Although normally the 9th Circuit is the trend setter on new trends in labor and employment law, in Kastl v. Maricopa County Community College Dist.(9th Cir. 4/14/09) [pdf] it found itself following the 6th Circuit’s 2004 decision that transgendered employees can state a claim under Title VII on a sex stereotyping theory.
In Kastl it was a male to female employee who was barred from using the female restroom. Interestingly, although it held she could state a claim under Title VII, summary judgment for the employer was upheld because she was unable to rebut the employer’s articulated business reason. That may be why the decision was unpublished.
Hat tip to the folks at Alaska Employment Law for catching this development.