Title VII Protection for Transgender Individuals in the Sixth Circuit: A Critical Discourse Analysis

Background and Purpose: A last-minute amendment to Title VII of the Civil Rights Act of 1964 added a prohibition on sex-based employment discrimination. Since Congress has never explicitly defined ‘sex’ or explained their intention for the protection, federal judges have had little guidance when deciding Title VII sex-based discrimination cases. Yet, transgender individuals have been repeatedly told in various federal courts that sex-based discrimination does not extend to them. However, the Sixth Circuit has recently concluded that employment discrimination based on transgender or transitioning status is cognizable by Title VII’s sex-based prohibitions. To better understand this shift, a study was conducted to explore and compare how Sixth Circuit judges interpreted and applied Title VII employment protections to transgender individuals.

Methods: Data analyzed in the study are publicly available judge’s opinions that were collected from the Nexis Uni database. Initially, 20 court records associated with 11 legal cases met inclusionary criteria and were examined, resulting in the identification of four distinct stages of discourse (e.g. Differentiation, Early Connection, Pullback, and Explicit Protection). This paper reports on an examination of the Sixth Circuit’s initial discourse (Differentiation) compared to the Circuit’s more recent discourse (Explicit Protection). In doing so, seven case records associated with six legal cases were included in a Critical Discourse Analysis

Findings: Analysis illustrates that judges took a passive, procedural role during the Differentiation stage, concluding that transgender employment discrimination was not against the law, but that transgender individuals may still have access to protections. By applying the rules as they had been applied before, judges naturalized the hegemonic ideology that discrimination against transgender individuals was legal—and thereby acceptable. During the Explicit Protection stage, however, judges took an active role in creating a legal discourse that was inclusive of the transgender community and provided explicit protection. Judges challenged the existing legal doxa by deconstructing and reconstructing key concepts in a manner that legitimized transgender individuals through a queer theory lens.

Further examination identified external factors that could have contributed to the epistemological break during the Explicit Protection stage. First, the initial case that established the change was brought by the EEOC on behalf of the transgender employee, which is significant as the EEOC rarely brings cases—only when they serve a greater public interest. Second, a presidential administration change rolled back transgender rights and consequently increased the visibility of the community and their challenges. Finally, the submission of amicus curiae briefs indicated that the larger society was paying attention, which further established the case as having substantial weight and significance.

Conclusions and Implications: There were no clear legal changes that occurred between the Differentiation and the Explicit Protection stages of discourse, which both highlights the power possessed by judges and leads one to consider the role of external factors. Recognizing that legal discourse created by judges reaches beyond the courtroom to impact the larger society, it behooves us to be active in creating and supporting external factors that work to disrupt oppressive legal discourses and their impact on society.