Discrimination Based on Gender Stereotypes
The law described “transgender” as "[a]n umbrella term that may be used to describe people whose gender expression does not conform to cultural norms and/or whose gender identity is different from their sex assigned at birth. Transgender is a self-identity, and some gender nonconforming people do not identify with this term." See Trans Bodies, Trans Selves: A Resource for the Transgender Community 620 (Laura Erickson-Schroth, ed. 2014).
The courts have broadly characterized an individual's transgender status as part of that individual's "sex" or "gender" identity. See, e.g., Smith v. City of Salem, Ohio, 378 F.3d 566, 572—73 (6th Cir. 2004) (holding that plaintiff with gender identity disorder sufficiently stated constitutional and Title VII sex discrimination claims based on his allegations that he was discriminated against because of his gender non-conforming behavior and appearance); Radtke v. Miscellaneous Drivers & Helpers Union Local No. 638 Health, Welfare, Eye & Dental Fund, 867 F. Supp. 2d 1023, 1032 (D. Minn. 2012) (explaining that "the 'narrow view' of the term 'sex' in Title VII" in Sommers v. Budget Mktg., Inc., 667 F.2d 748, 750 (8th Cir. 1982), "'has been eviscerated by Price Waterhouse.'") (quoting Smith, 378 F.3d at 573).
As such, discrimination based on gender stereotypes is prohibited. Such discrimination may take different forms including hostile environment and disparate treatment. Interestingly, courts have concluded that requiring individuals to use bathrooms consistent with their birth or biological sex rather than their gender identity is not discriminatory conduct in violation of federal and state constitutions and statutes. See, e.g., Johnson v. Fresh Mark, Inc., 337 F. Supp. 2d 996, 1000 (N.D. Ohio 2003) aff'd, 98 F. App'x 461 (6th Cir. 2004) (explaining that employer did not transgress Title VII because it "did not require Plaintiff to conform her appearance to a particular gender stereotype, instead, the company only required Plaintiff to conform to the accepted  principles established for gender-distinct public restrooms"); Hispanic Aids Forum v. Bruno, 16 A.D.3d 294, 792 N.Y.S. 2d 43 (N.Y. App. Div. 2005) (holding complaint failed to allege a claim for relief under New York Human Rights Laws because plaintiff did not allege that transgender individuals were selectively excluded from bathrooms, but that they were excluded from certain bathrooms on the same basis as all biological males and females—biological sexual assignment, which is not impermissible discrimination); Goins v. West Group, 635 N.W. 2d 717 (Minn. 2001) (holding defendant's designation of restroom use, applied uniformly, on the basis of biological gender rather than gender identity was not discrimination under the Minnesota Human Rights Act). Similarly, courts have concluded that sex-segregated bathrooms are not impermissible sex discrimination. See, e.g., Causey v. Ford Motor Co., 516 F. 2d 416 (5th Cir. 1975). Likewise, at least one court has reasoned that prohibiting a transgender student from using a restroom consistent with his or her gender does not constitute discrimination under Title IX, because "it would be a stretch to conclude that a 'restroom,' in and of itself, is educational in nature and thus an education program" as required to state a prima facie case under the statute. See Doe v. Clark Cnty. Sch. Dist., No. 206-cv-1074-JCM-RJJ, 2008 U.S. Dist. LEXIS 71204, 2008 WL 4372872, at *3 (D. Nev. Sept. 17, 2008).
Often, transgender individuals face harassment and bullying at work. It is unlawful under the Federal and State law to discriminate against a transgender individual due to his/her gender.