6 - Sexual Orientation and Gender Identity Discrimination as Sex Discrimination

Summary

Chapter 6 concludes that discrimination based on sexual orientation, gender identity, or gender expression is sex discrimination under Title VII. In Etsitty v. Utah Transit Authority, the Tenth Circuit held that a bus company did not violate Title VII when it fired a transgender driver for using women’s restrooms along her route. The court concluded that discrimination based on transgender status does not violate Title VII’s prohibition of discrimination “because of sex,” and that the plaintiff was fired because of bathroom use, not discrimination. The rewritten opinion reverses course: the employer’s behavior violated both Title VII and the Equal Protection Clause. Hively v. Ivy Tech Community College held that discrimination based on sexual orientation is illegal sex discrimination. The rewritten opinion arrives at the same conclusion, but offers a more humanistic lens through which to view the legal question posed. The rewritten opinion relies on several legal theories to support its conclusion, including but-for causation, sex stereotyping, sex-plus, associational (or relationship) discrimination, and a unique use of the motivating factor provision in Title VII.