On February 6, 2019, the Fifth Circuit affirmed summary judgment in favor of an employer on claims that it discriminated against the plaintiff based on her transgender status. In Wittmer v. Phillips 66 Company, the plaintiff sued Phillips 66 Company for sex discrimination under Title VII in the Southern District of Texas, claiming that the company rescinded her offer of employment after learning she was transgender. The District Court granted the company’s motion for summary judgment because the plaintiff failed to establish a prima facie case of discrimination and failed to show that the employer’s reason for its decision was pretextual. In so ruling, the District Court assumed that Title VII prohibited discrimination based on transgender status and expressly stated that the Fifth Circuit had not addressed the issue.

On appeal, the Fifth Circuit Court of Appeals took notice of the fact that the Second, Sixth and Seventh Circuits have all held that Title VII protection extends to sexual orientation or transgender status over the last two years. However, the three-judge panel disagreed with the District Court’s statement that the Fifth Circuit had not previously ruled on the issue, noting that in Blum v. Gulf Oil Corp., 597 F.2d 936 (5th Cir. 1979), the Fifth Circuit specifically held that Title VII does not prohibit sexual orientation discrimination. Ultimately, the panel did not reach the issue of Title VII’s coverage of sexual orientation or transgender discrimination because it affirmed the District Court’s determination that, even if protected, the plaintiff failed to establish a prima facie case of discrimination and also failed to offer evidence that the employer’s legitimate, nondiscriminatory reasons for its decision were pretextual.

In a separate, concurring opinion, Judge James Ho went further, adding his position that Title VII does not extend its protections to sexual orientation and transgender status. Judge Ho’s concurrence stated that, in his opinion, the three Circuit Court decisions that ruled otherwise were wrongly decided. On the other hand, Judge Patrick Higginbotham also wrote a concurring opinion, questioning the continued vitality of Blum and whether Title VII proscribes discrimination against someone because of sexual orientation or transgender status. Although the panel made clear that its holding in Blum remains valid, binding precedent as to claims of sexual orientation discrimination within the borders of the Fifth Circuit, it appears that there may be dissension regarding whether sexual orientation or transgender status is in fact protected under Title VII given Judge Higginbotham’s concurrence.

This split among circuit courts will remain until the Supreme Court speaks on the subject or Congress takes action. In the meantime, employers in Texas, Louisiana and Mississippi should still be cognizant of the protection that sexual orientation and transgender status may have under Title VII, and any state statutes and local ordinances.