By: Jeremy Wilner
Whether Title VII protects transgender individuals has been contentiously debated since 1989, when the Supreme Court decided that sex stereotyping is within Title VII’s scope. Title VII itself, states that “[i]t shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.”
So, the question became: Do terminated transgender individuals fall into the category of “sex stereotyping?” Whether transgenders are part of this category is not the only protection that the Equal Employment Opportunity Commission (“EEOC”) believe should be provided. Without squeezing transgenders into the class of “sex stereotyping,” the EEOC addresses the issue of gender identity by interpreting Title VII’s intent as “[d]iscrimination against an individual because of gender identity, including transgender status, or because of sexual orientation is discrimination because of sex in violation of Title VII.”
Recently, the Sixth Circuit held that an employer violated Title VII for terminating a transgender employee. The court stated that the employer “engaged in unlawful discrimination against [the employee] on the basis of her sex.” The court’s reasoning was that sex discrimination should include forcing an employee “to conform to sex-based stereotypes.”
Without a Supreme Court decision to rely on, the circuits have split interpretations of “sex” under Title VII. Presidential administrations also vary in their support, with the Obama Administration viewing transgender rights much more favorably than the Trump Administration. The Department of Justice (“DOJ”) under Former Attorney General Jeff Sessions directly opposed to the Sixth Circuit’s ruling in 2018. The DOJ’s argument was because Title VII does not expressly define “sex,” the court should adopt a contemporary meaning, which the DOJ defines as either male or female.
Various states have passed laws to fill in this disputed gap, with New York passing its GENDA legislation in early 2019. This new state law “prohibits employers, educational institutions, landlords, creditors, and others from discriminating against individuals on the basis of gender identity or expression, and make offenses committed on the basis of gender identity or expression hate crimes under New York State law.”
Finally, the Supreme Court seeks to clarify the dispute regarding Title VII by granting certiorari to three cases: Bostock v. Clayton County, Georgia, Altitude Express, Inc. v. Zarda, and R.G. & G.R. Harris Funeral Homes v. EEOC. The Supreme Court limited the scope of review to “‘whether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping’ under the 1989 decision in the Price Waterhouse v. Hopkins case.” It will be interesting to see what this Supreme Court decides, but more so exciting to see a decades long debate end.
 Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989).
 42 U.S.C.A. § 2000e-2 (Westlaw through Pub. L. No. 155-281).
 Price Waterhouse, 490 U.S. at 251 (defines sex stereotyping as retaliating against someone who does not “match the stereotype associated with their group”).
 EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560, 567 (6th Cir. 2018).
 Id. at 566-67.
 See Harris Funeral Homes, 663 F.3d at 1316-17; see also Zarda v. Altitude Express, 883 F.3d 100, 113 (2d Cir. 2018); Evans v. Georgia Reg’l Hosp., 850 F.3d 1248, 1255-57 (11th Cir. 2017); Etsitty v. Utah Transit Auth., 502 F.3d 1215, 1222 (10th Cir. 2007).
 Jacob Passy, As Trump administration seeks to redefine gender, workplace discrimination is still a problem for transgender Americans, MarketWatch (Oct. 22, 2018, 11:06 AM), https://www.marketwatch.com/story/for-transgender-americans-workplace-discrimination-isnt-limited-to-the-military-2017-07-26.
 See Brief for the Federal Respondent in Opposition, EEOC v. R.G. & G.R. Harris Funeral Homes, 884 F.3d 560 (6th Cir. 2018) (No. 18-107), 19-23.
 Id. at 17.
 Governor Cuomo Signs Landmark Legislation Protecting LGBTQ Rights, N. Y. State, https://www.governor.ny.gov/news/governor-cuomo-signs-landmark-legislation-protecting-lgbtq-rights (last visited Apr. 26, 2018).
 Bill Chappell, Supreme Court Will Hear Cases On LGBTQ Discrimination Protections For Employees, NPR (Apr. 22, 2019, 1:52 PM), https://www.npr.org/2019/04/22/716010002/supreme-court-will-hear-cases-on-lgbtq-discrimination-protections-for-employees.