« SSRN Sexuality and the Law Abstracts | Main | Obama on LGBT Issues »

April 10, 2008

Transgender exclusion from ENDA

The Workplace Professor Blog points out that Sen. Edward M. Kennedy has taken the position that the ENDA should cover sexual orientation (including gays, lesbians, and bisexuals), but not sexual identity or gender identity.

Then, the Bloggers point out that the ENDA should include gender identity/transgendered individuals instead of leaving the courts to grapple with the issue.

I couldn't agree more.  The courts can recognize protection for transsexual individuals by using the Price Waterhouse analysis under Title VII, but why not provide courts with clear guidance on the issue by including sexual identity/gender identity in the scope of ENDA?

April 10, 2008 | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Transgender exclusion from ENDA:


I am Transsexual and was terminated from Federal employment for transitioning openly on an Army base. I do not see where Title VII of anything is in place to assure me safety of a means to live my life as are afforded others. There is no question to the intent and action of judicial law in the face of non-traditional gender roles or individuals.

Transsexuals and Intersex… have medical issues that are congenital and not necessarily a mental disorder or condition that has a psychiatric solution
Every ten minutes a child is born, 1/2500, in which the doctor cannot determine the sex, or gender. This is not talking about homosexuality, but tragically a congenital condition of birth which can be caused by endocrine agents and chemicals. These children are Intersex; they are born into a life of not male or female. Likewise in similar fashion the Transsexual is identified with a Bioneurological congenital condition, and they too are locked into something not quite so clearly defined as male, or female gender. The best we can do is live as close to what we seem to believe we are. That may preclude the wants, and often ignorant and bigoted beliefs of others. In what case do we ignore this issue and abandon the children who now cannot hide? How can anyone continue in hate and prejudice so as to deny simple equality and justice? Not an easy thing to resolve, but one that is present and will not go away. I can appreciate other’s opinions, and the freedom to express same, but I would hope all would be with regard to the children, teens, and emerging adults, and all who are not so fortunate to have been born by someone’s idea of “normal.” As a Conservative, Christian, Parent, and “Transsexual”, I believe the law should be equal for everyone, or it is not fit for anyone, yet, equality and recognition are still a dream for many.

Posted by: stellewriter | Apr 10, 2008 12:56:16 PM

Thank you for your comment. I agree that the law should protect everyone in the LGBT community from discrimination on the basis of sex.

Posted by: Sara Benson | Apr 10, 2008 2:44:41 PM

Discrimination on the basis of Transsexuality is clearly permitted - see Initech vs Waddams et al.

"Under Ettsity, Title VII protection extends to transsexual employees only if they are
discriminated against because they are male or because they are female. A sex discrimination
claim based transsexual status distinct from male or female status is insufficient to support a
cause of action under Title VII."

"Hamm v. Weyauwega Milk Products, Inc., 332 F.3d 1058, 1067 (7th Cir. 2003). Indeed, to read Title VII so as to prohibit *any* discrimination because of nonconformity to sex stereotypes would create, as Judge Posner continues somewhat bluntly, “ a federally protected right for male workers to wear nail polish and dresses and speak in falsetto and mince about in high heels, or for female ditchdiggers to strip to the waist in hot weather.”

Congress *has* clarified the matter. By refusing to include Transsexual people in ENDA - only Homosexuals - Congress has made it quite clear that discrimination against transsexuals is not just allowable but may even be laudatory. That is their intent, regardless of how one may feel about it.

I'm Intersexed, so am also affected.

Posted by: Zoe Brain | Apr 11, 2008 6:26:04 PM

True, discrimination on the basis of transsexuality is currently permissible under Title VII. However, discrimination on the basis of sex stereotypes is not. So, transsexuals are neither included nor excluded from Title VII as a class. Where a transsexual plaintiff can demonstrate that he or she was discriminated against for failing to conform to gender stereotypes, a Title VII cause of action has been permitted (see Smith v. City of Salem out of the Sixth Circuit, for example).

Posted by: Sara Benson | Apr 13, 2008 11:00:06 AM

Post a comment