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Employer can’t inquire into transgender worker’s sexual anatomy, relationships, or transition records

By Kathleen Kapusta, J.D.

Information regarding a transgender employee’s sexual anatomy, her familial background and relationships, and any medical or psychological records related to her gender transition is of the most intimate and private nature, declared a federal magistrate judge in Michigan. Finding that it would be harassing and oppressive to require its disclosure at this time where the employer failed to show its relevance to the disposition of the gender-stereotyping claim brought by the EEOC on the employee’s behalf, the court granted the agency’s motion for a protective order in part (EEOC v. R.G. & G.R. Funeral Homes, Inc., September 24, 2015, Grand, D.).

The employee, who worked for the funeral home since 2007 as a director/embalmer, informed her employer and coworkers in July 2013 that she was undergoing a gender transition from male to female and intended to dress as a woman from then on. Approximately two weeks later, the EEOC alleged, the employer told her what she was “proposing to do” was unacceptable and fired her. Bringing suit on her behalf, the agency argued that the funeral home fired her because she is transgender, because of her transition from male to female, and/or because she did not conform to the employer’s sex- or gender-based preferences, expectations, or stereotypes.

Prior proceedings. Arguing that gender identity disorder is not a protected class under Title VII, the employer moved to dismiss but, in a prior order, the court denied the motion. Although it rejected the EEOC’s claim that the funeral home violated Title VII by firing the employee because she is transgender and/or because of her transition from male to female, the EEOC’s gender-stereotyping claim survived.

Discovery requests. The EEOC’s inclusion, however, of these three distinct allegations in its amended complaint (at oral argument, the EEOC conceded that, in light of the court’s prior ruling, those portions of its alleged Title VII claim were not “live” and were included only to preserve appellate rights) led the employer to seek discovery regarding the prior and current status of the employee’s sexual anatomy (including copies of her birth certificate); the progress of her gender transition (including any conversations with its employees, nonconforming gender behavior in the workplace, and medical and psychological records); and her familial background and relationships. This prompted the EEOC to move for a protective order.

Transgender and transitioning claims. Addressing first the discovery requests as they related to the EEOC’s “transgender” and “transitioning” claims, the court noted that the employer, both in its briefs and at the hearing, made clear that many of the disputed requests sought information bearing directly on the veracity of the factual components of those two claims. For example, because the amended complaint still alleged that it terminated the employee because she “is transgender” and because she “is transitioning from male to female,” and that it had to obtain information about whether she is in fact transgender and/or transitioning, the employer sought information about her genitalia, both now and at birth. Here, the court found that while such requests may have been proper if her transgender and transitioning claims remained live, in light of the prior ruling and the EEOC’s concession that her salient claim was limited to gender stereotyping, it needed only to decide the requests’ relevance regarding that particular claim.

Gender stereotyping. Turning to the gender-stereotyping claim, the court pointed out that for purposes of discovery, it was irrelevant whether the alleged gender-stereotyping resulted from the fact that the employee was actually transgender. Rather, what was material was whether the employer terminated her because she exhibited characteristics or behaviors that her supervisors perceived to be inconsistent with her original male gender. Thus, the employer’s discovery requests concerning her sexual anatomy, her familial background and relationships, and any medical or psychological records related to the progress of her gender transition were all irrelevant because they did not demonstrate how its supervisors actually perceived her before it terminated her.

Twists and turns. And while the employer argued that it should be permitted to obtain as much information as possible because this was a case of first impression and it was uncertain as to the potential twists and turns its litigation strategy might take, the court explained that the novelty of EEOC’s legal theory alone did not warrant probing into the employee’s medical, psychological ,and familial history without some proffer as to the relevance of such information.

Also rejected was the employer’ contention that establishing the employee’s actual gender during her employment was relevant because it could not have unlawfully terminated her for acting like a woman if she was, in fact, a woman. Finding that this argument misconstrued the very nature of the EEOC’s gender-stereotyping claim, the court explained that the relevant inquiry underlying this theory of liability was a subjective one—whether the employer’s supervisors perceived the employee as a man who was acting like a woman—rather than an objective one (whether she was ever actually a woman). Thus, the court granted the EEOC’s protective order insofar as the employer sought information regarding her sexual anatomy, her familial background and relationships, and any medical or psychological records related to the progress of her gender transition.

The court, however, denied the motion with respect to whether the employee informed any coworkers of her intentions to alter her appearance and present as a woman prior to her official announcement to the employer and whether she ever “presented” as a woman at work while employed. These two interrogatories were distinguishable from the prohibited discovery requests because they sought information that the employee presented publicly or to third parties, as opposed to private facts of an intimate nature, explained the court.