    And some more case law, summarized by the Eleventh Circuit (in holding that transgender discrimination is sex discrimination while analyzing the US Constitution):

    “Accordingly, discrimination against a transgender individual because of her gender-nonconformity is sex discrimination, whether it’s described as being on the basis of sex or gender. Indeed, several circuits have so held. For example, in Schwenk v. Hartford, the Ninth Circuit concluded that a male-to-female transgender plaintiff who was singled out for harassment because he presented and defined himself as a woman had stated an actionable claim for sex discrimination under the Gender Motivated Violence Act because “the perpetrator’s actions stem from the fact that he believed that the victim was a man who ‘failed to act like one.’ ” 204 F.3d 1187, 1198–1203 (9th Cir.2000). The First Circuit echoed this reasoning in Rosa v. Park West Bank & Trust Co., where it held that a transgender plaintiff stated a claim by alleging that he “did not receive [a] loan application because he was a man, whereas a similarly situated woman would have received [a] loan application. That is, the Bank … treat[s] … a woman who dresses like a man differently than a man who dresses like a woman.” 214 F.3d 213, 215–16 (1st Cir.2000). These instances of discrimination against plaintiffs because they fail to act according to socially prescribed gender roles constitute discrimination under Title VII according to the rationale of Price Waterhouse.

    The Sixth Circuit likewise recognized that discrimination against a transgender individual because of his or her gender non-conformity is gender stereotyping prohibited by Title VII and the Equal Protection Clause. See Smith v. City of Salem, 378 F.3d 566 (6th Cir.2004).”

    Glenn v. Brumby, 663 F.3d 1312, 1317 (11th Cir. 2011)(admittedly there’s some blurring between stereotyping and transgender discrimination in that rundown).

    • Thanks for the input, Phil.

      I don’t know that Ms. Jamal will lose. But, if the court construes her complaint as one involving pure transgender discrimination, that recent Texas case looms large for her.