DOJ Challenges Discrimination Against Transgender Professor

The Department of Justice has filed a lawsuit against Southeastern Oklahoma State University on behalf of a transgender professor who did not receive tenure after she transitioned on the job.  The university had hired Professor Rachel Tudor in 2004 to a tenure-track position in the English Department.  At the time, she presented as a man and went by a traditionally male name.  In 2007, she came out as transgender and began cultivating a female appearance consistent with her gender identity. She was later terminated in 2011 after having been denied tenure by the university.

She then filed a complaint with the EEOC, the federal agency that enforces employment discrimination laws. The EEOC investigated the case and determined that there was reasonable cause to believe that discrimination occurred.  When a settlement could not be reached at that point, the Justice Department agreed to litigate the case, as part of what the agency is calling a "joint effort to enhance collaboration between the EEOC and the Justice Department’s Civil Rights Division for vigorous enforcement of Title VII."  The case also provides the Justice Department an opportunity to put into action the position it outlined in a memorandum last December, in which it interpreted "discrimination on the basis of sex" to include discrimination on the basis of "gender identity and transgender status."  This expansive view of sex discrimination goes even farther than the protection some courts have found for transgender plaintiffs on the basis of gender nonconformity or the fact of their gender transition.  

The lawsuit contains several allegations that support the inference that the university's tenure decision was motivated by discrimination. For one, Professor Tudor had been recommended for tenure by her department chair.  At this university, such recommendations are routinely followed, yet in Tudor's case, the Dean overrode the decision.  Also, the lawsuit alleges that someone in the human resources department told Tudor that the Dean asked HR whether it would be permissible to fire Tudor because her "transgender lifestyle" offended his religious beliefs. 

While the case is filed under Title VII, Title VII decisions in the realm of sex discrimination are very influential in Title IX cases.  So a positive outcome in this case could translate to expanded federal protection for transgender students as well.