Championing gay rights at the U.S. Supreme Court in 2013. Credit: Diego M. Radzinschi/ ALM

The nearly $1.2 million jury verdict Monday for a transgender professor in Oklahoma followed a years-long battle in which the U.S. Justice Department—once a plaintiff in the case—retreated from the dispute in the Trump administration, highlighting the increasingly complex landscape for gender identity discrimination complaints.

Just a few years ago, the Eric Holder-led Justice Department said plaintiff Rachel Tudor's case against her employer Southeastern Oklahoma State University would “send a clear message” about eliminating sex and gender-identity discrimination. Main Justice's participation in the case followed Holder's guidance that said federal civil rights laws protect transgender employees.

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“We will not allow unfair biases and unjust prejudices to prevent transgender Americans from reaching their full potential as workers and as citizens,” Holder said in a statement announcing the case in 2015. “And we will continue to work tirelessly, using every legal tool available, to ensure that transgender individuals are guaranteed the rights and protections that all Americans deserve.”

U.S. Attorney General Jeff Sessions in October rescinded Holder's guidance, a move that meant the department would no longer support broad application of workplace rights to transgender employees. The department's new interpretation collided with the views of at least five circuit courts and the U.S. Equal Employment Opportunity Commission.

The Justice Department settled in August with the defendants, and dropped out of the case before it went to trial. Tudor had filed to intervene shortly after the government sued and her attorneys went on to win without the DOJ.

The win for Tudor represented a first-of-its-kind ruling in a transgender discrimination case that underwent a full trial.

Ezra Young, an attorney who represented Tudor, pointed out the professor was hired in 2004 and fired in 2011, and therefore wanted to fight on the merits of the case long before any guidance was issued by any U.S. attorney general, Democratic or Republican. The role the Justice Department played in the case was not mentioned at trial, Young said.

“This was a case on the merits and that's all we ever wanted it to be,” Young said Tuesday. “Guidance can come and go and she has maintained her position.”

Up until the government's settlement, the Justice Department worked with Young and his fellow attorneys—Brittany Novotny and Marie Eisela Galindo—to co-litigate the case, sharing strategy and depositions.

“What is going on in D.C. is across a wide range of issues. This [verdict] sent a message that regular folks can see the law for what it is and what is fair,” Young said. “Retracted or not retracted, they didn't need that guidance.”

The case filed in the U.S. District Court for the Western District of Oklahoma claimed that Tudor, who began working at the university in 2004 when she identified as a man, began to present as a woman in 2007, consistent with her gender identity. The lawsuit, originally filed by the Justice Department, argued that she was denied promotions because of her gender identity, transition and nonconformance with gender stereotypes.

The EEOC investigated the charge filed by Tudor after she was terminated and found there was cause to believe discrimination occurred. The EEOC has held that Title VII protects gender identity, as well as sexual orientation. The agency has argued this stance in federal appeals courts.

The judge in Tudor's case denied the university's motion for summary judgment, signaling that the court would not embrace the Justice Department's guidance. The university, in its defense, argued that “transgender” was not a protected class.

Gay rights advocates saw Tudor's jury verdict win in wider context. “Across the country, courts are increasingly reaching the conclusion that sex and gender stereotyping is a form of sex discrimination and therefore illegal under Title VII,” said Masen Davis, chief executive for Freedom for All Americans. “Employees should be judged solely on their work ethic and performance—no one should fear being treated differently in the workplace because of who they are.”

A team from the management-side firm Seyfarth Shaw, writing this month about the case, said there are takeaways for employers from Tudor's case.

“It is clear that the DOJ's recent memorandum has not resolved the question of whether Title VII protects transgender employers on the basis of gender identity,” Scott Rabe, Sam Schwartz-Fenwick and Marlin Duro wrote. “Therefore, employers should be vigilant in establishing and maintaining nondiscrimination and anti-harassment policies that extend protections to individuals on the basis of gender identity.”

The Oklahoma Attorney General's Office didn't immediately comment on the verdict.

 

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