Charged with enforcing federal employment discrimination statutes, the Equal Employment Opportunity Commission (EEOC or Commission) has been instrumental in protecting individual rights since its inception in 1965. (1) Although the EEOC's decisions are not binding on the judiciary, (2) the Supreme Court has recognized that its interpretations "are entitled to great deference" (3) and "constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance." (4) In this respect, EEOC decisions have powerful informal authority, even if they lack the precedential value of court opinions. (5) Over the last few years, the Commission has worked to advance lesbian, gay, bisexual, and transgender (LGBT) rights. (6) Recently, in Macy v. Holder, (7) the EEOC held that claims of transgender discrimination are cognizable under Title VII of the Civil Rights Act of 1964, (8) which prohibits employment discrimination because of sex. (9) Though the EEOC recognized that transgender women are women, it articulated theories of discrimination that are in tension with that recognition. Further, it overlooked a text-based approach to including transgender discrimination within the scope of Title VII that courts have not yet considered: that transgender discrimination is based on sex because it is rooted in aversion to or assumptions about biological sex characteristics.
Mia Macy is a transgender woman. (10) Transgender persons, who form a small minority of the population, have a gender identity different from the one they were assigned at birth. (11) In contrast, most people are cisgender, meaning that their "assignment of sex at birth is congruent with their current gender identity." (12) As of December 2010, Macy had not yet transitioned to living full time as a woman and still presented publicly as a man. (13) She applied for a position in the Walnut Creek crime laboratory, part of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF or Bureau). (14) In two separate phone conversations, the Walnut Creek Director informed her that she could have the position as long as her background check did not uncover any problems. (15)
On March 29, 2011, Macy informed Aspen, the staffing firm responsible for filling the position, that she was "in the process of transitioning from male to female." (16) At her request, Aspen informed Walnut Creek of her transition. (17) Two days later, the Aspen investigator told Macy that he hoped to complete his report by the following week. (18) However, Macy never learned the results of her background check. Instead, Aspen informed her that the Walnut Creek position was no longer available due to federal budget restrictions. (19)
Suspicious of this sudden change, Macy contacted an Equal Employment Opportunity (EEO) counselor, who informed her that the position had not been cut; it had been given to another candidate who the ATF claimed was furthest along in the background-investigation process. (20) Arguing that this explanation was pretextual, Macy filed a formal complaint with the Bureau claiming discrimination based on gender identity, sex, and sex stereotyping. (21) The ATF responded that "gender identity stereotyping" claims could not be adjudicated under Title VII, and that it would instead process her claims according to Department of Justice (DOJ) policies pertaining to gender identity. (22) Macy objected because those policies provide fewer remedies and procedural rights than Title VII. (23) When the ATF reiterated its refusal to process her gender identity discrimination claim under Title VII, Macy appealed to the EEOC. (24)
The EEOC held that "claims of discrimination based on transgender status, also referred to as claims of discrimination based on gender identity, are cognizable under Title VII's sex discrimination prohibition." (25) The Commission remanded the claim to the ATF for further processing. (26) While recognizing that all of Macy's claims were "simply different ways of describing sex discrimination," (27) the Commission articulated various ways to state a valid claim and provided more thorough descriptions of two theories courts have advanced in the past: the sex-stereotyping approach, which describes discrimination against transgender individuals as rooted in gender stereotypes, and the per se approach, which posits that such discrimination is inherently sex discrimination because it relates to a change in sex. …