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September 26, 2007

10th Circuit Denies Title VII Protection to Transsexual Plaintiff

In Etsitty v. Utah Transit Authority, 2007 WL 2774160 (10th Cir. Sept. 20, 2007), the Tenth Circuit ruled that a transsexual is not protected by Title VII as a class and that this particular plaintiff could not establish "Price Waterhouse" gender non-conformity discrimination.

Krystal Etsitty worked for the Utah Transit Authority as a bus driver when she began to transition from male to female.  She could not afford genital reassignment surgery, so she retained her male genitalia while she began to dress in a more feminine manner and started using women's restrooms.  Id. at *1-2.  Etsitty's trouble stems from her use of women's restrooms along her bus routes, which ultimately led to termination of her employment.  Id. at *2.  Her supervisors claimed that she was fired due to their concern about the possibility of public concern and potential liability stemming from Etsitty's use of women's restrooms while retaining male genitalia. Id.

First, the court held that Title VII's prohibition against workplace discrimination on the basis of "sex" does not include transsexuals because it only protects against discrimination discrimination against '"women because they are women and men because they are men.'" Id. at *4 (quoting Ulane v. E. Airlines, Inc., 742 F.2d 1081, 1085 (7th Cir. 1984)).  The court noted, however, that "[s]cientific research may someday cause a shift in the plain meaning of the term 'sex' so that it extends beyond the two starkly defined categories of male and female."  Id. at *5 (emphasis added).

Perhaps the Tenth Circuit is unaware of current data specifically explaining that "sex" (at least on a biological level) is not binary.  In other words, intersex individuals (with both male and female biological characteristics) exist and clear scientific and medical research provides positive proof of this fact.  See, e.g., Clinical Guidelines for the Management of Disorders of Sex Development in ChildhoodSee also Sara R. Benson, Hacking the Gender Binary Myth:  Recognizing Fundamental Rights for the Intersexed, 12 Cardozo J. L. & Gender 31 (2005).  In fact, courts have recognized this fact as well when addressing marriage and name changes for transgendered individuals.  See, e.g., In re Heilig, 816 A.2d 68, 72 (Md. 2002) (citing Julie A. Greenberg, Defining Male and Female: Intersexuality and the Collision between Law and Biology, 41 Ariz. L. Rev. 265 (1999)).

Thus, the Tenth Circuit's reasoning seems flawed, especially due to the fact that it relies so heavily on the claim that there are only two sexes when excluding transsexuals from Title VII protection.

Next, the court decided not to address the gender nonconformity issue as Etsitty failed to establish an issue of material fact as to whether the reason proffered by UTA in support of firing her was pretextual.  Etsitty, 2007 WL 2774160, at *6.

This element of Title VII (pretext) is meant to allow the plaintiff's claim to survive summary judgment so long as he or she can demonstrate that the employer's '"proffered explanation is unworthy of credence.'"  Id. at *8 (quoting Stinnett v. Safeway, Inc., 337 F.3d 1213, 1218 (10th Cir. 2003)). 

Here, UTA management claims that they are afraid of liability due to Etsitty's use of women's restrooms.  This potential "liability" would stem from the fact that women using such restrooms would observe a "UTA employee with male genitalia . . . using the female restroom."  Id. at *2. 

Honestly, how would such a thing happen?  I have never viewed another woman's private parts while using the restroom.  Why not?  Because women's restrooms have stalls!  Unlike male restrooms, where individuals use either a stall or standing urinal (where genitalia might be public), women's restroom stalls are quite private.  Are the employers in this case suggesting that this transsexual must be a exhibitionist due to her transsexual status?  In other words, do they think that simply because she is in transition she will flaunt her male genitalia for all to view in the restroom?  I think not.  Why?  Because transsexuals generally would rather be seen as their transition sex/gender, not a mix.  In fact, Etsitty clearly states that she would have had the operation already, but she could not afford it (which is no surprise as the operation itself is very expensive and generally not covered by health insurance companies).  Id.

In my humble opinion, Etsitty has established pretext and should be permitted to pursue her claim past the summary judgment stage.

Interestingly, UTA management said that they would gladly give Etsitty her job back once she has fully transitioned (ie. after the surgery). Id. However, she could not afford the surgery when she had a job, so how will she afford the surgery after her dismissal? 

Unsurprisingly, the court also dismisses her equal protection claim based on the analysis of her Title VII claim.  Id. at *10.

September 26, 2007 in Employment Discrimination, Equal Protection, Sara R. Benson | Permalink


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Professor Benson, what are the prima facie elements of the "gender non-conformity discrimination" you mention? Also, was the tenth circuit not aware of cases such as City of Cincinnati v. Barnes (2005 U.S. Briefs 292A) where, to the best of my understanding, the Supreme Court upheld (implicityly, by denying certiorari) a lower court's ruling that could be seen as somewhat analogous to the case at bar, although still distinguishable given UTA's reasons for firing Etsitty?

Posted by: David Musselwhite | Sep 26, 2007 2:26:53 PM

Thanks for the comment!
The court said that it was not going to address the "pricewaterhouse" gender non-conformity claim because it could dismiss on another ground (she could not establish an issue of material fact on grounds of pretext, assuming she had established a prima facie case). But, the court, in footnote 3, seems to suggest that it would not uphold a Title VII gender non-conformity claim here.

Yes, the court was aware of the Barnes v. City of Cincinnati case, as it specifically cites the case on p. 6 of the opinion. But, again, it notes that it will assume that she has established a prima facie case here and goes on to state that even within the burden-shifting framework of McDonnell Douglas, the plaintiff would lose due to inabaility to demonstrate pretext. This is where I disagree with the court's analysis.


Posted by: Sara Benson | Sep 27, 2007 11:15:48 AM

I can't say that I'm surprised. I am m2f transgendered myself and have been discriminated against beyond measure. We can't afford the necessary surgeries to be completely female so people discriminate. Having both male and female genitalia, what are we supposed to do if we have to go to the restroom in the middle of Wal-Mart? Hormones cause m2f patients to have to urinate more frequently. What if there are not "unisex" restrooms? We get arrested for using either male or female restrooms. So what are we to do urinate in our clothes? Why don't all of us transgender people just commit suicide so we can make it easier on the people who were fortunate enough to be born in the right body. This is no different than the discrimination that African Americans faced during the days of "Whites only restrooms". Yes there are some exceptions to this! There are some people who shouldn't be allowed access to women's restrooms, but others who should. People for instance who have had a legal name change and been on hormones for so long that they are "chemically castrated". We deal with enough hatred and bigotry without the government and laws discriminating on us too!

Posted by: Katie Marie Nelson | Mar 30, 2009 7:19:07 PM

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