Using Religion to Protect Transgender Employees From Discrimination

Abstract

Whether Title VII of the Civil Rights Act of 1964 prohibits discrimination against transgender employees is uncertain. Federal appellate courts either disagree or are undecided on this issue, and the last two presidential administrations have taken conflicting positions as well. Disagreement centers on whether Title VII’s proscription against discrimination “because of . . . sex” is broad enough to encompass transgender discrimination. Some courts define sex narrowly to mean only one’s biological sex assigned at birth, whereas others construe it more expansively to include gender identity. After decades of silence, the Supreme Court has agreed to take a first look at this issue during its 2019-2020 term.

This Article assesses whether Title VII’s protections can be extended to transgender employees without wading into the debate over the statutory meaning of sex, by instead analogizing transgenderism to religious conversion. A few district courts, the EEOC, and most recently the Sixth Circuit have made this argument, reasoning that because discrimination against an employee who converts from one religion to another constitutes discrimination “because of . . . religion,” discrimination against an employee who transitions from one sex to the other must likewise constitute discrimination “because of . . . sex.” This Article scrutinizes this analogy, questioning whether sex and religion are comparable protected traits, whether transgenderism and religious conversion are comparable processes, and whether Title VII actually prohibits discrimination against religious converts. The conversion analogy not only holds up to this scrutiny but emerges stronger as a result. It thus offers a path forward to protect transgender employees from discrimination that sidesteps the thorny issues about the meaning of sex that have plagued transgender discrimination jurisprudence in the past.

Keywords: Employment Discrimination, Transgender Discrimination, Religion, Religious Discrimination, Gender Identity, Title VII