Sexual Orientation, Gender Identity, and the Federal Government

Gender Identity

Pur­suant to a new exec­u­tive order, dis­crim­i­na­tion against fed­eral employ­ees based on gen­der iden­tity and trans­gen­der sta­tus con­sti­tutes sex dis­crim­i­na­tion under exist­ing Exec­u­tive Order 11246. On July 21, 2014, Pres­i­dent Barack Obama signed Exec­u­tive Order 13672, adding “sex­ual ori­en­ta­tion” and “gen­der iden­tity” to the list of pro­hib­ited bases of dis­crim­i­na­tion by fed­eral gov­ern­ment con­trac­tors and adding “gen­der iden­tity” as a pro­tected cat­e­gory for fed­eral employ­ees. In the Order, Pres­i­dent Obama directed the Sec­re­tary of the Depart­ment of Labor (DOL) to pre­pare reg­u­la­tions to imple­ment the require­ments of the order within 90 days. The DOL’s Office of Fed­eral Con­tract Com­pli­ance Pro­grams (OFCCP) is the agency tasked with enforc­ing anti-discrimination laws that apply to gov­ern­ment con­trac­tors, includ­ing Exec­u­tive Order 11246. On August 19th, 2014, the OFCCP issued Direc­tive 2014-02, which “clarif[ies] that exist­ing agency guid­ance on dis­crim­i­na­tion on the basis of sex under Exec­u­tive Order 11246, as amended, includes dis­crim­i­na­tion on the bases of gen­der iden­tity and trans­gen­der status.”

The OFCCP enforces Exec­u­tive Order 11246 pur­suant to Title VII of the Civil Rights Act of 1964 and inter­pret­ing case law. The recent direc­tive reflects changes in cur­rent Title VII law, and specif­i­cally cites Macy v. Holder, EEOC Appeal No. 0120120821, 2012 WL 1435995 (E.E.O.C. Apr. 20, 2012), a case in which the EEOC found that dis­crim­i­na­tion on the basis of gen­der iden­tity, change of sex, and/or trans­gen­der sta­tus is cog­niz­able under Title VII. In Macy, a trans­gen­der police detec­tive was denied a job with the Bureau of Alco­hol, Tobacco, and Firearms (ATF) after inform­ing the ATF that she was in the process of tran­si­tion­ing from male to female. The EEOC unan­i­mously deter­mined that this was dis­crim­i­na­tion “on the basis of sex,” a pro­tected cat­e­gory under Title VII.

Like sev­eral fed­eral courts have done, see, e.g., Price Water­house v. Hop­kins, 490 U.S. 228 (1989); Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011),the EEOC relied on the the­ory that dis­crim­i­na­tion based on gen­der non-conformity is sex dis­crim­i­na­tion because it relates to the sex of the vic­tim. In Macy, the EEOC also noted that Title VII’s pro­hi­bi­tion on gen­der dis­crim­i­na­tion “encom­passes not only a person’s bio­log­i­cal sex but also the cul­tural and social aspects asso­ci­ated with mas­culin­ity and fem­i­nin­ity.” Macy 2012 WL 1435995 at *6. Thus, sex-based dis­crim­i­na­tion occurs any­time it relates to the sex of the vic­tim, whether moti­vated by sex stereo­typ­ing or any other rea­son, such as an employer’s dis­com­fort with an employee’s gen­der iden­tity or trans­gen­der status.

U.S. Depart­ment of Labor Sec­re­tary Tom Perez recently stated: “Our work­force and our entire econ­omy are strongest when we embrace diver­sity to its fullest, and that means open­ing doors of oppor­tu­nity to every­one and rec­og­niz­ing that the Amer­i­can Dream excludes no one.” We agree. How­ever, the reach of exec­u­tive orders are lim­ited and only apply to the fed­eral civil­ian work­force and fed­eral con­trac­tors and sub­con­trac­tors. Although Exec­u­tive Order 13672 and Direc­tive 2014-02 are a step for­ward, more com­pre­hen­sive advance­ment in LGBT employ­ment rights requires fed­eral legislation.