Sex-Based Employment Protections for Transgender Individuals: A Study of Title VII Legal Cases in the Sixth Circuit

Abstract

In the U.S., the transgender community disproportionately experiences a rate of unemployment three times that of the national average. These nearly 1.4 million individuals receive no explicit federal employment protections. Though judges have historically concluded that Title VII of the Civil Rights Act of 1964 does not offer such protections, the Sixth Circuit recently concluded that transgender discrimination is prohibited under Title VII. A study was conducted to discern what lead to the Sixth Circuit explicitly extending Title VII’s sex-based protections to transgender individuals. Analysis consisted of data from historical Title VII legal cases—citing sex-based discrimination— brought by, or on behalf of, transgender individuals in the Sixth Circuit. The sample included 20 court records from 11 legal cases identified through the Nexis Uni database. Both a thematic analysis and a Critical Discourse Analysis (CDA) were conducted. The thematic analysis illustrated four distinct steps taken by the Sixth Circuit—in addition to the two steps previously taken by other Circuits and the Supreme Court. Each stage revealed small deviations in statutory interpretation and application, which lead to a marked change in the legal discourse on Title VII’s sex-based discrimination prohibition. The CDA compared the Circuit’s starting discourse to its more recent discourse and found judges’ moved from a passive to an active role in constructing the legal discourse. Overall, the study illustrates the judicial branch of government’s influential impact on employment rights, and more broadly, social justice. Further, the study presents legal engagement as essential to the pursuit of social change. Given social work’s value of social justice, forensic participation is a suitable addition to the social work toolkit.