A Federal Judge in Texas has ruled that Title VII of the Civil Rights Act of 1964 bars employment discrimination based on gender identity or sexual orientation:
For the first time in Texas, a federal judge said LGBT workers should be protected from employment discrimination based on their gender identity and sexual orientation.
Judge Lee Rosenthal, the chief judge in the Houston-based Southern District Court of Texas, said in a decision last week that federal employment law protecting workers from discrimination based on sex also applies to sexual orientation and gender identity.
Nicole Wittmer, an engineer who alleged she wasn’t hired by energy company Phillips 66 because she’s transgender, couldn’t prove her claim, Rosenthal ruled. But if she had proof, the judge added, Wittmer would have had cause to sue under federal law.
Rosenthal’s ruling doesn’t mean it’s suddenly illegal in Texas to discriminate against LGBT workers. But it may be cited in the future by others who believe their sexual orientation or gender identity was a factor in workplace decisions, Wittmer’s lawyer told The Dallas Morning News.
“We’re certainly disappointed that this particular ruling did not fall in her favor,” Alfonso Kennard Jr. said Monday. “The silver lining here is it has helped to define the landscape for people who have been discriminated [against] in the workplace due to their transgender status.”
“This ruling is earth-shattering — in a good way.”
Federal judges in several other states have already decided that lesbian, gay, bisexual and transgender workers are also covered under Title VII, the civil rights era-law that prohibits sex discrimination in the workplace.
But there has never been such a decision by a federal court in Texas, Louisiana or Mississippi, the states covered by the 5th U.S. Circuit Court of Appeals. Texas state law also doesn’t prohibit employment discrimination based on sexual orientation or gender identity, which means it’s still legal for Texas employers to fire or fail to hire someone because they’re LGBT.
Rosenthal, who was appointed in 1992 by President George H.W. Bush, said recent decisions in other jurisdictions helped shape her decision.
“Within the last year, several circuits have expanded Title VII protection to include discrimination based on transgender status and sexual orientation,” Rosenthal wrote. “Although the Fifth Circuit has not yet addressed the issue, these very recent circuit cases are persuasive. … The court assumes that Wittmer’s status as a transgender woman places her under the protections of Title VII.”
Harper Jean Tobin, policy director at the National Center for Transgender Equality, characterized the decision as part of a growing consensus that Title VII covers trans workers as well.
“This ruling, along with dozens of others, shows that discrimination against transgender workers is illegal under federal law,” Tobin said in a prepared statement. ”This is the overwhelming approach of the courts across the country over the last decade.”
Dale Carpenter, a constitutional law and LGBT rights expert at Southern Methodist University, said the ruling was the first of its kind in Texas.
It goes beyond a 2008 case in which another federal judge in Texas said gender nonconforming persons could not be discriminated against in the workplace, he said, because this one also recognizes transgender status as a protected trait.
“It is significant,” Carpenter said of Rosenthal’s decision. Agreeing with Tobin, he called it “part of a growing trend around the country.”
The case wasn’t exactly a victory for the Plaintiff notwithstanding the fact that the Court accepted her legal argument. While the Court did agree with the argument that discrimination based on sexual orientation or gender identity, it also ruled that the Plaintiff had failed to present sufficient evidence that the decision to rescind the job offer that was made to her was based on her status as a transgender woman. Accordingly, the Court granted the employer’s Motion for Summary Judgment and dismissed the Plaintiff’s case. While the Plaintiff can appeal this decision to the Fifth Circuit Court of Appeals, the fact that the decision was based on the factual record presented by the Plaintiff means that it will be difficult for her to succeed on appeal. Specifically, Rule 52 of the Federal Rules of Civil Procedure states that finding of fact cannot be set aside unless they are “clearly erroneous” based on the record on appeal and the appellate court is required to give “due regard to the opportunity of the trial court to make determinations on issues such as the credibility of witnesses. Given that, it is generally speaking much more difficult to convince a Court of Appeals to overturn a case where the decision is based on findings of fact than it is to be successful on appeal based on the trial court’s conclusion of law. All of this suggests that the Plaintiff may decide not to appeal the case at all, but she still has plenty of time to make that decision.
As the quoted article notes, the issue of whether or not Title VII’s protections extend to LGBT Americans has been the subject of several conflicting court rulings in recent years. Most recently, the Second Circuit Court of Appeals ruled that those protections did apply to discrimination based on sexual orientation, a ruling that overruled a prior ruling by a three-judge panel of the same court. Last year, a three-judge panel on the 11th Circuit Court of Appeals held that Title VII did not apply to discrimination based on sexual orientation.
To a large degree, the court in that particular case based its ruling on the fact that there was no evidence in the record that banning discrimination based on sexual orientation was within the contemplation of Congress when the Civil Rights Act was passed in 1964. One moth after that ruling, though, the Seventh Circuit Court of Appeals ruled in an en banc opinion that discrimination based on sexual orientation was “a form of sex discrimination” and therefore covered by the protections of Title VII. In December, the Supreme Court declined to hear an appeal in the 11th Circuit case. To date none of the other cases have made their way to the nation’s highest court and this particular case would take at least another year to get there assuming that the Plaintiff does decide to appeal the court’s ruling dismissing her case.
Notwithstanding the court’s ruling in this case, the argument that the protections of the Civil Rights Act of 1964 extend to discrimination based on gender identity or sexual orientation seem to be fairly tenuous. The legislative history of the law makes clear that the ban on discrimination based on “sex” was intended to cover situations where someone was not hired, fired, or treated unfairly on the job based on their gender, not based on whether they were gay, lesbian, or transgender. Put simply, this was not an issue at the time the law was drafted and it’s difficult to imagine that the legislators who voted in favor of the law intended for it to be interpreted to apply to discrimination based on gender identity or sexual orientation. On some level, I suppose one could argue that at the very least the law can be interpreted to bar discrimination based on “gender identity,” as some courts have done, but that doesn’t provide a basis for arguing that discrimination based on “sex” should also cover sexual orientation.
This has been most explicitly been recognized at the state level, where many states and localities have passed laws that bar discrimination based on sexual orientation by government agencies and by private businesses. At the Federal level, many people have been arguing in favor of a proposed law known as the Employment Non-Discrimination Act, which would expand Federal anti-discrimination law regarding employment to cover discrimination based on sexual orientation That law has been pending before Congress in one form or another for several years now but has not been brought up for a floor vote in either the House or the Senate. Instead of relying on the courts to deliver a very creative interpretation of a law that was passed fifty-four years ago, it seems to me that it would be more appropriate to leave the matter to the legislature where it belongs. It should not be the job of Judges to read things into statutes, or the Constitution for that matter, that clearly aren’t there.
None of this is to suggest that discrimination based on sexual orientation or gender identity isn’t wrong on some moral level, of course. Ideally, any discrimination based on anything other than one’s fitness for a particular job and job performance is unfair on some level. However, that is a different thing from the question of whether a law that was intended to bar one thing should be interpreted to bar something else. For better or worse, it is the job of the Legislative Branch to make law, the job of the Executive Branch to execute those laws, and the job of the Judiciary to interpret those laws in light of the Constitution. One can make the case that in our current political climate, the system isn’t exactly working that way and that it’s unlikely that something like ENDA is going to pass Congress unless Democrats gain control of both the House and the Senate, a filibuster-proof majority in the upper chamber, and a Democratic President, however, that’s immaterial to the situation. Judges should not be stepping in to do what some people think Congress should do just because Congress isn’t going to do it. That’s not how the law works, that’s not how the balance of powers set forth in the Constitution was meant to work, and that’s not how Judges should be doing their jobs.
Here’s the opinion:
Wittmer v. Phillips 66 by Doug Mataconis on Scribd
