Thursday, February 21, 2019

5th Circuit Court of Appeals Rejects Title VII Protection Against Transgender Discrimination

In a split from our own 7th Circuit and other federal appeal courts in the country, the 5th Circuit Court of Appeals recently held that Title VII does not afford protection against discrimination based on gender identity. 

In the case of Wittmer v. Phillips 66 Co., the plaintiff, who identifies as female, claims that the petrochemical company refused to hire her as an engineer because of her transgender status. In a clear split from the 6th, 7th and 11th Circuits, the court in Wittmer noted it was basing its ruling on a previous decision in that circuit. The court said its 1979 decision in Blum v. Gulf Oil Corp that gay bias is not banned by Title VII also applied to transgender discrimination.

The 5th Circuit’s ruling seems to all but assure that the U.S. Supreme Court will resolve the split among the Circuits on this highly charged topic. While courts who have denied Title VII protections to those claiming discrimination based on transgender status, they have not rejected the concept that transgender individuals deserve protection against discrimination. Rather, these courts find that Title VII does not extend to transgender discrimination as the law protects against discrimination based on sex, among other things, which does not include gender identity.

Illinois offers protection against gender identity discrimination under the Illinois Human Rights Act, but for individuals in states where there is no state or local law protecting such rights, they may find themselves without a judicial remedy without expansion of Title VII protections.