For the First Time, Federal Judge in Texas Finds that Title VII Protects Transgender Workers

By Adam Polaski • April 10, 2018 • 2:44 pm

On April 5, 2018, a federal judge for the Southern District of Texas ruled in Wittmer v. Phillips 66 Company for the first time in Texas that Title VII of the Civil Rights Act of 1964 protects people from employment discrimination based on gender identity.

Read the ruling here.

Although Judge Lee Rosenthal, who serves as chief judge in the Houston-based court, ultimately determined that the plaintiff, Nicole Wittmer, did not face discrimination because of her gender identity, his decision is of significant importance, marking the first decision in Texas that Title VII’s protections extend to people who face discrimination based on their gender identity.

The case is the latest in a long line of lawsuits that ask courts to recognize that Title VII of the Civil Rights Act protects LGBTQ workers from discrimination. In recent years, legal consensus has grown, with judges, courts, and federal agencies increasingly coming to the conclusion that federal law prohibits discrimination against LGBTQ people. Legal advocates are aiming toward a clear goal – that the U.S. Supreme Court find that “sex discrimination” encompasses discrimination based on sexual orientation and gender identity.

In his ruling Judge Rosenthal cited three federal appellate courts that have recently determined that “sex discrimination” encompassed discrimination based on sexual orientation or gender identity. The April 2017 case Hively v. Ivy Tech Community College and the February 2018 decision in Zarda v. Altitude Express were en banc decisions from the 7th Circuit and 2nd Circuit, respectively, finding that discrimination based on sexual orientation violated federal law. A March 2018 decision from the 6th Circuit in EEOC and Aimee Stephens v. Harris Family Funeral Homes affirmed longstanding circuit precedent that Title VII prohibits discrimination based on gender identity.

Judge Rosenthal wrote:

“Although the Fifth Circuit has not yet addressed the issue, these very recent circuit cases are persuasive. They consistently recognize transgender status and orientation as protected classes under Title VII, applying the long-recognized protections against gender- or sex-based stereotyping. Applying these recent cases, the court assumes that Wittmer’s status as a transgender woman places her under the protections of Title VII.”

Nearly all of the nation’s 13 federal appellate courts have considered whether sex discrimination amounts to discrimination based on LGBTQ identity – and in recent years several of these appellate courts have issued landmark decisions in favor of LGBTQ non-discrimination.

Three federal appellate courts have explicitly ruled that federal laws prohibiting sex discrimination also prohibit discrimination based on gender identity or expression. The 6th Circuit and 11th Circuit have ruled in favor of transgender workers under Title VII, and the 7th Circuit has ruled that transgender students are protected under Title IX. Positive case law also exists in favor of transgender people in the 1st Circuit8th Circuit, and 9th Circuit.

Read more about LGBTQ nondiscrimination in the courts in Freedom for All Americans’ Litigation Tracker. 

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