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Sex discrimination law applies to transgender cases, EEOC rules

Apr. 24, 2012 - 04:58PM   |  
By STEPHEN LOSEY   |   Comments

Discrimination complaints based on transgender status should be adjudicated as sex discrimination complaints, the Equal Employment Opportunity Commission ruled last week.

The April 20 ruling responds to a case in which the Justice Department was going to consider part of a transgender woman's discrimination complaint under an internal process that offers fewer remedy and appeal rights than sex discrimination law does.

Mia Macy, a transgender woman who unsuccessfully sought a contractor job with Justice's Bureau of Alcohol, Tobacco, Firearms and Explosives, said the discrimination she faced "was painful both personally and financially, and led to the loss of my family's home to foreclosure." But she said she was glad to be part of what she called a groundbreaking decision.

The ruling will ensure transgender people have more avenues to pursue discrimination complaints not just at other federal agencies, but nationwide.

"No one should be denied a job just for being who they are," Macy said.

Macy, a police detective in Phoenix, applied for a job at ATF's Walnut Creek, Calif., crime laboratory in December 2010, while she was still presenting as a man. Macy said the laboratory in January 2011 told her the job was hers once her background check was finished. Macy said she told the contractor filling the laboratory's position on March 29, 2011, that she was in the process of transitioning from male to female, and asked the contractor to tell ATF. On April 3, Macy said, she was told that the agency had been told about her gender change. Five days after that, Macy said the contractor told her that due to ATF's budget restrictions, the job was no longer available.

Macy was concerned and contacted an ATF EEO counselor, who she said told her that someone else who the crime lab claimed was further along in the background investigation process had been hired for the job. Macy believed that ATF hired the other person, and then incorrectly told her the job had been cut, because she had revealed herself as a transgender woman. Transgender Law Center filed a complaint with Justice on her behalf alleging discrimination based on sex, gender identity as a transgender woman and sex stereotyping.

Justice has two separate tracks for adjudicating such claims: Sex discrimination complaints are considered under Title VII of the 1964 Civil Rights Act, and sexual orientation and gender identity discrimination complaints fall under the separate, weaker internal process.

Both tracks have the same EEO time frames and complaint processes including the use of alternative dispute resolution, an EEO investigation and a final agency decision. But the Title VII sex discrimination complaint process allows for more remedies, allows complainants to request a hearing before an EEOC administrative judge, and gives complainants the right to appeal the final agency decision to EEOC.

Macy went to EEOC to appeal Justice's decision to split up adjudication of her case, arguing that it was a "de facto dismissal" of her Title VII claim of discrimination based on gender identity and transgender status.

EEOC ruled that transgender and gender identity claims should be considered under the stronger Title VII sex discrimination prohibition, and ordered Justice to process Macy's case under Title VII.

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