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

AUSTIN — 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."

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."