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April 7, 2008

Transsexual Plaintiff Defeats Summary Judgment--S. Dist. of Texas

The United States District Court for the Southern District of Texas denied both the plaintiff's and the defendant's motions for summary judgment in Lopez v. River Oaks on April 3, 2008.  This case is interesting because there is no current Fifth Circuit decisions addressing the issue of whether a transsexual can proceed with a Price Waterhouse-type gender non-conformity claim under Title VII.

In that case, a pre-operative male-to-female transsexual applied for a job with the defendant.  On her job application form, she provided multiple names (Izza and Raul--her legal name).  During her interview, she thought that the employer was aware of her transgender status.  She was offered a job, however, the job offer was rescinded after a background check revealed she was male.  Although she quit her other job to accept the position, she was informed by the defendant that the job offer was going to be rescinded due to her "misrepresentation" of her gender on her job application.

First, the court recognized that a transsexual plaintiff may state a cause of action for gender non-conformity using the Price Waterhouse sex stereotype analysis.  Although the court found that the plaintiff's argument that discrimination against transsexuals is sex discrimination per se was waived, the court recognized that transsexual plaintiffs can state a cause of action for sex stereotypes (in line with decisions like Smith v. City of Salem from the Sixth Circuit Court of Appeals).   

The court also found that there may have been direct evidence of discrimination in this case due to the letter rescinding the job offer based on her alleged "misrepresentation" of her sex.  Although a jury might find the letter reflected a neutral policy (against hiring individuals with application materials that are inconsistent with the background checks), the jury could also understand this explanation as pretextual and a cover-up for sex discrimination.  Thus, the court denied both parties' claims for summary judgment.  Where sex is not a bona fide occupational qualification (or an essential job qualification), the court found that a potential employee has no legal duty to reveal her Gender Identity Disorder or her biological sex to the employer.  The entire opinion can be found on the Lambda Legal webpage here.

April 7, 2008 in Employment Discrimination | Permalink


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Any idea what the history is in job applications requiring that the applicant supply a gender?

Posted by: Athena's Mom | Apr 8, 2008 8:24:32 AM

Excellent question! I have not specifically researched this area, but the court noted that it was not aware of any case-law suggesting that an employee had to legally disclose his or her gender identity disorder when applying for a job and the court declined to create such a duty in the absence of a "bona fide occupational" reason for the sex disclosure requirement (for instance, if the nature of the job required members of a particular sex, such as the requirement that an all-female prison be run by female staff members due to the sexual abuse history of many of the inmates).

Posted by: Sara Benson | Apr 8, 2008 1:11:24 PM

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