Sunday, April 2, 2006
In a somewhat surprising decision, a court has found that a transexual applicant for employment may proceed on a claim for sexual discrimination under Title VII. The conventional wisdom has been that just like sexual orientation discrimination is not sex discrimination under Title VII, neither is discrimination of transexuals. Indeed, a number of states have recently added discrimination against transexuals as a separate category in their anti-discrimination laws. (See posts on recently enacted transexual discrimination laws here and here).
Nevertheless, in the recent case, Schroer v. Billington, from the District of District of Columbia Court, a male to female transexual claimed that she was not hired by the Library of Congress because she was a transexual. In denying the defendant's motion for failure to state a claim on which relief may be granted, the court found that:
Plaintiff’s allegations of sex sterotyping do not state a claim under Title VII, but, because discrimination against a transsexual may nevertheless violate Title VII’s proscription of discrimination "because of...sex," the motion to dismiss will be denied.
Although the court recognized that, "[u]ntil very recently, all federal courts squarely facing the issue had held that Title VII does not prohibit discrimination on the basis of transsexualism or gender identity," the court nevertheless concluded that "the failure of numerous attempts to broaden Title VII to cover sexual orientation says nothing about Title VII’s relationship to sexual identity, a distinct concept that is applicable to homosexuals and heterosexuals alike."
Consequently, the court ordered further discovery to determine whether, in the words of a previous decision by another district court, "the term 'sex' 'literally and...scientifically' [may] appl[y] to transsexuals, but not to homosexuals or transvestites."
As this case has the potential to prove ground-breaking on the issue of transexuality under Title VII, I will post updates as the case develops.
Hat Tip: How Appealing