A transgender police officer, who identifies as a male officer, filed a lawsuit in the U.S. District Court for the District of Nevada alleging sex discrimination pursuant to Title VII of the Civil Rights Act and related state law. Roberts v. Clark County Sch. Dist., 2016 U.S. Dist. LEXIS 138329 (D. Nev. Oct. 4, 2016).  Rather than being allowed to use the bathroom of the gender with which he identifies, the School District required Plaintiff to use a gender-neutral, single-person bathroom.

The Plaintiff and Defendant cross-moved for partial summary judgment on Plaintiff’s claim brought pursuant to Title VII.  Defendant argued that Title VII prohibits only discrimination based on biological sex, not gender identity (which is not specifically listed as a protected category under the statute).  The U.S. District Court, expanding the reach of the protected category of “sex,” denied Defendant’s motion and granted Plaintiff partial summary judgment on his Title VII claim. The court relied upon other appellate court rulings to hold that that sex stereotypes are included within Title VII’s protection of “sex.”  Specifically, the District Court held that “discrimination against a person based on transgender status is discrimination ‘because of sex’ under Title VII.”

Both the EEOC and now, an increasing number of courts and circuits, are interpreting Title VII’s prohibition against “sex” discrimination to include gender identity and gender stereotyping issues.  Accordingly, employers carefully should consider their bathroom and related policies that may draw distinctions based upon an employee’s gender – particularly those employers that operate in states without state laws that specifically include gender identity as a protected category.