Transgender rights are civil rights.
That’s what a jury in federal court appeared to conclude on Monday, when it agreed to award more than $1.1 million to a professor, Rachel Tudor, after she argued that the Southeastern Oklahoma State University had discriminated against her because she’s transgender.
Tudor said the university system had discriminated against her by, for example, denying her tenure, dictating the clothes she could wear, and restricting where she could go to the bathroom. She was fired in 2011 after she didn’t get tenure. She took her case to the US Equal Employment Opportunity Commission, launching the years-long legal battle.
But here’s the thing: Transgender people are not explicitly protected under federal or Oklahoma civil rights law. Tudor argued, though, that federal law prohibits discrimination against her due to its existing ban on discrimination based on sex.
This is based on a crucial legal argument by LGBTQ advocates, who have for years argued that federal civil rights law — by banning sex-based discrimination in the workplace, housing, and schools — protects trans people too.
According to this view, discrimination against people based on their gender identity is fundamentally rooted in prohibited sex-based expectations. For example, if someone discriminates against a trans woman, that’s largely based on the expectation that a person designated male at birth should identify as a man — a belief built on the idea of what a person of a certain sex assigned at birth should be like.
The jury agreed that Tudor had “proven by a preponderance of the evidence” that she was denied tenure due to her gender and that her employer retaliated against her for complaints about workplace discrimination. But it rejected her claim that she faced a “hostile work environment.”
Under President Barack Obama and Attorney General Eric Holder, the US Department of Justice sided with Tudor, accepting the broader interpretation of federal civil rights law, and sued the university. That changed with President Donald Trump and Attorney General Jeff Sessions, who take a narrower view of federal civil rights law and led the Justice Department to settle with the university instead of advancing the case further.
After the Justice Department’s decision, Tudor proceeded with her own case — and she won big on Monday.
This is just one jury settlement, but it signals the kind of change that LGBTQ activists are pushing nationwide to protect trans workers. While the Supreme Court has yet to verify the claim that sex-based discrimination bans protect trans people, lower courts, including some federal appeals courts, have consistently upheld the view. This could eventually lead to the Supreme Court ruling on the issue, and may eventually protect trans people nationwide from the kinds of discrimination they’ve faced for years — without explicit protections from the federal government or most state laws.
Most states don’t explicitly ban anti-LGBTQ discrimination
Under most states’ laws and federal law, trans people aren’t explicitly protected from discrimination in the workplace, housing, public accommodations, and schools. This means that a person can be fired from a job, evicted from a home, kicked out of a business, or denied the correct bathroom facility just because an employer, landlord, business owner, or school principal doesn’t approve of the person’s gender identity.
LGBTQ advocates argue, however, that federal civil rights law should already shield trans people from discrimination through their bans against sex-based discrimination.
This isn’t just a wild interpretation by LGBTQ advocates; there’s legal precedent for it. Joshua Block, an American Civil Liberties Union attorney who’s worked on these cases, cited a 1998 Supreme Court case, Oncale v. Sundowner Offshore Services Inc., in which the Court unanimously agreed that bans on sex discrimination prohibit same-sex sexual harassment. Same-sex sexual harassment was not something the authors of federal civil rights laws considered, but it’s something, the Supreme Court said, that a plain reading of the law protects.
“Oncale says that’s irrelevant whether [Congress] contemplated it,” Block previously told me. “That’s not how laws work. This is literal sex discrimination. Whether or not that’s what Congress was focused on doesn’t make it any less a type of discrimination covered by the statute.”
As more courts rule on the side of people like Tudor, this argument will gain more legal legitimacy. And that could lead to the effective expansion of federal civil rights law.