Are transgendered or transsexual individuals protected from discrimination in employment under the anti-discrimination provisions of Title VII? The simple answer? Yes and no.
In dealing with Transsexual or Transgender Plaintiffs, the focus should be not on gender but on sex, and the perception of a person’s sex. Although the 10th Circuit has held that harassment based upon sexual orientation or sexuality is not actionable, this author can find no binding precedent in Oklahoma stating that claims based upon transsexualism or transgender is not actionable. District Courts in the 10th Circuit, however, have held that transsexualism is not a protected trait upon which discrimination claims can be maintained. See James v. Ranch Mart Hardware, Inc., 881 F.Supp. 478 (D.Kan.1995).
More recently, Etsitty v. Utah Transit Auth., 2005 U.S. Dist. LEXIS 12634, 11-14 (D. Utah, 2005) stated the following:
The Sixth Circuit, in two recent cases, has applied the Price Waterhouse rationale to transsexuals, and has concluded that Ulane and its progeny are no longer good law. In Smith v. City of Salem, 378 F.3d 566 (2004), a firefighter began treatment for his Gender Identity Disorder. When he began “expressing a more feminine appearance” at work, as prescribed by his doctors, his co-workers began commenting that his appearance and mannerisms were not masculine enough. The City of Salem had Smith take three separate psychological exams and later suspended him. The Sixth Circuit upheld Smith’s claim of gender discrimination, stating, “Discrimination against a plaintiff who is transsexual – and therefore fails to act and/or identify with his or her gender – is no different from the discrimination directed against Ann Hopkins in Price Waterhouse, who, in sex-stereotypical terms, did not act like a woman.”
This court disagrees. There is a huge difference between a woman who does not behave as femininely as her employer thinks she should, and a man who is attempting to change his sex and appearance to be a woman. Such drastic action cannot be fairly characterized as a mere failure to conform to stereotypes. An authoritative treatise on Gender Identity Disorder states the following:
Gender Identity Disorder can be distinguished from simple nonconformity to stereotypical sex role behavior by the extent and pervasiveness of the cross-gender wishes, interests, and activities. This disorder is not meant to describe a child’s nonconformity to stereotypic sex-role behavior as, for example, in “tomboyishness” in girls or “Sissy’s” behavior in boys. Rather, it represents a profound disturbance of the individual’s sense of identity with regard to maleness or femaleness.
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 564 (4th ed. 1994).
Clearly, the medical community does not equate transsexualism with a mere failure to conform to stereotypes.
It should also be noted that courts have continued, even after Price Waterhouse, to follow the narrow Ulane approach that the term “sex” in Title VII refers to biological sex and nothing more. “Long after Price Waterhouse was decided, courts have continued to hold that discrimination on the basis of sexual preference or orientation is not discrimination based on a person’s ‘sex.'” Oiler, 2002 U.S. Dist. LEXIS 17417, [WL] at *5 n. 59 (collecting cases). In Spearman v. Ford Motor Co., 231 F.3d 1080 (7th Cir. 2000), also decided after Price Waterhouse, the Seventh Circuit followed the Ulane court’s reasoning that “Congress intended the term ‘sex’ to mean ‘biological male or biological female,’ and not one’s sexuality or sexual orientation. ” The court went on to state that “harassment based solely upon a person’s sexual preference or orientation (and not on one’s sex) is not an unlawful employment practice under Title VII. Id. at 1084.
One case, while not precedential, appears to be so well reasoned that it should be discussed here. Enriquez v. West Jersey Health Systems, et al., 342 N.J. Super. 504 (case attached to materials), dealt with a transsexual physician who after being hired began the process of “transitioning,” and stated the following:
A generation ago, when Justice Handler served in the Appellate Division, he found that “the evidence and authority which we have examined, however, show that a person’s sex or sexuality embraces an individual’s gender, that is, one’s self-image, the deep psychological or emotional sense of sexual identity and character.” M.T. v. J.T., 140 N.J. Super. 77, 86, 355 A.2d 204, 209 (App. Div.), certif. denied, 71 N.J. 345, 364 A.2d 1076 (1976). We agree with Justice Handler that “sex” embraces an “individual’s gender,” and is broader than anatomical sex. “Sex is comprised of more than a person’s genitalia at birth.” Flynn, supra, 101 Colum. L. Rev. at 415. The word “sex” as used in the LAD should be interpreted to include gender, protecting from discrimination on the basis of sex or gender.
The New Jersey Court upheld Plaintiff’s claims under the state anti-discrimination statutes as well as held that “gender dysphoria” could be a handicap. It should be noted that the state’s anti-discrimination statutes used the term “sex” as opposed to gender, as does 25 O.S. 1302. Therefore, another approach to consider would be a state law claim for handicap discrimination.
It appears as though the courts are following the slow progression of society. While they are reluctant to acknowledge protection for sexual orientation, the law has moved beyond the concepts of traditional male and female roles. This area will keep developing as new dynamics develop in the workplace and lines between gender and sex continue to blur.