LGBT workers are protected from workplace discrimination, Texas judge says in 'earth-shattering' new ruling

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For the first time in Texas, a federal judge said LGBT workers should be protected from employment discrimination based on their gender identity and sexual orientation.

Judge Lee Rosenthal, the chief judge in the Houston-based Southern District Court of Texas, said in a decision last week that federal employment law protecting workers from discrimination based on sex also applies to sexual orientation and gender identity.

Nicole Wittmer, an engineer who alleged she wasn't hired by energy company Phillips 66 because she's transgender, couldn't prove her claim, Rosenthal ruled. But if she had proof, the judge added, Wittmer would have had cause to sue under federal law.

Rosenthal's ruling doesn't mean it's suddenly illegal in Texas to discriminate against LGBT workers. But it may be cited in the future by others who believe their sexual orientation or gender identity was a factor in workplace decisions, Wittmer's lawyer told The Dallas Morning News.

"We're certainly disappointed that this particular ruling did not fall in her favor," Alfonso Kennard Jr. said Monday. "The silver lining here is it has helped to define the landscape for people who have been discriminated [against] in the workplace due to their transgender status."

"This ruling is earth-shattering — in a good way."

A growing trend
Federal judges in several other states have already decided that lesbian, gay, bisexual and transgender workers are also covered under Title VII, the civil rights era-law that prohibits sex discrimination in the workplace.

But there has never been such a decision by a federal court in Texas, Louisiana or Mississippi, the states covered by the 5th U.S. Circuit Court of Appeals. Texas state law also doesn't prohibit employment discrimination based on sexual orientation or gender identity, which means it's still legal for Texas employers to fire or fail to hire someone because they're LGBT.

Rosenthal, who was appointed in 1992 by President George H.W. Bush, said recent decisions in other jurisdictions helped shape her decision.

"Within the last year, several circuits have expanded Title VII protection to include discrimination based on transgender status and sexual orientation," Rosenthal wrote. "Although the Fifth Circuit has not yet addressed the issue, these very recent circuit cases are persuasive. ... The court assumes that Wittmer's status as a transgender woman places her under the protections of Title VII."
Harper Jean Tobin, policy director at the National Center for Transgender Equality, characterized the decision as part of a growing consensus that Title VII covers trans workers as well.

"This ruling, along with dozens of others, shows that discrimination against transgender workers is illegal under federal law," Tobin said in a prepared statement. "This is the overwhelming approach of the courts across the country over the last decade."

Dale Carpenter, a constitutional law and LGBT rights expert at Southern Methodist University, said the ruling was the first of its kind in Texas.

It goes beyond a 2008 case in which another federal judge in Texas said gender nonconforming persons could not be discriminated against in the workplace, he said, because this one also recognizes transgender status as a protected trait.

"It is significant," Carpenter said of Rosenthal's decision. Agreeing with Tobin, he called it "part of a growing trend around the country."  The decision could provide cover for other LGBT workers, Carpenter added, who are not protected for employment discrimination under state law. Someone could sue and cite this case, he said, and if they win at the 5th Circuit, it would create a new precedent for the entire region.

"Just based on the sheer population of Texas," Carpenter said, "if it becomes the rule in Texas, this would be the single biggest victory against employment discrimination that has yet to be enjoyed by the LGBT rights movement."

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