Sunday, April 2, 2006
Transexual Can Sue for Sex Discrimination Under Title VII
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
The "sexual identity" theory used by the court in the Schroer case may lead to a split between courts that view transgender status as a matter of surgery, and those that view it as a matter of self-determination of gender.
The failure of the "sexual identity" theory has long angered transsexual advocates, who feel that the courts have ignored the scientific validity of the surgical cure for the conflict between their anatomy and their opposite-sex neuro-psych identity as male or female. Surgery is the sine qua non here, and distinguishes real transsexuals from cross-dressing "transgenderists."
On the other hand, many transgender advocates were never comfortable with the "sexual identity" theory, and were happy to see it disappear. It's their contention that "gender identity" policies are important to protecting a broad range of employees from sexism, sexual harassment and homophobia in the workplace, including women who are macho go-getters and men who aren't.
It should also be noted that the term "sexual identity" is an older term not in favor among many transgender advocates because it alludes to an anatomical/biological view of identity. The preferred term used by the those now driving the transgender law movement is "gender identity," which implies that psychological gender has no relation to anatomical sex.
Posted by: Jillian Todd Weiss | Apr 18, 2006 6:17:49 AM
trying to locate my land mark civil rights case Re: united states district courtof iowa central division civil docket for case :4:89-cv-70839-hdv
Posted by: tammy white | May 31, 2009 10:12:25 AM
This case could mark an important paradigm shift for treatment of transsexuals under Title VII, if it stands up on appeal (and assuming that ultimately the government will appeal). Two 6th Circuit panels and a district judge in Pennsylvania have, over the past year, ruled that transsexuals can sue under Title VII using the sex stereotyping theory in its "gender non-conformity" guise, but Judge Robertson won't go for that route, despite sympathizing with the result. He does a good job of pointing out the weaknesses in the 7th Circuit's Ulane decision, upon which most of the subsequent denials of protection to transsexuals have relied. Robertson says that perhaps Ulane was correctly decided at the time, but that a few decades of development in the law have given more support to the district court opinion in that case by Judge Grady -- a decision startling in its empathy for the transsexual plaintiff and striving to find a legal theory to support her cause of action. In particular, Robertson notes that the Ulane court dealt with legislative history in a way that was perhaps acceptable in the mid-1980s but would be a bit out of the new mainstream of our current decade.
Posted by: Art Leonard | Apr 2, 2006 8:29:21 AM