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Courts move toward transgender rights, but much depends on election

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The Equal Employment Opportunity Commission and the Obama Administration may prevail in their position that federal civil rights law protects transgender and gay individuals from discrimination, say experts, but much depends on the outcome of the November elections.

In the most recent case, the EEOC sued Plano, Texas-based Rent-A-Center Inc. on July 18, alleging it violated Title VII of the Civil Rights Act of 1964 in terminating a transgender employee.

In a statement, the EEOC said the company's managers disapproved of the employee's gender transition and found a pretext to fire her.

However, the rental firm said in a statement that the woman was fired because she did not have authorization to use a company truck for personal use. Rent-A-Center also said it has “zero tolerance for discrimination” and has a “diverse and inclusive culture.

The EEOC litigation comes amid considerable turmoil in this area. In May, 11 states sued the Obama Administration in response to its position, also espoused by the departments of Education and Justice, that transgender students should be able to use the restroom “consistent with their gender identity.”

Then earlier this month, 10 additional lawsuits reportedly were filed challenging the administration's position on transgender students.

In addition, 128 congressional Democrats earlier this month filed an unusual amicus brief urging the 2nd U.S. Circuit Court of Appeals in New York to rule that Title VII prohibits discrimination based on individual's sexual orientation. The EEOC also has filed an amicus brief in the suit, Matthew W. Christiansen v. Omnicom Group Inc. et al., on behalf of the gay man who alleges he was harassed by a supervisor.

Suits reflect changing times

Robin E. Shea, a partner at defense firm Constangy, Brooks, Smith & Prophete L.L.P. in Winston-Salem, North Carolina, said when Title VII was enacted, everyone would have understood sex to mean “the gender you were born with on your birth certificate, but some of those definitions have expanded over the years.”

“I think it would be better to have Congress enact a statute that specifically addresses this, or to amend Title VII to specifically protect discrimination based on sexual orientation and transgender status,” she said.

Still, she said the EEOC may prevail.

“There have already been court decisions” supporting that position, she said in citing last year's 1tth U.S. Circuit Court of Appeals ruling in Jennifer Chavez v. Credit Nation Auto Sales L.L.C., in which the court reinstated a transgender auto mechanic's sex discrimination case.

“My take is this whole area of the law is moving very rapidly,” which reflects a rapidly changing society, said Richard B. Cohen, an attorney at FisherBroyles L.L.P. in New York

Asked which side is likely to prevail, Mr. Cohen said: “I like to think the arc of history tends towards progress and justice.” As for the 2nd Circuit case, “I would give it better than even odds” that the lower court ruling in the employer's favor will be overturned.

However Sam Schwartz-Fenwick, a Chicago-based partner at Seyfarth Shaw L.L.P., said the courts have not been uniform in viewing the issue.

“You're only going to get clarity if Congress expressly passes a law that expressly extends protection on the basis of gender identity and gender expression, or if the Supreme Court rules” on the subject, he said. “Until you get that type of clarification, this is going to remain a very uncertain area of the law, where people really will continue to differ.”

Much will depend on who wins the November presidential election “and what if any steps are taken to try to unwind” the Obama administration's stance on the subject, he said.