The Fifth Circuit has not yet ruled on the issue of whether transgender status is a protected category under Title VII, but earlier this month, a federal district judge in the Southern District of Texas, Houston Division, assumed that it was.
In Wittmer v. Phillips 66 Company, No. H-17-2188 (S.D. Tex. April 4, 2018), the plaintiff sued Phillips 66 claiming it rescinded her job offer based on her identity as a transgender woman and her failure to conform to female sex stereotypes.
Noting the prohibition against gender stereotyping in Price Waterhouse v. Hopkins, 490 U.S. 228, 250-51 (1989) and the Fifth Circuit's absence of guidance on the issue, as well as conflicting opinions from other courts, the Court found recent decisions from the Sixth, Second, and Seventh Circuits "persuasive" and applied them to "assume" a protected status.
Despite the assumption, the Court nevertheless granted summary judgment for the employer because the plaintiff could not prove a prima facie case or pretext.
What is interesting about this case is the Court's decision to forego a substantive analysis of the issue as many other courts have done, and instead, rely on case law from outside the Fifth Circuit. Practitioners may be left wondering whether the Court's assumption creates enough of a toehold to use the decision as support for similar cases.