Gender Identity Discrimination in Employment: Analysis of H.R. 3686 in the 110th Congress

Prepared for Members and Committees of Congress

H.R. 3686, a bill to prohibit employment discrimination on the basis of actual or perceived gender th
identity, was introduced in the 110 Congress and appears to represent half of an earlier bill that
dealt with both gender identity and sexual orientation discrimination. Gender identity appears to
include, but likely is not limited to, trans-gender status. Like the earlier bill, H.R. 3686 would also
prohibit employment discrimination against an individual based upon the gender identity of
persons associated with that individual, and does not permit disparate impact claims of gender
identity discrimination. A minority of states have enacted their own prohibitions against gender
identity employment discrimination. Additionally, some types of gender identity employment
discrimination may already be prohibited by existing prohibitions against sex stereotypes and
harassment in Title VII of the Civil Rights Act of 1964, despite the fact that Title VII’s definition
of sex generally has not been interpreted to encompass trans-gender status. H.R. 3686 does not
appear to apply to religious organizations as defined under Title VII. However, even if H.R. 3686
were enacted, religious organizations may still be prohibited from engaging in those types of
gender identity discrimination that are currently prohibited by Title VII. Alternatively, despite the
fact that H.R. 3686 does not claim to limit the provisions of any other federal or state
discrimination law, the bill could be read to implicitly repeal judicial interpretations of sex
stereotype discrimination under Title VII.

Histor y ....................................................................................................................................... 1
Anatomical Sex vs. Gender Identity.........................................................................................1
Sex stereotypes...................................................................................................................1
Sexual harassment...............................................................................................................2
Effect of H.R. 3686 on existing law....................................................................................3
Employment Practices Prohibited by H.R. 3686.......................................................................4
Perceived gender identity discrimination is prohibited.......................................................5
Associational rights are protected.......................................................................................5
Disparate gender identity impact claims are disallowed.....................................................5
Religious Organizations Under H.R. 3686................................................................................6
Definitions of religious organizations................................................................................6
The ministerial exception....................................................................................................7
Author Contact Information............................................................................................................8

On September 27, 2007, Representative Barney Frank of Massachusetts introduced two bills that
separately prohibit employment discrimination on the basis of sexual orientation and gender 1
identity, respectively. The bills appear to separate the issues of sexual orientation and gender
identity discrimination that had been conjoined in an earlier bill, also introduced by 2
Representative Frank. H.R. 3686, which appears to represent the half of the earlier bill that dealt
with employment discrimination on the basis of gender identity, would be the first federal 3
prohibition on gender identity discrimination, if enacted. However, predicting how its provisions
would be applied is complicated by existing judicial interpretations of “sex” under Title VII of the
Civil Rights Act of 1964 that may also incorporate instances of gender identity discrimination.
Although Title VII’s prohibitions against discrimination on the basis of sex generally have not 4
been interpreted to include discrimination on the basis of gender identity, in Schroer v.
Billington, the United States District Court for the District of Columbia recently held that Title 5
VII may in fact encompass trans-gender discrimination. According to that court, the “factual
complexities that underlie human sexual identity” warranted a more developed record, including 6
“the scientific basis of sexual identity, and gender dysphoria in particular.” Other courts, while
not adopting the reasoning of the court in Schroer, have held that, under some circumstances,
victims of treatment that would arguably also qualify as gender identity discrimination may be
able to successfully assert that they were victims of sex stereotypes or sexual harassment under
Title VII.
Victims of gender identity discrimination may prevail under Title VII where the facts also
indicate the presence of discrimination for failure to conform to “sex stereotypes,” as defined by 7
the United States Supreme Court in Price Waterhouse v. Hopkins. In that case, a female
employee was denied partnership in an accounting firm despite the fact that she was regarded as a

1 H.R. 3685 and H.R. 3686, 110th Cong. (2007). See also, CRS Report RS22740, Sexual Orientation Discrimination in
Employment: Analysis of H.R. 3685, the Employment Non-Discrimination Act of 2007, by Edward C. Liu. H.R. 3685,
which would prohibit only sexual orientation discrimination, was introduced and reported favorably, with no
amendments, out of the House Committee on Education and Labor, on October 18, 2007. Although that bill does not
deal with gender identity discrimination, it is very similar to H.R. 3686, particularly when looking at the types of
employers the bills would apply to.
2 See, Employment Non-Discrimination Act of 2007, H.R. 2015, 110th Cong. (2007).
3 A minority of jurisdictions have enacted laws prohibiting gender identity discrimination. See, e.g., CAL. GOVT CODE
§ 12926 (incorporating gender identity definition in CAL. PENAL CODE § 422.56(c)); D.C. CODE § 2-1401.02(12A); 775
ILL. COMP. STAT. 5/1-102; N.J. STAT. ANN. § 10:2-1; ME. REV. STAT. ANN. tit. 5, § 4553; MINN. STAT. § 363A.01; N.M.
STAT. § 28-1-2(Q); R.I. GEN. LAWS § 28-5-6(10); WASH. REV. CODE § 49.60.040(15).
4 See, Ulane v. Eastern Airlines, 742 F.2d 1081 (7th Cir. 1984); DeSantis v. Pacific Telephone and Telegraph Co., 608
F.2d 237 (9th Cir. 1979); Holloway v. Arthur Andersen, 566 F.2d 659 (9th Cir. 1977).
5 Schroer v. Billington, 424 F. Supp. 2d 203 (D.D.C. 2006).
6 Id. at 212-213. In so holding, the court suggested reexamining the Seventh Circuit’s holding in Ulane v. Eastern
Airlines, 742 F.2d 1081 (7th Cir. 1984).
7 Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).

high performer. Tellingly, partners in the firm had instructed her to act more femininely in order 8
to be considered for a partnership in the future. The Court held that Price Waterhouse was
applying standards for partnership in a prohibited sexually disparate manner, in that Title VII did
not permit an employer to evaluate female employees based upon their conformity with the 9
employer’s stereotypical view of femininity.
The sex stereotype theory may also be viable in cases involving trans-gender individuals. In
Smith v. Salem, a male firefighter who was undergoing gender transition to female argued that he 10
had been suspended because of his feminine appearance. The Sixth Circuit held that, to the
extent that the firefighter asserted that she experienced discriminatory treatment due to the fact
that she did not conform to what her employer believed males should look and act like, she had 11
sufficiently plead a prima facie case of sex discrimination. Similarly, in Barnes v. Cincinnati, a
male police officer undergoing gender transition to female was denied a promotion because she 12
acted too femininely in her supervisors’ opinions. Coverage under the sex stereotype theory,
however, only goes so far. The Ninth Circuit has held that it does not violate Title VII for covered
employers to require female employees to wear makeup and long, styled hair so long as these
requirements do not impose an “unequal burden” when compared to grooming requirements for 13
male employees. In addition, the Tenth Circuit has held that employers may require employees 14
undergoing gender transition to use the bathrooms designated for their current anatomical sex.
In the context of sexual harassment, recent court decisions have been guided by the Supreme 15
Court’s decision in Oncale v. Sundowner Offshore Services. In that case, the Court held that the 16
critical question is whether the harassment occurred “because of sex.” Furthermore, relying on
Price Waterhouse, the Third Circuit held, in Bibby v. Philadelphia Coca Cola Bottling Comapny,
that harassment of an individual for failure to conform to sex stereotypes could constitute 17
harassment “because of sex” consistent with Oncale.

8 Id. at 233-235. Partners also objected to her use of vulgar language and reported that she acted toomacho.
9 Id. at 250-251. Interestingly, the court in Schroer refused to apply a sex stereotype theory, reasoning that trans-gender
individuals are not attempting to deviate from sexual stereotypes, but are embracing them as part of their gender
transition. Schroer v. Billington, 424 F. Supp. 2d at 211.
10 Smith v. Salem, 378 F.3d 566 (6th Cir. 2004).
11 Id. at 575.
12 Barnes v. Cincinnati, 401 F.3d 729 (6th Cir. 2005).
13 Jespersen v. Harrah’s Operating Co., 444 F.3d 1104 (9th Cir. 2006). H.R. 3686 explicitly allows enforcement of
reasonable grooming codes. H.R. 3686 § 7(a)(5).
14 Etsitty v. Utah Transit Auth., ___ F.3d ____ (10th Cir. 2007). H.R. 3686 contains provisions explicitly allowing
segregated changing and shower facilities. Note, however, that bathrooms are not listed explicitly. H.R. 3686 § 7(a)(3).
H.R. 3686 also explicitly would not require additional facilities to be built to comply with the bill. H.R. 3686 § 7(a)(4).
15 Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998).
16 Id. at 81. The Court also recognized that an inference that harassment is “because of sex” is not obvious where the
harasser and the victim are of the same sex, but provided three examples of how such an inference could be established:
(1) if the harasser sexually desired the victim; (2) if the harasser was hostile to the presence of one sex in the
workplace; or (3) if comparative data showed that the harasser targeted only members of one sex. Id. at 80-81. This
discussion of Oncale is not meant to imply that gender identity harassment is only perpetrated by persons of the same
sex as the victim, but merely to suggest that an employer’s assertion that harassment occurred solely because of trans-
gender status, and not sex, may be refuted by the methods of proof offered in Oncale.
17 Bibby v. Phila. Coca Cola Bottling Co., 260 F.3d 257, 264 (3rd Cir. 2001).

The Ninth Circuit has further held, in Rene v. MGM Grand Hotel, that harassment “which
targeted body parts clearly linked to [a person’s] sexuality” constituted sexual discrimination
prohibited by Title VII, and that “whatever else those attacks may, or may not, have been 18
‘because of’ has no legal consequence.” Although the plaintiff in Rene prevailed, the holding of
the Ninth Circuit may contradict the Supreme Court’s earlier holding in Oncale. As the dissent in
Rene noted, the Ninth Circuit relied in large part on Doe v. City of Belleville, in which the Seventh
Circuit argued that evidence of physical abuse of a sexual nature alone could lead to an inference 19
that the victim was targeted because of his gender. That judgment, however, was vacated and 20
remanded to the Seventh Circuit after the Court’s decision in Oncale. The text of the opinion in
Oncale also seems to require more than conduct of a sexual nature in order to give rise to an 21
inference that it was “because of sex.”
H.R. 3686
H.R. 3686 would define gender identity as “the gender-related identity, appearance, or
mannerisms or other gender-related characteristics of an individual, with or without regard to the 22
individual’s designated sex at birth.” Given this definition, a reasonable court could conclude
that the definition of “gender identity” includes the kind of employer behavior evidenced by the
facts in Price Waterhouse v. Hopkins, Smith v. Salem, and Bibby v. Coca Cola. If H.R. 3686 were
enacted, it is unclear whether facts similar to these cases would be governed by H.R. 3686 or
existing protections of Title VII. Section 14 of H.R. 3686 states that
the Act shall not invalidate or limit the rights, remedies, or procedures available to an 23
individual claiming discrimination under any other Federal law or regulation.
Therefore, H.R. 3686 might be interpreted to leave Price Waterhouse’s judicially created
protections in place. The Supreme Court has held that “repeals by implication are strongly 24
disfavored.” However, in United States v. Fausto, the Supreme Court also held that the normal
presumption against implicit repeals is not present when dealing with “repeal by implication of a 25
legal disposition implied by a statutory text.” Therefore, in that case, the Court held that the
Civil Service Reform Act had implicitly repealed a prior judicial interpretation of the Back Pay 26

18 Rene v. MGM Grand Hotel, 305 F.3d 1061, 1064, 1066 (9th Cir. 2002). In this case, the plaintiff believed he was
harassed because of his sexual orientation, but the courts holding may have broader implications beyond this type of
19 Id. at 1066 (citing Doe v. City of Belleville, 119 F.3d 563, 580 (7th Cir. 1997)).
20 City of Belleville v. Doe, 523 U.S. 1001 (1998). The Court remanded and instructed the court below to determine
whether harassment had occurred “because of sex.” However, the case settled before the Seventh Circuit could rehear
the case.
21 “[The plaintiff] must always prove that the conduct at issue was not merely tinged with offensive sexual
connotations.” Oncale, 523 U.S. at 81.
22 H.R. 3686 § 2(a)(6).
23 H.R. 3686 § 14. This section also disavows preemption of any state discrimination law.
24 United States v. Fausto, 484 U.S. 439, 452-453 (1988).
25 Id. at 453 (emphasis added). Justice Scalia, writing for the majority, further stated[R]econciling many laws enacted
over time, and getting them to ‘make sense’ in combination, necessarily assumes that the implications of a statute may
be altered by the implications of a later statute. Id.
26 Id. at 453-454.

In H.R. 3686, there are several facts that might argue for implicit repeal of Price Waterhouse.
First, the bill’s stated purpose is “to provide a comprehensive Federal prohibition of employment 27
discrimination on the basis of gender identity.” Second, the bill explicitly does not allow 28
disparate impact claims of gender identity discrimination, while Title VII appears to. Third,
Price Waterhouse sex stereotypes brought under Title VII would apply to religious institutions
generally, while H.R. 3686 explicitly appears not to apply to religious organizations and 29
schools. If the intent of H.R. 3686 is to leave Price Waterhouse as it stands, the purpose of the
drafters’ inclusion of these last two limits is substantially less clear. Therefore, a court might
conclude that H.R. 3686, if enacted, was meant to supplant the Price Waterhouse sex stereotype
theory currently viable under Title VII.
However, one should not take this to mean that H.R. 3686 is exactly coterminous with Price
Waterhouse under Title VII. For example, if an employer refused to hire any applicant that had
undergone gender transition, regardless of the applicants’ sex, that act likely would not violate 30
Title VII, but appears to be prohibited by a plain reading of H.R. 3686. Other cases of gender
identity discrimination may not be so clear cut. Were an employer to refuse to promote or hire
any applicant that was simply too “aggressive,” regardless of sex, it is likely that this adverse
employment action would pass muster under Title VII, but it is not totally clear whether H.R.
3686 would prohibit it. Courts have not yet determined what appearances or mannerisms are
“gender related” as would be required by these bills. Given the etymology of a gender-loaded
word such as “macho,” its classification as “gender related” seems reasonable. However,
characteristics such as “aggressive,” “vulgar,” or “demure,” may be more difficult as they
arguably bear no relationship to gender beyond crude stereotypes. Nevertheless, such
characteristics could easily be used to mask discrimination on the basis of gender identity. In
these cases, it remains to be seen how far beyond existing law H.R. 3686 would extend.
Interestingly, with respect to sex stereotyping under Title VII, courts have been careful to refrain
from explicitly defining what the traditional masculine or feminine stereotypes are. Instead,
courts have generally looked to the intent of the employer, finding sex discrimination where the 31
employer’s words or actions indicated reliance upon stereotypical attributes of men or women.
It is possible that courts would continue to use this methodology to determine when employment
decisions are made on the basis of “gender related characteristics” under H.R. 3686.
For the most part, the types of employment actions prohibited by H.R. 3686 dovetail with Title
VII’s prohibitions against discrimination on the basis of race, color, sex, national origin, and 32
religion. Notwithstanding this overall similarity, the provisions of the bill do go beyond Title

27 H.R. 3686 § 1(1) (emphasis added). Cf. United States v. Fausto, 484 U.S. at 454 (holding that the comprehensive
nature of the Civil Service Reform Act supported implicit repeal of the Back Pay Act’s previous interpretation).
28 See, infra notes 37-38 and accompanying text for a discussion of H.R. 3686’s provisions regarding disparate impact.
29 See, infra text accompanying footnote 46 for a discussion of religious exemptions under Title VII and H.R. 3686.
30 Other sections of H.R. 3686 refer to employees that are undergoing or have undergone gender transition. Therefore,
gender identity appears to include, at a minimum, trans-gender individuals. H.R. 3686 § 7(a)(3, 4).
31 Price Waterhouse v. Hopkins, 490 U.S. at 236; Smith v. Salem, 378 F.3d at 572; Barnes v. Cincinnati, 401 F.3d at
735, 737; Jespersen v. Harrah’s Operating Co., 444 F.3d at 1112; Etsitty v. Utah Transit Auth., ___ F.3d at *17-18.
32 Compare H.R. 3686 § 3(a-d) with Civil Rights Act of 1964, P.L. 88-352, tit. vii, § 703(a-d) (codified at 42 U.S.C. §
2000e-2(a-d)). H.R. 3686 would also limit applicability to those employers with fifteen or more employees, as does the

VII’s provisions in two main ways: (1) prohibiting discrimination on perceived characteristics;
and (2) textually creating associational rights under the act. That is not to say, however, that the
protections of H.R. 3686 appear uniformly at least as extensive as Title VII’s protections, as the
bill explicitly disallows victims of gender identity discrimination from pursuing a disparate
impact claim. Each of these differences is discussed in detail below.
H.R. 3686 would prohibit discrimination on the basis of actual or perceived gender identity.33 The
text of Title VII contains no comparable prohibition against discrimination on the basis of the
perceived race, color, sex, national origin, or religion of a person. The Americans with Disabilities
Act (“ADA”), however, does include in its definition of disability “being regarded as having a 34
[physical or mental impairment].” The semantic similarity between “perceived” and “regarded”
suggests that existing judicial interpretation of that language in the ADA may be instructive for
courts, agencies, or employers attempting to interpret what is meant by “perceived gender
identity.” In other words, to the extent that “being regarded” as disabled under the ADA has been
held to require an examination of an employer’s subjectively held beliefs, courts may read H.R.

3686 to require the same.

H.R. 3686 would additionally prohibit adverse employment actions taken against an individual on
the basis of the actual or perceived gender identity of a person who associates with that 35
individual. Although Title VII contains no analogous text, associational rights under Title VII 36
have been recognized by federal courts in the context of interracial marriage.
H.R. 3686 would disallow disparate impact claims on the basis of gender identity.37 Therefore,
whereas a Title VII claim could proceed where the plaintiff showed that a particular job
requirement disproportionately impacted one racial or religious group, it does not appear that this
bill would allow a plaintiff to show that a particular job requirement disproportionately impacts 38
one gender identity over another. H.R. 3686 would also explicitly allow employers to enforce

current version of Title VII. Compare H.R. 3686 § 3(a)(4)(A) with 42 U.S.C. § 2000e(b).
33 H.R. 3686 § 3(a-f).
34 42 U.S.C. § 12102(2)(C). For further discussion of the definition of disability under the ADA, see, CRS Report
RL33304, The Americans with Disabilities Act (ADA): The Definition of Disability, by Nancy Lee Jones.
35 H.R. 3686 § 3(e).
36 E.g., Parr v. Woodmen of the World Life Ins. Co., 791 F.2d 888, 891-892 (11th Cir. 1986).
37 H.R. 3686 § 3(g). Some members of Congress noted in testimony before the House Subcommittee on Health,
Employment, Labor and Pensions that allowing disparate impact claims in this context would require litigants to
intrude upon the privacy of fellow applicants and employees in order to investigate their gender identities.
38 For an example of how a disparate impact claim of racial discrimination is established under Title VII, see Griggs v.
Duke Power Co., 401 U.S. 424 (1971). Disparate impact claims available under Title VII likely would not be affected
by H.R. 3686.

segregated changing and shower facilities and gender specific grooming codes.39 In both
circumstances, the employer would be required to assign the employee to the appropriate facility
or grooming code based upon the self identified gender identity of the individual (1) at the time of
hire, or (2) upon notifying the employer that the employee is undergoing, or has completed, 40
gender transition.
In all likelihood, H.R. 3686 would not impose new requirements on “religious organizations” as
the term is defined under Title VII. Additionally, religious organizations would likely remain free
from defending claims of any type of discrimination with respect to their selection of clergy and
certain other positions related to worship.
Section 5 of H.R. 3686 states that the bill would not apply to religious organizations. Further,
Section 2 of the bill defines religious organizations in a manner that appears similar to the
statutory religious exemption clauses of Title VII. H.R. 3686 defines religious organizations
generally as
(A) a religious corporation, association, or society; or (B) a school, college, university, or
other educational institution or institution of learning, if—(i) the institution is in whole or
substantial part controlled, managed, owned, or supported by a particular religion, religious
corporation, association, or society; or (ii) the curriculum of the institution is directed toward 41
the propagation of a particular religion.
This definition appears comparable with language in Title VII that exempts any “religious 42
corporation, association, educational institution, or society” as well as educational institutions
if such school, college, university, or other educational institution or institution of learning
is, in whole or in substantial part, owned, supported, controlled, or managed by a particular
religion or by a particular religious corporation, association, or society, or if the curriculum
of such school, college, university, or other educational institution or institution of learning is 43
directed toward the propagation of a particular religion.
Neither H.R. 3686 or Title VII further explain which entities qualify as religious. Federal courts
have held that the question requires inquiry into whether an entity’s “purpose and character are 44
primarily religious.” The Third Circuit, in LeBoon v. Lancaster Jewish Community Center,

39 There are similar, but not identical, limits on the protections available under a sex stereotype claim with respect to
facilities. See, supra note 13-14 and accompanying text.
40 H.R. 3686 § 7(a)(3, 5).
41 H.R. 3686 § 2(a)(8).
42 42 U.S.C. § 2000e-1(a).
43 42 U.S.C. § 2000e-2(e)(2). For a more detailed discussion of Title VII’s definition of religious schools, see Jamie
Darin Prenkert, Liberty, Diversity, Academic Freedom, and Survival: Preferential Hiring Among Religiously-Affiliated
Institutions of Higher Education, 22 Hofstra Lab. & Emp. L. J. 1 (2004).
44 EEOC v. Townley Eng’g & Mfg. Co., 859 F.2d 610, 618 (9th Cir. 1988). See also EEOC v. Kamehameha Schools,
990 F.2d 458, 461 (9th Cir. 1993).

identified nine factors other courts have considered when determining if an institution is religious,
none of which are determinative:
(1) whether the entity operates for a profit, (2) whether it produces a secular product, (3)
whether the entitys articles of incorporation or other pertinent documents state a religious
purpose, (4) whether it is owned, affiliated with or financially supported by a formally
religious entity such as a church or synagogue, (5) whether a formally religious entity
participates in the management, for instance by having representatives on the board of
trustees, (6) whether the entity holds itself out to the public as secular or sectarian, (7)
whether the entity regularly includes prayer or other forms of worship in its activities, (8)
whether it includes religious instruction in its curriculum, to the extent it is an educational 45
institution, and (9) whether its membership is made up by coreligionists.
Although, as discussed above, H.R. 3686 would not apply to religious organizations, neither it
nor Title VII exempt qualifying religious entities from defending claims of sex discrimination.
Therefore, gender identity claims brought under a sex stereotype theory may still be viable
against a religious entity, insofar as H.R. 3686 does not supersede Price Waterhouse and its 46
At a minimum, claims of gender identity discrimination, whether brought under H.R. 3686 or
Title VII, would likely not be applicable to religious organizations’ selection of certain positions
involved in worship or ritual. Discrimination on the basis of race, sex, national origin, or religion
has been held to be permissible, in these positions, under the judicially created “ministerial
exception” to Title VII. This exception was created to reconcile some of Title VII’s prohibitions
with the Free Exercise Clause of the federal Constitution. It has been adopted in eight federal
circuits and applies to employees whose “primary duties include teaching, spreading the faith,
church governance, supervision of a religious order, or supervision of participation in religious 47
ritual and worship.” This exception to Title VII allows discrimination on the basis of any
characteristic, including race and sex, but only with respect to “a religious institution’s choice as 48
to who will perform spiritual functions.” Because the rationale for this exception is derived from
the federal Constitution, and not the text of Title VII, it would likely be wholly applicable to H.R.

3686 as well.

45 LeBoon v. Lancaster Jewish Comm. Ctr. Assn., 2007 U.S. App. LEXIS 22328, 19-20 (3rd Cir. 2007) (decided Sept.
19, 2007). See also, CRS Report RS22745, Religion and the Workplace: Legal Analysis of Title VII of the Civil Rights
Act of 1964 as It Applies to Religious Organizations, by Cynthia Brougher.
46 See also, supra text accompanying notes 23-29 for a discussion of the effect of H.R. 3686 on existing Title VII
47 Petruska v. Gannon Univ., 462 F.3d 294, 304 (3rd Cir. 2006) (citing favorable opinions in the 4th, 5th, 7th, 8th, 9th, 11th,
and D.C. Circuits).
48 Petruska v. Gannon, 462 F.3d at 305.

Edward C. Liu
Legislative Attorney, 7-9166