“Because of … sex”: Inspirations from the European Court of Justice for the United States Supreme Court in the First Transgender Rights Case Before It’

In the summer of 2020, the United States Supreme Court will deliver its judgment on the first transgender rights case before it, R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission. In the lack of federal laws protecting transgenders from discrimination, the case will be a landmark, should it answer the question before it affirmatively, namely “whether Title VII [of the Civil Rights Act of 1964] prohibits discrimination against transgender people based on their status as transgender or sex stereotyping.’ The ECJ has dealt with the same issue in 1996 for its landmark decision of P. v S. and Cornwall County Council in which the European Court has decided that Council Directive 76/207 on the principle of equal treatment for men and women, which -like the US situation- was the only available piece of legislation at the time, protected transgender persons against discrimination. This paper offers a contribution to the debate around whether the prohibition contained in Title VII to discriminate “because of … sex” covers transgender discrimination by analyzing the said ECJ case, and applying the principles utilized therein to the case before the US Supreme Court.