Macy v. Holder, Appeal No. 0120120821 (U.S. Equal Employment Opportunity Commission, Apr. 20, 2012)

The United States Equal Employment Opportunity Commission (EEOC) issued this decision on a discrimination complaint filed with the agency by a transgender woman who claimed that she was denied a job at a crime lab on the basis of her gender identity. The EEOC concluded that an em- ployer who fires or refuses an applicant a job because of that person's gender identity, pending sex change, or transgender status has the right to sue under Title VII of the Civil Rights Act of 1964 (Title VII), which makes gender-based discrimination illegal. This decision is the most sweeping, definitive ruling yet securing Title VII protections for transgender persons. In the absence of a federal law clearly prohibiting employment discrimination on the basis of sexual orientation and identity, such as a federal Employment Non-Discrimination Act protecting all queer people in government employment, this EEOC decision offers an important tool for LGBTQ workers and their advocates.

In December 2010 while presenting as a male, Macy, a police detective, began the application process for a Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) position at a crime laboratory. Macy asserted that on two separate occasions, the director of the laboratory stated that position was hers assuming no problems arose during her background check. In March 2011, Macy informed the background check investigator that she was in the process of transitioning from male to female and, five days later, she was informed that the position at the crime laboratory was no longer available. In June 2011, Macy filed an equal employment discrimination complaint with the ATF, alleging discrimination on the basis of her sex, gender identity, and sex stereotyping. The ATF agreed to process the claim "based on sex" under Title VII and EEOC regulations, and the claim based on "gender identity stereotyping" under the ATF's own "policy and practice." The complainant appealed to the EEOC, claiming that the EEOC had jurisdiction over her entire claim and that the ATF should investigate, under Title VII and EEOC regulations, her claim of discriminatory failure to hire based on her gender identity, change of sex, and/or transgender status.

The EEOC stated that Title VII's ban on sex discrimination prohibits discrimination on the basis of both biological sex and gender and that "'gender' encompasses not only a person's biological sex but also the cultural and social aspects associated with masculinity and femininity." Thus, discrimination against a person because that person is transgender is discrimination based on sex. The EEOC was not ruling on the merits of Macy's claim, but rather determined that the entire complaint, including its claims based on sex, gender identity, and sex stereotyping, fell under Title VII and should be sent back to the Bureau of Alcohol, Tobacco, Firearms, and Explosives for processing as a Title VII sex discrimination claim.