Gender Identity Discrimination Laws in South Carolina

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, prohibits employment discrimination based on race, color, religion, sex, or national origin. It covers employers with 15 or more employees. The law is enforced by the Equal Employment Opportunity Commission (EEOC).

Title VII does not explicitly mention gender identity or transgender status. However, in Bostock v. Clayton County, 140 S. Ct. 1731 (2020), the U.S. Supreme Court held that discrimination based on an individual's failure to conform to sex stereotypes or discrimination based on sexual orientation might constitute unlawful sex discrimination under Title VII. This decision created ambiguity regarding whether gender identity discrimination could be challenged as sex discrimination.

The EEOC has taken the position since 2012 that Title VII prohibits discrimination based on gender identity. However, this interpretation is not universally accepted by all courts. Remedies under Title VII include back pay, front pay, reinstatement, compensatory damages, and punitive damages (up to $300,000 for larger employers). The statute of limitations for filing an EEOC charge is 180 days from the discriminatory act in non-deferral states; South Carolina is a deferral state with a 300-day filing deadline under the worksharing agreement with the EEOC.

South Carolina Code § 1-13-30 et seq. (the South Carolina Human Affairs Law) establishes the state's anti-discrimination framework. The law explicitly prohibits discrimination in employment based on race, color, religion, sex, or national origin. Notably, the statute does not include gender identity, transgender status, or sexual orientation as protected categories.

Unlike many other states, South Carolina has not expanded its anti-discrimination law to cover gender identity. The state law applies to employers with one or more employees, a lower threshold than federal law's 15-employee requirement. This means that even small employers in South Carolina are covered by state anti-discrimination law, but only for the protected categories listed: race, color, religion, sex, and national origin.

South Carolina's law is weaker than federal protections in that it does not provide state-level recourse for gender identity discrimination. While the EEOC has asserted that Title VII may cover gender identity in some circumstances, South Carolina has not codified this protection. The state does not recognize gender identity as a standalone protected class, and state courts have not definitively extended sex discrimination law to encompass gender identity claims.

The South Carolina Human Affairs Commission enforces the state law. Employees alleging discrimination must file a complaint with the Commission within 180 days of the alleged discriminatory act. Available remedies under state law include back pay, front pay, reinstatement, and compensatory damages. However, these remedies are only available for violations of the explicitly protected categories—race, color, religion, sex, and national origin—not gender identity.

Employees in South Carolina who believe they face gender identity discrimination have extremely limited legal options. They may attempt to file a federal charge with the EEOC and argue that the discrimination constitutes unlawful sex discrimination under Title VII, relying on the Bostock decision and EEOC guidance. However, this strategy is uncertain and requires framing the claim within an ambiguous legal framework.

South Carolina's anti-discrimination law contains narrow exceptions that are unlikely to apply to gender identity claims, as gender identity is not a protected category. However, understanding the law's structure reveals the limited scope of protection available.

First, the South Carolina Human Affairs Law explicitly carves out bona fide occupational qualifications (BFOQs). An employer may discriminate on the basis of race, color, religion, sex, or national origin if such characteristic is a bona fide occupational qualification reasonably necessary to the normal operation of the employer's business. For example, employers have successfully argued that sex is a BFOQ for certain roles. However, since gender identity is not a protected category, this exception is moot for gender identity claims.

Second, the law exempts employers with fewer than one employee from coverage under state law. However, federal Title VII may still apply if the employer has 15 or more employees.

Third, religious organizations are exempt from certain provisions of the state anti-discrimination law when hiring for religious positions. A school or other institution run by a religious organization may employ only members of that religion if the organization's principal purpose is the advancement and practice of religious beliefs. This exemption does not explicitly extend to gender identity discrimination, and its scope is limited to roles involving religious instruction or advancement of religious doctrine.

Fourth, South Carolina follows the at-will employment doctrine. Absent a specific contract or statutory protection, employers may terminate employees for any reason or no reason, including reasons unrelated to protected classes. Since gender identity is not a protected class, at-will employment doctrine provides no shield against gender identity-based terminations.

Fifth, federal law provides no explicit exemption for gender identity discrimination. However, the lack of explicit protection means that employers face no legal consequence under South Carolina law for such discrimination, effectively creating a de facto exception for private employers.

Step 1: Document the discriminatory conduct. Maintain detailed records of all incidents involving gender identity-related discrimination, including dates, times, locations, names of witnesses, what was said or done, and the business context. Save all written communications (emails, text messages, performance reviews) that relate to or evidence discrimination. Keep a contemporaneous journal or log of incidents. Document any adverse employment actions (termination, demotion, reduced hours, exclusion from opportunities) and their timing relative to your disclosure of gender identity or any other trigger. Photograph or screenshot digital records. Preserve all evidence in a secure location, including copies on personal devices and cloud storage.

Step 2: Follow internal complaint procedures if they exist. Review the employee handbook or workplace policies for a grievance or anti-discrimination complaint procedure. If one exists, follow it precisely—file a written complaint with the specified person or department, include dates and details of the discrimination, and keep a copy for yourself. Request written confirmation of receipt. Even though South Carolina does not recognize gender identity discrimination as illegal, documenting an internal complaint creates a record that may be useful for federal claims and shows the employer had notice. This step also protects you if the employer claims ignorance. However, do not expect resolution at this stage, as the discrimination is not unlawful under state law.

Step 3: File a charge with the appropriate agency. You have two options: (a) File with the South Carolina Human Affairs Commission (SCHAC) if you are alleging discrimination based on a protected category (race, color, religion, sex, or national origin). You must file within 180 days of the discriminatory act. However, if you are alleging gender identity discrimination alone, the SCHAC has no jurisdiction. (b) File a charge with the EEOC if you believe the discrimination constitutes unlawful sex discrimination under Title VII of the Civil Rights Act. You must file within 300 days from the discriminatory act (as South Carolina is a workshare state). The EEOC will accept charges alleging discrimination based on sex stereotyping or failure to conform to sex stereotypes, which may encompass gender identity claims following Bostock v. Clayton County.

To file with the EEOC in South Carolina, contact the EEOC's Charlotte District Office, which covers South Carolina. You may file in person, by mail, or electronically through the EEOC's online portal at www.eeoc.gov/filing-charge-discrimination. Provide your name, address, phone number, and email; the employer's name, address, and approximate number of employees; a description of the discriminatory conduct, including dates and individuals involved; and an explanation of how the discrimination relates to sex discrimination (connecting your gender identity claim to sex-based stereotyping or sex discrimination). Include any documentation of the conduct.

Step 4: Expect the EEOC investigation process and understand its limitations. After you file, the EEOC will notify the employer of the charge and may conduct an investigation, typically involving requests for documents and interviews with witnesses. The investigation may take several months. The EEOC will then determine whether there is reasonable cause to believe that discrimination occurred. However, because gender identity discrimination is not explicitly covered by federal law, the EEOC's determination will depend on whether it agrees with your framing of the claim as sex discrimination. Many EEOC investigators may be hesitant to pursue gender identity claims absent explicit statutory language, despite Bostock.

If the EEOC determines there is reasonable cause, it will attempt to conciliate—negotiate a settlement between you and the employer. If conciliation fails, the EEOC may file suit on your behalf, though it rarely does so. More likely, the EEOC will issue a Right to Sue letter, which allows you to file a private lawsuit in federal court within 90 days. Expect the investigation to take 3 to 6 months or longer.

Step 5: Consult an employment attorney experienced in federal civil rights law. Given the uncertain legal landscape surrounding gender identity discrimination in South Carolina, you should retain an attorney before or immediately after filing with the EEOC. An attorney can help you frame your claim as sex discrimination under Title VII, develop the evidentiary record to support sex-stereotype or sex-based discrimination arguments, and determine whether you have viable claims. If the EEOC issues a Right to Sue letter, an attorney is essential for filing a federal lawsuit. Look for an attorney licensed in South Carolina with experience in Title VII sex discrimination and civil rights cases. Many employment law attorneys work on contingency for discrimination cases, meaning they advance costs and take a percentage of any recovery.