Saturday, August 20, 2016
This is a follow-up to Marcia's post immediately below. Christine Duffy (Senior Staff Attorney, ProBono Partnership, photo left) posted a comment to Marcia's post that I found particularly enlightening, so I phoned her yesterday and asked if I could copy the comment to the blog as a guest post. As we spoke, she indicated that there was more she'd like to add, so I suggested she do so and then I would turn that into a guest post. So ... here it is. Many thanks to Christine for this.
Although I concur with Marcia McCormick’s observation that the August 2016 opinion in EEOC v. R.G & G.R. Funeral Homes, Inc. is an interesting decision and will be appealed to the Sixth Circuit, I’m not as disheartened by it. The decision has a number of very positive aspects.
I already knew from an April 2015 opinion that the district court judge had rejected the reasoning of the EEOC’s Macy decision, which held that discrimination based on gender identity or transgender status is sex discrimination. So reading that again in the latest opinion was not unexpected.
Both district court opinions wrongly state that the EEOC is trying to expand Title VII to include gender identity and transgender status as protected classes. Rather, the EEOC and a number of courts have come to understand that discrimination based gender identity or transgender status (or sexual orientation for that matter) inherently involves sex discrimination.
From reading the most recent opinion, it appears that for purposes of the summary judgment motion the court treated this case as one involving “a man” who wanted to dress as “a woman.” This reading is consistent with the court’s earlier ruling on a motion for a protective order, where the court observed that “the relevant inquiry underlying [the gender-stereotyping] theory of liability is a subjective one – whether [the] supervisors perceived [the employee] as a man who was acting like a woman – rather than an objective one – whether Stephens was ever actually a woman.”
This casting of the defining issue is a common problem in cases such as this and arises in part due to the use of “transgender” to describe employees who are claiming discrimination. The fixation on using that term diverts the court’s attention from the fact that a person’s “sex” from a medical perspective is not necessarily the sex assigned at birth (based on a cursory examination of genitals) but is based on an amalgam of characteristics. That fixation makes it appear that gender-affirmed people have changed their sex when in fact they merely have accepted – or affirmed – their sex. What’s changing, if anything, is their gender expression.
Today, “sex” is understood as a mosaic of characteristics that come together to define our sex. These elements include the following:
- Chromosomal sex: determined by the presence or absence of the Y chromosome. Although XX is the “norm” for women and XY is the “norm” for men, there are many other combinations that individuals may have, such as XXX, XXY, XYY, YYY, and XO.
- Genetic sex: determined by the presence or absence of certain genes, such as the SRY gene on the Y chromosome.
- Gonadal sex: determined by the presence of ovaries or testes. Some people have a combination of female and male gonads (ovetestes) or one ovary and one testis.
- Hormonal sex: determined by the levels of androgens and estrogens, while in utero and thereafter. Some people’s bodies do not respond, or respond only partially, to the hormones in their bodies. For example, an individual may produce testosterone, but it has no masculinizing effect on the body. In contrast, higher prenatal exposure to and higher circulating levels of testosterone in women have been shown to reduce a woman’s aversion to risk. …
- Internal phenotypic sex: determined by the internal reproductive organs (which are sometimes also referred to as the internal genitalia). Some individuals may have incomplete organs, may be missing an organ, or may have a combination of male and female organs.
- External phenotypic sex: determined by the external genitalia, such as the clitoris/labia or penis/scrotum. These indicators can be ambiguous.
- Secondary phenotypic sex: determined by physical body shape, breast development, and body and facial hair. Some men may have gynecomastia (excessive growth of breast tissue) and some women may have hirsutism (excessive body or facial hair growth).
- Hypothalamic sex: determined by the sex of the brain, which is impacted by exposure to hormones and other chemicals in utero.
- Gender or sexual identity: determined by a person’s innate, deeply felt psychological identification as a man, woman, or something else, which is the “complex result of all genetic, hormonal, and environmental factors.” Some individuals have gender identities that do not correspond to the sex assigned to them at birth. Similarly, “[a]ll credible study of sexual orientation establishes that genetic, hereditary and biological influences are major factors in determining sexual orientation.”
- Gender expression: determined by the external manifestation of a person’s gender identity.
- Assigned sex, gender of rearing, and cultural and social gender roles: determined by the obstetrician at birth and by whether/how a child is raised as a boy or a girl. (footnotes omitted)
This same point is being made in Carcaño v. McCrory, one of the cases challenging the constitutionality of North Carolina’s House Bill 2. See, in particular, Deanne Adkins, M.D.’s declaration in that case. See also Milton Diamond, Biased-Interaction Theory of Psychosexual Development: “How Does One Know if One is Male or Female?”, 55 Sex Roles 589, 597 n.14 (2006) (explaining why transsexuals are intersexed in their brains).
It appears from reading the court’s decisions in R.G & G.R. Funeral Homes that the employee is a woman (not merely a person who identified as a woman) who was required to adhere to the men’s dress code. The employer, for religious reasons, refused to acknowledge that the employee is a woman. The real issue is whether this woman was discriminated against based on sex. This is an important point, a point Sharon McGowan drove home in the opening sentences of the splendid article about the landmark Schroer litigation that Sharon prosecuted while with the ACLU: “‘I haven’t gone through all this only to have a court vindicate my rights as a gender non-conforming man.’ I remember quite vividly the day that Diane Schroer expressed this sentiment to me.” Diane wanted to be seen in court as who Diane is: a woman.
Although the outcome at this stage in the R.G & G.R. Funeral Homes case is unfortunate for the employee, the court’s decision nonetheless contains a number of legal victories for gender-affirmed and gender-diverse people:
- The court effectively found that requiring an employee who was designated as a man at birth but who identifies as a woman to dress in accordance with the men’s dress code was direct evidence of sex discrimination.
- The court rejected the employer’s gender-specific dress code as a defense, a defense that was widely accepted in the past but which the court held can no longer be used in view of the developments in law relating to sex stereotyping. The court expressly rejected the Ninth Circuit’s 2006 en banc decision in Jespersen v. Harrah’s Operating Co., which had upheld a disparate gender-based grooming code because it didn’t impose an “unequal burden” on women.
- The court limited its Religious Freedom Restoration Act (RFRA) holding to “the unique facts and circumstances of this case,” finding that the EEOC failed completely in its RFRA obligation to fully explore whether there were less restrictive means available for vindicating the goals of Title VII that would also protect the employer’s religious beliefs. The court’s analysis is reflective of the Supreme Court’s May 16, 2016 per curiam decision in Little Sisters of the Poor Home for the Aged v. Burwell, which involved the Affordable Care Act’s birth control mandate. The district court explained: “If the compelling interest is truly in eliminating gender stereotypes, the Court fails to see why the EEOC couldn’t propose a gender-neutral dress code as a reasonable accommodation that would be a less restrictive means of furthering that goal under the facts presented here. But the EEOC has not even discussed such an option, maintaining that [the employee] must be allowed to wear a skirt-suit in order to express [the employee]’s gender identity. If the compelling governmental interest is truly in removing or eliminating gender stereotypes in the workplace in terms of clothing (e., making gender “irrelevant”), the EEOC’s chosen manner of enforcement in this action does not accomplish that goal.”
I’m not sure the solution the court posited would solve the problem, unless the gender-neutral dress code banned all employees from wearing professional, conservative dresses and skirts. (I’ll leave it to someone else to opine on whether such a ban might be deemed discriminatory toward women.) Otherwise, if a female employee other than the employee at the heart of the litigation were to be allowed to wear a dress or skirt, the employer’s religious objection would still be problematic.
And what about shirts and blouses? Men’s shirts have their buttons on the right side whereas women’s blouses have their buttons on the left side, apparently because of horses, babies, and Napoleon. Would this subtle, but obvious visual cue cause the employer religion-based emotional distress? Based on the deposition testimony the court quoted, I don’t see how the employer could say that would be okay.
- Finally, the court observed that while RFRA is a possible defense in lawsuits brought by the EEOC, in at least the Sixth and Seventh Circuits RFRA is not available as a defense in Title VII cases brought by employees against their employers.
I hope subsequent cases, and perhaps the Sixth Circuit on appeal, will address the issue of whether the RFRA defense in cases such as this one must give way to the principle set forth in the first sentence of the Supreme Court’s Obergefell opinion: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.” (emphasis added)
I’ll close by noting that it is unfortunate that the EEOC has failed to embrace the DOJ’s position in the pending Blatt v. Cabela’s Retail litigation, which challenges the constitutionality of the ADA’s exclusion of gender identity disorders (GID) not resulting from a physical impairment. In November 2015, the DOJ filed its Second Statement of Interest (SOI), in which it argued, as I do in Chapter 16, that “[i]n light of the evolving scientific evidence suggesting that gender dysphoria may have a physical basis, along with the remedial nature of the ADA and the relevant statutory and regulatory provisions directing that the terms ‘disability’ and ‘physical impairment’ be read broadly, the GID Exclusion should be construed narrowly such that gender dysphoria falls outside its scope.” (The SOI is discussed further on this blog here.)
On at least two occasions, the EEOC has declined to express support for the DOJ’s position in Blatt. See, e.g., EEOC Won't Argue Transgender Bias Violates Disability Law, 34 Daily Labor Report B-1 (Feb. 22, 2016) (“The [EEOC] isn't prepared to join the [DOJ] in saying that employment discrimination based on transgender status might violate the [ADA], General Counsel David Lopez told Bloomberg BNA.”); Transgender Bias Claims Under ADA Not Uncommon, 150 Daily Labor Report C-2 (Aug. 4, 2016) (district director of the EEOC’s Charlotte District Office stated that “’[t]he EEOC is not there yet, so we have not issued any decision or guidance on discrimination based on transgender status or gender identity under the ADA’”).
Perhaps if the EEOC would embrace the modern understanding of biological sex, it might also make the argument that Robyn Gigl and I set forth in Chapter 14 (Title VII) of the GISO treatise: “[T]he evolving medical understanding of the mosaic, nonbinary nature of sex, coupled with the social reality that gender diversity/nonconformity is here to stay, likely will require courts eventually to hold that discrimination because of sex is not merely discrimination against females when compared to males, or vice versa, but rather [also includes] discrimination against one representation of gender as compared to other representations of gender on a gender continuum—similar to the way claims of color discrimination can be established based on differences in skin tone among individuals from the same race or ancestry.”