A characteristic treated as a protected basis for prohibiting harassment or discrimination in rules governing lawyer and judicial conduct as well as in employment statutes.
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How its tested
Common Examples
2
Lawyer's Misgendering During Deposition
Gordon Gray represents a corporate defendant in a contract dispute. During a deposition, Gray repeatedly refers to opposing counsel's transgender associate using pronouns inconsistent with the associate's stated gender identity and makes dismissive remarks about the associate's appearance. The conduct occurs in connection with pending litigation and is observed by multiple attorneys. The state disciplinary authority later investigates whether Gray violated professional conduct standards.
Employer Termination of Transgender Worker
Gideon Graves works as a customer service representative at Gateway Bank. After Graves informs the bank of a transition and begins presenting consistent with a female gender identity, the supervisor terminates Graves for failing to conform to the bank's expectations for male employees. Graves files a charge alleging the termination was based on gender identity. The claim proceeds on the theory that the decision necessarily involved sex-based considerations.
Bostock v. Clayton County, Georgia140 S. Ct. 1731, 1739 (2020)
The three cases consolidated before the Supreme Court arose when employers fired long-time employees shortly after the employees revealed their homosexual or transgender status.
Gerald Bostock worked for Clayton County, Georgia, as a child welfare advocate whose leadership earned the county national awards. After a decade with the county, Bostock began participating in a gay recreational softball league. Influential community members then made disparaging comments about his sexual orientation, and he was fired for conduct unbecoming a county employee.
Donald Zarda worked as a skydiving instructor at Altitude Express in New York for several seasons. After mentioning that he was gay, he was fired days later.
Aimee Stephens worked at R. G. & G. R. Harris Funeral Homes in Michigan, presenting as male when hired. After two years she began treatment for gender dysphoria and wrote a letter stating she planned to live and work full-time as a woman. The funeral home fired her before she left for vacation.
Each employee sued under Title VII of the Civil Rights Act of 1964 alleging unlawful discrimination on the basis of sex. The Eleventh Circuit held that Title VII does not prohibit employers from firing employees for being gay and dismissed Bostock's suit as a matter of law. The Second Circuit allowed Zarda's claim to proceed on the ground that sexual orientation discrimination violates Title VII. The Sixth Circuit reached the same conclusion in Stephens's case regarding transgender status.
Both Zarda and Stephens passed away during the proceedings, but their estates continued to press the claims. The Supreme Court granted certiorari to resolve the disagreement among the courts of appeals over the scope of Title VII's protections for homosexual and transgender persons.
Does repeated use of incorrect pronouns after correction manifest bias based on gender identity?
Yes. Judicial conduct rules prohibit judges from manifesting bias or prejudice by words or conduct on the basis of gender identity. Persistent misgendering after a party has requested different pronouns, combined with dismissive comments about pronouns or identities, constitutes conduct that signals disregard for the party's gender identity and violates the duty of impartiality.
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Can a judge's final ruling on neutral procedural grounds excuse earlier biased comments about gender identity?
No. The duty to perform judicial duties without bias applies to language, demeanor, and control of proceedings, not merely the written order. Even when the final disposition rests on nondiscriminatory grounds, repeated misgendering and jokes about invented identities during the hearing demonstrate that bias influenced the conduct of the proceeding.
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Does Title VII prohibit an employer from firing a worker for being transgender?
Yes. An employer who fires a transgender person for being transgender necessarily discriminates because of sex. The decision rests on the employer's expectations about how persons of one sex should identify or present, which the statute forbids.
Supporting sources
138 S. Ct. 2448 (2018)
…collective bargaining on controversial subjects such as climate change, the Confederacy, sexual orientation and gender identity, evolution, and minority religions. These are sensitive political topics, and they are undoubtedly matters of profound “‘value and concern to the public.’” Snyder…