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What Does Your Company Policy Say About Gender Nonconformity?

By William Vogeler, Esq. on March 22, 2017 | Last updated on March 21, 2019

When a woman reports for work in men's clothing -- and it is not a costume -- it may be time to review your company's anti-discrimination policy because the laws are changing as dramatically as some people change clothes.

In the South, in particular, the legal issues around sexual orientation are definitely not resolved. Jameka K. Evans, a Georgia lesbian who presented herself on the job as a man, discovered that even the judges are fighting about it.

Over a sharp dissent, the U.S. Eleventh Circuit Court of Appeals ruled that Evans was not discriminated against under Title VII of the Civil Rights Act. The court reversed and remanded the case for further proceedings and to allow her to amend her complaint.

Fifty Years Behind the Times

This issue split the court, incurring a long dissent over the application of anti-discrimination law in the case. The dissent said the majority was about 50 years behind the times.

"A woman should be a 'woman.' She should wear dresses, be subservient to men, and be sexually attracted to only men. If she doesn't conform to this view of what a woman should be, an employer has every right to fire her," Judge Robin Rosenbaum wrote in dissent.

"That was the law in 1963 -- before Congress enacted Title VII of the Civil Rights Act of 1964. But that is not the law now."

Then and Now

Evans had worked for about a year at the Georgia Regional Hospital as a security officer until she quit in October 2013. She filed a discrimination complaint in pro per, alleging she was denied equal pay or work, harassed, and physically assaulted or battered based on her gender non-conformity.

Evans said she was discriminated against under Title VII for failing to carry herself in a "traditional womanly manner." Although she is a lesbian, she identified with the male gender by wearing male clothes, a short haircut and men's shoes.

A trial judge dismissed her case, finding that she was not protected under Title VII. Judge G.R. Smith said her claim based on gender non-conformity was the same as a claim based on sexual orientation.

Sexual Orientation v. Gender Nonconformity

The court of appeals reversed and remanded. The court also said there is a difference between sexual orientation and gender nonconformity.

"The lower court erred because a gender non-conformity claim is not 'just another way to claim discrimination based on sexual orientation,' but instead, constitutes a separate, distinct avenue for relief under Title VII," Judge Jose Martinez wrote for the majority.

"In other words, Evans did not provide enough factual matter to plausibly suggest that her decision to present herself in a masculine manner led to the alleged adverse employment actions," the judge said. "Therefore, while a dismissal of Evan's gender non-conformity claim would have been appropriate on this basis, these circumstances entitle Evans an opportunity to amend her complaint one time unless doing so would be futile."

Meanwhile, the social landscape is quickly changing. It would be wise for companies to stay current with the times concerning gender nonconformity and other sensitive issues. What does your company's policy say on this issue? 

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