"What's in a [Dead] Name?": Title VII Protections against Misgendering and Deadnaming of Gender Diverse Individuals
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WHAT'S IN A [DEAD] NAME?: TITLE VII PROTECTIONS
AGAINST MISGENDERING AND DEADNAMING OF GENDER
DIVERSE INDIVIDUALS**
Mackenzie O'Connell **
Abstract
The Supreme Court's 2020 holding in Bostock v. Clayton County
monumentally altered the availability of employment discrimination
claims under Title VII to individuals identifying as members of the
LGBTQ+ community.. The Court did so by finding that the meaning of
Title VII's prohibition of workplace discrimination because of sex
includes discrimination against individuals on the basis of their
homosexual or transgender statuses. The effects of this decision on other
aspects of employment litigation are still uncertain.
Pre-Bostock, transgender and non-binary individuals were largely left
without a legal remedy under Title VII for hostile work environment
sexual harassment claims. One novel claim developing post-Bostock is a
hostile work environment sexual harassment claim brought by
transgender or non-binary employees on the basis of intentional
misgendering and deadnaming. Although various federal courts have
heard sexual harassment claims involving misgendering and deadnaming
of gender diverse individuals post-Bostock, due to the contemporary
nature of the holding, there is a paltry amount of relevant federal case law
and little uniformity amongst these courts' handling of such claims.
To better address the proven detrimental effects of intentional
misgendering and deadnaming in the workplace, and to satisfy Title VI's
purpose, Courts should:
(1) use a reasonable gender diverse person standard (rather than
applying a reasonable person standard) when determining
* Content Warning: This Note discusses potentially triggering topics, such as
discrimination, verbal and physical abuse/violence, and mental health crises, such as self-harm
and suicide. Additionally, the language used in this Note attempts to succinctly discuss the usage
of identity terms used throughout the LGBTQ+ community, and in no way implies limits on ways
individuals can identify themselves. It is important to recognize that individuals can self-identify
in numerous ways, varying based on cultural, communal, and individual preferences in
terminology.
** Editor's Note: This Note won the Barbara W. Makar Writing Award for the best Note
submitted to the Journal among the editors of the Class of 2023.
*** Acknowledgements to Professor Stephanie Bornstein of University of Florida Levin
College of Law for her assistance in producing this Note. Thank you to the University of Florida
Journal of Law and Public Policy for choosing to publish this Note and awarding it the Barbara
W. Makar Writing Award. Thank you to Simone Chriss (Director of Southern Legal Counsel's
Transgender Rights Initiative), Meredith Moore, Cynthia Diamond, and Abby O'Connell for their
ongoing feedback and willingness to share their knowledge. Last, but certainly not least, thank
you to my mother and fifth-grade teacher, Michelle O'Connell, who not only taught me to write,
but to love writing, and encouraged me throughout writing this Note.
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"What's in a [Dead] Name?": Title VII Protections against Misgendering and Deadnaming of Gender Diverse Individuals
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