The Trump administration barred trans TSA screeners from patting down passengers, as I was the first major travel outlet to report. Now one is suing for sex discrimination.
The TSA policy aligns the agency with the President’s executive order declaring that there are two sexes, male and female. They had no other way of taking that edict seriously while also complying with their policy that pat downs are supposed to be performed by a screener with the same gender as the passenger.
- Is a man who transitioned to become a woman supposed to pat down male or female passengers?
- Previously, TSA followed a Biden administration directive from 2021 assigning pat downs based on the screener’s self-declared gender identity.
Danielle Mittereder is a transgender woman who worked for TSA at Washington Dulles airport since July 2024. She trained and worked as a woman, as was well-rated. She argues that pat downs are a core duty of her screening role, and she was trained to conduct pat‑downs of female passengers consistent with her gender identity. Her work changed in February when the agency started assigning pat downs based on sex, not gender identity. She argues,
- The pat‑down ban applies only to transgender screeners. Non‑transgender screeners are unaffected by the policy.
- She can no longer perform two rotating positions that require pat‑downs, which she frames as a loss of core duties and a barrier to advancement (Lead/Acting Lead/Instructor/Supervisor/Manager roles all require pat‑down competence).
- The new restroom rule also prevents her from using TSA‑controlled women’s restrooms in secured areas, which she describes as burdensome, and outs her identity to co‑workers and passengers. TSA also treats her as “limited duty,” restricting shift trades and extra shifts.
She contends she’s the victim of Title VII sex discrimination (based on transgender status/sex stereotyping) and wants the pat down policy blocked, compensatory damages, fees, and costs.
- Discrimination against a transgender employee is discrimination “because of sex” under Title VII (Bostok v. Clayton County). EEOC decisions also support that gender identity is covered by Title VII and that barring restroom access consistent with gender identity violates Title VII.
- She only needs to show “some harm” to a term, condition, or privilege of employment. (Muldrow v. St. Louis) There’s no threshold for significance. Loss of a core duty, impeded advancement, shift limits, and restroom restrictions should qualify.
- The policy on its face targets transgender employees. She argues she’s treated worse than similarly situated non‑transgender officers and penalized for not conforming to sex stereotypes.
In response, the government will surely argue that she maintained the same pay and title and that adjustment to duties was minor. (However Muldrow is a tough standard for the government here, since ‘some harm’ to duties should suffice.)
They’ll likely frame pat‑downs as intimate searches where sex‑based staffing is necessary to protect traveler privacy and avoid objections, and that “biological sex” is necessary in this context. By the way, TSA screeners manipulating the process to fondle attractive passengers has been a problem. And that’s true even with same-sex pat downs.
Passengers are forced to undergo pat downs under color of law, but the plaintiff will argue that officer gender in that process is mere ‘customer preference’, that sex is not a bona fide occupational qualification, and that privacy can be accommodated without categorically excluding transgender women from women’s pat‑downs (e.g. allow customers to state a preference for pat downs by an officer of the same sex not gender identity, but this may be unworkable without the officer sharing their sex vs. gender identity at the start of the process). TSA’s security mission will weigh here, but the President’s Executive Order cannot authorize violations of Title VII.
- Under Bostock, treating a transgender woman as male for job assignments is pretty clearly sex discrimination. And the threshold the plaintiff needs to show here is exceptionally low.
- Passenger privacy for pat downs creating a bona fide occupational qualification seems like the primary defense for the government. Pat downs involve intimate touching, and using “biological sex” is likely something passengers demand. On the whole female travelers won’t want to be touched up by a biological male who has transitioned. And respecting this is key to compliance with a process deemed necessary for aviation security.
To qualify as a bona fide occupational qualification, employers have to show the essence of the business would be undermined and that there’s no workable, less‑discriminatory alternative.
That seems reasonable on face, except the TSA allowed assignment by gender identity for three years and it will be tough to show that the screening process and compliance was harmed.
I’d love to hear from subject matter experts on this, but I think the plaintiff is likely favored under current law. They were disfavored in their “terms, conditions, or privileges” of employment under a very weak standard (that I believe should have a higher threshold). And the government has to show that traveler privacy and the core security function is harmed, when there wasn’t an obvious harm from the Biden administration policy that was overturned.
Can the Trump administration be forced to allow transgender screeners to pat down passengers at airports? I guess we’ll find out.
Oh boy, I recall your earlier post from February of this year, Gary. Great times. Real ‘logical’ and ‘calm’ arguments back there. Time for a redo, eh? Tell us about ‘common sense’ and ‘DEI,’ again, please.
In all seriousness, of course, this policy is discriminatory, and I wish the plaintiff, Mittereder, well. I am glad that Gary generally expects her to succeed, and hope that’s the case. Go Bostock! Yeah, that BFOQ defense is weak, because, the prior administration allowed allowed assignment by gender identity for three years, so they cannot now claim the core ‘security mission’ was suddenly undermined by the old policy, mere because this administration wants to do ‘culture war’ lies.
Should it not be the passenger sho decides. Either way a male can agree to have a female pat down if they want to. Where as the same for a female.
A female who has been abused by a male may not want a MTF or a FTM to pay them down but request only a female for their own peace of mind
It should be up to the passenger
A pat down is an intimate, physical security procedure. It exists to protect travelers and maintain trust in the system. That trust collapses the moment you tell a woman who requested a female screener that she may instead get a biological male because he identifies differently. This is not discrimination, it is the recognition that biological sex matters in certain contexts, especially ones involving physical contact. That is not bigotry, it is common sense. The TSA is a security agency, not a social experiment. If we cannot acknowledge basic physical distinctions in a situation like this, then we have abandoned all reason.
Gary – she will likely lose. Assume you know SCOTUS has already ruled that gender ID is an inappropriate extension of Title VII since the law species “sex”, not gender ID. The extension was consistent with Biden’s approach and the restriction consistent with Trump’s. There is already case law treating sex and gender ID differently.
@Mike Hunt — Nice try, but your premise fails under current federal law.
Like Gary said, Title VII (Bostock) defines discrimination based on transgender status as illegal sex discrimination. To justify your ‘biological sex’ requirement, the TSA must prove it is a Bona Fide Occupational Qualification (BFOQ). That’s really tough for them to do.
They’d need proof that the ‘essence of aviation security’ would be undermined without it. Passenger preference alone is insufficient, and the TSA’s prior successful use of a gender-identity policy directly undercuts the claim that the ban is absolutely necessary.
All that said, maybe this’ll get appealed all the way to the Supreme Court, where a 6-3 decision, by the rogue conservatives, will ignore all that and side with the administration, just because they can. Is this the hill they wanna die on, Mike… Hunt?
Trump will win this case. He will not back down so eventually it gets to the supreme court. At that point it becomes a political decision rather than a judicial decision. They need to chose carefully where they wish to go against him.
This is not a case that they will want to burn capital on. We have seen this over and over again. For example, they care about FED independence so stand up to him there, but allow him fire heads of other agencies they do not care about so much.
I just want to get through the line and to my gate, I really don’t care who does the pat down as long as it is done quickly and professionally. I would wager that my outlook is the same as the vast majority of travelers. A person should be allowed to request a different TSA agent for any reason, but in doing so they should also understand that there may be delay.
@ 1990 – Your entire argument assumes that Title VII magically erases physical reality. It does not. Bostock said you cannot fire someone simply for being transgender. It did not say that every sex specific role in the country must now ignore biology. That is why the BFOQ standard exists in the first place. Some jobs require sex based distinctions because the task itself involves intimate physical contact. A pat down is exactly that kind of task.
You say the TSA must prove the rule is essential to the “essence of aviation security.” Fine. Protecting passenger privacy and preventing unnecessary cross sex contact during a compulsory search is absolutely part of that essence. Every major law enforcement and corrections agency in the country recognizes this distinction. And the fact that the TSA briefly experimented with a gender identity policy does not prove it was safe or wise. It only proves the agency tried to appease activists before running into the predictable problems.
As for the Supreme Court jab, spare me. When a court acknowledges an obvious biological distinction, that is not “rogue,” it is sane. If this case gets there and the Court restores basic reality to a security procedure that requires it, that will not be conservatives “dying on a hill.” It will simply be adults putting a boundary back where it always belonged.
@Ron: thank you!
@Ron — Well said, sir. That’s a very practical, tolerant view. Thank you.
@Mike Hunt — One more time for you: Whether the law allows the TSA to ignore Title VII in this context rests entirely on whether the BFOQ defense survives legal scrutiny. Because the BFOQ is so narrowly applied, the plaintiff’s case has a strong chance of success.
So, please do go on about ‘common sense’ (which isn’t defined, is subjective, and certainly isn’t the law), whine about ‘comfort’ (even though @Ron has the right idea above), and tell us more about ‘trust’ (Really? This administration? That President? You gotta be kidding me.)
Reminds me of that old saying, which your buddy Alan Dershowitz likes to repeat: “If the facts are against you, argue the law. If the law is against you, argue the facts. If the law and the facts are against you, pound the table and yell like hell.”
@1990
I’ve seen you eviscerate commenters on this blog many times. However, it’s seems that in this case Mike Hunt is not just some conservative troll but knows what he’s talking about. So your go-to arguments aren’t very effective this time.
It seems to me that this time you’re the one acting out the Alan Dershowitz like you quoted.
Mike Hunt, in his rebuttal comment doesn’t mention “trust”, “common sense” or “comfort”. Yet you didn’t respond to his arguments but instead resorted to basically name calling. Hopefully other readers will see this distinction.
@ 1990 – You keep repeating that the case “rests entirely on the BFOQ,” as if that somehow bolsters your point. Yes, of course it rests on the BFOQ. That is the entire mechanism Congress built for situations where sex based distinctions are unavoidable. The plaintiff has a chance, sure, but pretending the TSA cannot possibly meet that standard is wishful thinking. Courts have long recognized that roles involving compulsory intimate contact can justify sex specific assignments. Pat downs are not symbolic interactions, they are physical searches. That alone puts them in a different legal category than hiring someone to work the ticket counter.
You dismiss “common sense” as subjective, but the law routinely incorporates exactly that kind of reasoning. “Reasonable expectation of privacy” is not defined with mathematical precision either, yet it governs search and seizure. A female traveler’s expectation that she will not be physically searched by a biological male is not comfort, it is a clear privacy interest that any sane system respects. The TSA is not required to pretend otherwise just because activists demand it.
As for the Dershowitz line, you might want to look in the mirror. The facts, the biology, and the public’s legitimate privacy interests are all pointing one direction. The only way to argue against them is to reduce everything to snark about the administration and hope no one notices that your position collapses the moment you acknowledge what a pat down actually is.
@Mike Hunt — The facts and law are on this plaintiff’s side. Under normal circumstances, she’s got a ‘win’ here. But, like I said, if this Supreme Court wants to do yet another 6-3 on party lines, that’ll be that. Let’s continue to follow this; could take years.
However, debating what is and isn’t ‘common sense’ on here is peak ‘pounding the table,’ bud. You should know that the law isn’t always common sense anyway. Like, at all.
@Ben — I provided ample substantive responses (see above), few if any ad hominems; to suggest otherwise is disingenuous, and shows that you merely prefer the outcome that Mike also prefers. That’s fine, prefer whatever you guys wish. I applaud your ability to ‘cheerlead’ for whatever ‘side’ you like. That doesn’t mean I (and others) won’t speak up or oppose your preference.