Sunday, September 30, 2007
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