Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Sunday, September 30, 2007

Transgendered Employee Not Protected Under Title VII

10thcir_2  In Etsitty v. Utah Transit Authority, ___F.3d ___(10th Cir. Sept. 20, 2007), the 10th Circuit held that a public transit authority did not unlawfully discharge a trans-gendered employee. The plaintiff was born a male, but identified herself as female. While she has begun the transition process, she is considered a pre-operative trans-gendered individual. Query whether such individuals are protected from sex discrimination under Title VII?

In a lengthly opinion, the 10th Circuit concludes that they are not. The court reasoned:

In light of the traditional binary conception of sex, transsexuals may not claim protection under Title VII from discrimination based solely on their status as a transsexual. Rather, like all other employees, such protection extends to transsexual employees only if they are discriminated against because they are male or because they are female.

Plaintiff also asserted a Price-Waterhouse theory arguing that even if being trans-gendered is not protected class under Title VII, adverse employment actions based upon sexual stereotyping- about how a man or woman should act is protected.

Unfortunately, the court side steps this important issue and does not decide it. Why? Because the court found that the employer had a legitimate non-discriminatory reason for its decision. What was that you might ask? The employer only had one rest room!! The court reasoned:   

However far Price Waterhouse reaches, this court cannot conclude it requires employers to allow biological males to use women’s restrooms. Use of a restroom designated for the opposite sex does not constitute a mere failure to conform to sex stereotypes.

This is really a sham reason used to support the courts decision not to reach the Price-Waterhouse issue. Of course, the employee will have to use the bathroom. All employees do. Since all employees have to use the bathroom, the court essentially rejected the Price-Waterhouse sexual stereotyping theory. I just wish the court was a bit more honest and upfront with its reasoning.

Hat Tip: Leonard Link

Mitchell H. Rubinstein

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Despite the opinion's length, it's refreshing free of cogent argument and logic.

The Court upholds an employer's monitoring of its employees' genetalia; the employer made the decision to fire a female-appearing and acting employee for wanting to use various publicly-available women's bathrooms only after asking about, and based upon, her pre-op status (she couldn't afford it).

The Court rules it's okay, of course, to require this one employee to prove up her/his genital status before allowing entry to a particular toilet because it's okay, of course. That's it (and even thought every other employee is allowed to self-select their toilet).

The Court upholds fear and suspicion (an as-yet-imaginary potential concern about complaints) as a non-discriminatory grounds for termination, even though conflicts would likely only be based on the employee's perceived gender.

(And, have you ever tried to construct an argument for upholding sex segregation in employer-provided bathrooms? Both sexes can "use" any bathroom, so the BFOQ is out the door, and I can't quite get the job-relatedness or business necessity of segregation. We got your "privacy" and "safety" arguments, of course, but those pop up every time a civil-rights requirement undos segregation.)

Posted by: kent | Oct 1, 2007 3:45:26 PM

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