Gender,
Sexuality, and the Law: Trans-Sex Discrimination
Harper Jean Tobin
Contributing Writer
Welcome to a new, and hopefully regular feature, which will discuss
current developments in gender, sexuality and the law. These areas of law deal
with our most personal experiences, choices, and aspects of self, yet are also
subjects of considerable public controversy. What should be the boundaries of
government regulation? Moreover, what is the proper role of the courts in
addressing controversial points of law?
Over the
summer, an important development took place right here in Ohio in the area of
sex discrimination law. It had its beginnings in 2001, when Salem, OH
firefighter Jimmie L. Smith was suspended from work. Smith, who was born and
raised male, identified as a transsexual woman and planned to undergo gender
transition in accordance with her physician's recommendations.
Transsexualism,
where a person has a gender identity "opposite" their birth sex and
generally undergoes a permanent gender transition, is not to be confused with cross-dressing
or drag performance. Though still presenting as male at the time, I employ
female pronouns for Ms. Smith in keeping with her stated female identity and
intention to transition.
Despite having
worked for the city of Salem for seven years without incident, Smith began to
experience harassment from her coworkers about her increasingly "unmasculine" mannerisms and appearance. She approached
her supervisor to report the harassment, and to inform him of her plans for
transitioning -- and soon found herself suspended from work. She also was
warned by a sympathetic higher-up of a plan to create a pretext for firing her.
Smith brought a federal suit claiming sex discrimination.
We all know
that Title VII of the Civil Rights Act makes it illegal to discriminate against
employees on the basis of sex. Until now, courts have declined to interpret
that law as a prohibition of discrimination against employees because they are
transsexual, holding that "Congress had a narrow view of sex in mind."
Such discrimination is incredibly widespread, but only a small (though growing)
portion of the nation is covered by laws specifically prohibiting it. The city
of Toledo is the only Ohio jurisdiction with such a law.
The District
Court dismissed the suit, holding that transsexuals are not protected under
Title VII. On appeal, however, the Circuit Court reversed the decision, citing
a 1989 case called Price Waterhouse V. Hopkins. In that case the U.S.
Supreme Court held that discrimination based on sex stereotyping -- that is,
based on an individual’s non-conformity to socially expected behaviors for
their (birth) sex -- falls under Title VII. Applying the “sex stereotyping”
rule, the Court declared that one cannot “superimpose classifications such as ‘transsexual’
on a plaintiff, and then legitimize discrimination based on the plaintiff’s
gender non-conformity by formalizing the non-conformity into an ostensibly
unprotected classification.”
This decision,
which was issued in June, caused a flurry of notices in publications for
employment lawyers and human resource directors, warning them not to fall afoul
of this new statement of law. Until recently, many employers felt free to
discriminate more or less openly against transsexual
workers. But now, at least in the Sixth Circuit (and, of course, pending the
city of Salem’s inevitable petition to the Supreme Court), this is clearly
illegal.
An amended
opinion issued in early August does little to change this situation. The
amended opinion omitted the dictum that “even if Smith had alleged
discrimination based only on his [sic] self-identification as a
transsexual - as opposed to his [sic] specific appearance and behavior -
this claim too is actionable pursuant to Title VII,” and indeed is “the essence
of sex stereotyping.”
Given the main
ruling, this logic would only be relevant where a transsexual employee had no
plans for gender transition and no gender non-conforming behavior but was fired
simply for their internal sense of gender identity, which is a rare circumstance.
Does this
ruling mean that anti-gay discrimination also falls under Title VII? The short
answer: not necessarily. A gay man fired for being a "sissy" would
likely be entitled to protection. It could further be argued that firing a
female employee for dating a woman, but not penalizing male employees for
dating women, could be considered sex discrimination based on stereotyping.
Specifically, the stereotype would be that "proper" women are only
attracted to men.
Still, the
current Supreme Court would probably see such an interpretation as overly
broad, and tantamount to legislating from the bench. Given the current national
furor over “activist judges,” they might just be strung up from lampposts.
Speaking
of which, join me next time for a discussion of legislative efforts to curb
controversial court rulings on same-sex marriage.