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.
Just let the passenger pick the gender of the person patting them down.
@1990 – You keep asserting that the “facts and law” are plainly on the plaintiff’s side, but anyone who has actually read the relevant case law here knows that intimate searches are one of the clearest areas where sex based assignments survive Title VII scrutiny. The Supreme Court in Dothard v. Rawlinson upheld sex specific staffing in contact-heavy prison roles precisely because the nature of the job made biological sex a legitimate qualification. Federal courts have repeatedly extended that logic to searches. In Everson v. Michigan Department of Corrections, the Sixth Circuit held that pat downs created valid privacy and safety concerns that justified sex specific staffing. The Second Circuit said the same in Forts v. Ward, recognizing that compelled physical searches implicate privacy interests that Title VII does not override.
There is even stronger support in Jordan v. Gardner, where the Ninth Circuit struck down cross sex searches of female inmates because of the predictable psychological harm and privacy invasion. These cases do not turn on “comfort,” they turn on the recognition that forced physical contact is a unique category where biology actually matters. Pat downs at TSA checkpoints fall squarely into that line of reasoning. The moment the court accepts that an airport pat down is a compulsory, intimate, body touch search, the BFOQ argument becomes far more defensible.
You can scoff at “common sense,” but the judiciary has already acknowledged for decades that privacy interests rooted in biological sex are legitimate and legally cognizable.
IAD is my home airport. I was recently the subject of a “pat down.” As a male, I preferred to be “patted down” by a female screener but I was denied. Told it was “against the rules.”
Since it is not possible to change your actual gender, what is the rule? Shouldn’t the passenger have final say on who touches him/her? Are we forced to participate in a mentally ill person’s gender dysphoria fantasy?
*looks for my popcorn*
I side with those who feel it should be the passenger’s choice. And what happens if I decide to opt out of a patdown with someone whose gender & biological sex don’t match?
Mike and the others – thanks for eviscerating 1990. It’s said that people who think they’re correct about everything are wrong more often than most. 1990 keeps proving the rule.
@ Ben & Dave – Thank you both. Now and then, the village has to unite to rein in its most wayward voice (to put it politely).
@Mike Hunt — The administration’s policy is overly broad; it prohibits all transgender officers, regardless of their medical transition status, presentation, or the passenger’s actual comfort level, from performing the duty. The policy was not necessary at all; it’s a culture-war talking-point; the TSA can achieve the goal of protecting passenger ‘privacy’ by making accommodations for passenger requests for a different officer, rather than proactively eliminating an entire class of protected employees from the job function based on status. The TSA is not gonna be able to prove that a ‘total ban’ is the only way total operate this.
Bostock (2020) held discrimination based *gender identity* is illegal under Title VII; that protects this screener’s right to perform all job duties consistent with their gender identity. Whereas, this BFOQ defense, in Dothard, Everson, and Jordan, relied on biological sex for same-sex inmate searches; and, as much as airports may feel like prisons sometimes, airports are not prisons, and we, passengers, are not prisoners. Ultimately, the government should not discriminate, and passengers should get the chance to pick a different agent, even if it causes delay; that’s the solution.
@Dave — Cheerlead all you want; doesn’t make your opinion, or Mike’s, right or wrong. This is technically a novel case, and it can go any way. My reading, unless the 6-3 court wants to weigh in, and decide on partisan lines, is that she’s gonna ultimately get paid here.
@Mike Hunt — Since you, @Dave, and @Ben, the so-called ‘village,’ are so confident, please note, on here, it’s ‘easy’ to rile-up certain folks (you know the types, ask them for their ‘true’ thoughts on ‘trans’ people), and to claim victory before anything is settled (no one has ‘won’ anything; in fact, I’d argue, we’re all losing here; because, we should be treating others much better than this.)
More broadly, anti-trans aggression is a reactionary political movement that uses gender and sexuality to mobilize a conservative base; it’s an authoritarian tactic, mastered first by Putin in Russia, and now, here, sadly, especially since the 2024 election. This TSA policy has nothing to do with the actual well-being of passengers, or children, or anyone; as it was back in February, this policy is simply about signaling a political promise to a specific demographic (the base); it’s about weaponizing ‘nostalgia’ to alleviate anxiety about social change. It’s the targeting of a marginalized group to consolidate power. For now, it’s trans and immigrants; who’s next?
So, the noble and challenging path (like in Bridge of Spies), is to defend an unpopular, but, necessary position, like to protect against discrimination, or in-favor of due process.
@1990 – You are trying to frame the TSA rule as an irrational “blanket ban,” but that ignores the core issue: compelled physical searches are treated as a unique category in federal law because they implicate bodily privacy in a way that ordinary workplace interactions do not. Courts have never required the government to tailor sex based search assignments with surgical precision to each employee’s presentation or medical history. In Everson, Forts, and Jordan, the courts upheld or demanded sex based search policies precisely because even well intentioned cross sex searches created predictable privacy and trauma concerns. None of those decisions turned on whether the officers “looked” masculine or feminine. They turned on biological sex because that is the factor that determines the privacy interest. The TSA’s policy tracks that logic.
Your argument that airports are “not prisons” does not actually help the plaintiff. The legal relevance of those cases is not the setting, it is the nature of the contact. A pat down is a compulsory, non optional physical search performed under government authority. The fact that passengers are not inmates does not eliminate the privacy interest, it strengthens it. Prisoners have diminished expectations of privacy and still receive sex-based protections. Law abiding travelers have a greater one. If cross sex searches were problematic for inmates in Jordan, they are even more defensible when applied to ordinary citizens who have not forfeited any privacy rights.
Bostock did not create a right for every transgender employee to perform every duty exactly as they wish. It held that firing someone because they are transgender is unlawful. It also explicitly left open situations where sex remains relevant to job duties. That is why Title VII still permits sex specific BFOQs in narrow categories. The plaintiff is not excluded from the job. She is restricted from one task that inherently depends on biological sex to protect the privacy of the public. That is exactly what the BFOQ provision was written for.
Your “just let passengers choose” solution fails for the same reason courts rejected similar arguments in corrections: the burden is on the agency to prevent predictable privacy violations, not on the individual to request protection after the fact. A system built entirely on reactive passenger requests would lead to disputes, inconsistent enforcement, and, ironically, far more discrimination claims. A uniform sex based assignment rule avoids all of that and aligns with decades of federal precedent treating intimate searches as a special category.
The TSA policy is not culture war overreach. It is the straightforward application of longstanding legal principles to a setting where the government physically touches the body of a private citizen. That is one of the areas where biological sex is not only relevant, but essential.
@Mike Hunt — Believe it or not, I am still enjoying the back-and-forth here. And, I still think you’re wrong, that your legal arguments are flawed, and that the practical harms are being ignored.
Bostock still applies. The TSA policy prohibits a transgender employee from performing a core job function (pat-downs) based solely on their transgender status (the mismatch between their biological sex assigned at birth and their current gender identity). This is textbook sex discrimination under Bostock’s reasoning, which holds that if the employee were non-transgender and their biological sex matched their gender identity, they would be allowed to perform the task.
If transgender officers can’t performing pat-downs and training others, the policy inevitably holds them back from higher-level positions, which the policy ‘promises’ won’t happen, but it does. It literally forces transgender employees to be “outed” to their coworkers and potentially subjects them to unwanted scrutiny, humiliation, anxiety, and depression by singling them out. It’s a material adverse employment action, not just a minor job restriction.
The BFOQ is a narrow exception to Title VII. If the passenger’s privacy interest is protected by matching the officer to the passenger’s stated gender identity, then requiring the officer’s job duties to be based on their biological sex is an irrational and unnecessary mismatch. Jordan is distinguishable because inmates who have a diminished expectation of privacy and often involve searches of a different scope and regularity than airport screenings.
If a transgender officer is trained and certified there is no evidence to support that they cannot perform pat-downs effectively or that their participation specifically creates a greater privacy risk than a non-transgender officer. Banning a class of trained officers from pat-down duties reduces the number of available officers for screenings. This can lead to delays for the traveling public and place an undue burden on non-transgender officers who have to pick up the slack.
One more time: This is all culture-war nonsense. It’s red-meat for the base. You know this. The policy is arbitrary and discriminatory overreach driven by prejudice against transgender people, not a necessary measure to genuinely protect passenger privacy. C’mon Mike… if they do this for trans; they’ll likely try it with other vulnerable ‘groups’ next… Gotta stop this here and now.
You keep repeating “Bostock applies” as if that ends the discussion. It does not. Even Gorsuch in Bostock went out of his way to say the ruling did not erase every sex based distinction in American law. It did not touch situations where biological sex is an essential element of the job. That is exactly why the BFOQ exception exists. The question is not whether someone is transgender. The question is whether a compelled, hands-on search of a person’s body implicates privacy interests that are tied to biological sex. Courts have said for decades that it does.
Your claim that the policy “forces” transgender officers to be outed is emotional framing, not legal analysis. Every sex based assignment policy has the same effect. In Everson and Forts, female officers were restricted from certain searches because of biological sex. That also limited their advancement. The courts still upheld the policy because the privacy interest of the person being searched outweighed the employment preference of the officer. Title VII does not guarantee every employee the right to perform every intimate duty regardless of sex. The law has said this many, many times over.
Once again, your attempt to distinguish Jordan because prisoners have less privacy actually cuts against you. If prisoners with reduced privacy rights still receive sex based protections during searches, then ordinary travelers with full privacy rights have an even stronger claim. You keep insisting pat downs are somehow less intimate because they happen at airports. Anyone who has ever had a secondary screening knows that is nonsense. The scope is different, but the nature of the contact is the same: government hands on your body.
The idea that matching screeners to the passenger’s gender identity resolves the privacy issue ignores the entire point. The privacy interest is rooted in biological sex, not self-declared identity. This is not controversial. It is how every court has treated forced physical searches since the 1970s. This is simply the law recognizing human nature.
And the argument about staffing shortages is weak. Title VII does not evaporate because an employer might need to schedule smarter. By that logic, a male corrections officer should be allowed to strip search female inmates because the shift is understaffed. No court has ever accepted that reasoning.
The truth is simple. You want to redefine a compulsory physical search so that biology is irrelevant. The courts have never done that, and the TSA is not required to be the first agency in history to pretend bodies are imaginary. Calling it “red meat” does not change the fact that your position collapses the moment you acknowledge what actually happens during a pat down. And the only culture war here is the one being waged against reality.
I feel we are starting to go around in circles here, so that’s it from me on this thread. But we shall see what happens in the courts. Enjoy being wrong in the interim. You are very good at it.
Mike Hunt was spot-on. And don’t forget Retired Gambler’s point: SCOTUS has already ruled that gender ID is an inappropriate extension of Title VII since the law species “sex”, not gender ID.
There will not EVER be a biological male patting my crotch or breasts in an airport. And if that becomes “legal”, I will likely be making a loud scene in the face of every shutdown, making my demand for a biological female known not only to the staff but to the travelers in line behind me. Something as simple as “I want to ensure it’s a biological female conducting the pat-down, please”, very loudly.
The plaintiff in this case is doubly stupid; first of all for damaging their own body via hormones or surgery simply because they “feel” different than their DNA — as if ANY MALE has any clue at all what if feels like to be a female. Secondly, for thinking their game of pretend supercedes my right to NOT be subjected to a male touching my crotch in public.
every pat-down (not shutdown)
I’m not sure a pat down is as good as some say it is. An alternate method should be researched. Then give people a choice whether to have a pat down or go through the alternate method. Maybe in the future the need for pat downs will disappear.
I have gone through many pat downs and I don’t know if any were given by transgendered or gay people (or heterosexuals for that matter). I really don’t care. My true concern is getting through quickly. I have changed my belt for flying to one that contains zero metal. The only problem I have is that I wear suspenders on flights to keep my pants from working down on the seats and the suspenders have metal clasps. I have been directed to take off my suspenders and belt before by TSA and that resulted in my pants falling to my ankles after I told them that would happen. You can’t fix stupid.
@Mike Hunt — Yeah, you’re repeating yourself.
You must see how @Lindy can’t hold back her animus: “plaintiff in this case is doubly stupid; first of all for damaging their own body via hormones.”
Sure, this is not a ‘culture-war’ policy at all… *facepalm*
@jns — LOL.