Transgender Discrimination

“Does the Equal Rights Amendment prohibit discrimination on the basis of transitioning or transgender status?”

  • The Equal Rights Amendment states: “Equality of rights under the law shall not be denied or abridged by the United States or any state on account of sex.”  Whether the amendment protects transgender rights turns on the meaning of “sex.”
  • In the context of civil rights cases, a majority of the circuit courts that have interpreted “sex” concluded that the proscription against sex discrimination prohibits discrimination on the basis of transitioning or transgender status.  To date, only the Tenth Circuit has held that discrimination against transgender employees does not necessarily violate Title VII, but even that court recognizes that discrimination on the basis of transitioning or transgender status may violate Title VII under some circumstances.  Of recent decisions, only those from a district court in the Northern District of Texas and one in the Western District of Pennsylvania have held that Title IX does not apply to discrimination on the basis of gender identity or transgender status.
  • Although Titles VII and IX cases may illuminate the meaning of “sex,” they are not binding on any court’s interpretation of the word in the context of the Equal Rights Amendment, which, of course, has yet to be examined by courts.
  • With a new amendment in the Constitution, judges will be free to apply any of numerous theories for interpreting constitutional provisions, from originalism to structuralism and more.  In doing so they may look to what the word “sex” meant to Congress when it proposed the amendment in the early 1970s, to Congress’s intent with the amendment, or to contemporary usage in addition to how courts have interpreted the word in other contexts.