Less than four months ago, Attorney General Eric Holder announced that the Department of Justice had concluded that the transgendered are among the classes of persons protected, unbeknownst to the framers of the legislation at the time, by Title VII of the Civil Rights Act of 1964. Tuesday's press release announcing the filing of a lawsuit against Southeastern Oklahoma State University reiterated the new discovery, noting that Justice "takes the position that Title VII’s prohibition against sex discrimination is best read to extend the statute’s protection to claims based on an individual’s gender identity, including transgender status." But as the press release also makes clear, the fact that this novel interpretation has only existed for four months will not stop Justice from suing institutions that were operating under a different set of rules for the intervening half century.
The press releases lays out the facts of the case as follows:
Rachel Tudor began working for Southeastern as an Assistant Professor in 2004. At the time of her hire, Tudor presented as a man. In 2007, Tudor, consistent with her gender identity, began to present as a woman at work. Throughout her employment, Tudor performed her job well, and in 2009, she applied for a promotion to the tenured position of Associate Professor. Southeastern’s administration denied her application, overruling the recommendations of her department chair and other tenured faculty from her department. The United States’ complaint alleges that Southeastern discriminated against Tudor when it denied her application because of her gender identity, gender transition and non-conformance with gender stereotypes.
Tudor, backed by Justice, further accuses the university of wrongful termination of employment in retaliation for Tudor's filing of a complaint with the Equal Employment Opportunity Commission (EEOC):
In 2010, Tudor filed complaints regarding the denial of her application for promotion and tenure. Shortly after it learned of her complaints, Southeastern refused to let Tudor re-apply for promotion and tenure despite Southeastern’s own policies permitting re-application. At the end of the 2010-11 academic year, Southeastern and RUSO terminated Tudor’s employment because she had not obtained tenure.
The EEOC, which has partnered with Justice in bringing this lawsuit, already made history in September of last year by filing two lawsuits in federal court alleging discrimination against transgendered employees.
For its part, via a statement as reported by the Washington Post, the university is "confident in its legal position and its adherence to all applicable employment laws," but would not discuss the case due to the pending litigation.
Although this lawsuit is the first of its kind by the Justice Department, others may be in the works since acts preceding the announcement of the new Title VII interpretation are apparently fair game. Not only might this have various institutions wondering if they will find themselves targets of transgender-related lawsuits in the future, but also might have them wondering what other standards they may retroactively run afoul of if the Justice Department takes yet another look at Title VII somewhere down the road.