Strange bedfellows? Sex, religion, and transgender identity under title VII

Northwestern University Law Review

Volumn 104, Issue 3, 2010, Pages 1147-1178

  Landsittel, Sue ^a  

^a NORTHWESTERN UNIVERSITY SCHOOL OF LAW   (United States)

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EID: 78751654274     PISSN: 00293571     EISSN: None     Source Type: Journal    
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References (265)

1. See Schroer v. Billington (Schroer I), 424 F. Supp. 2d 203, 205 (D.D.C. 2006).
2. Schroer v. Billington (Schroer I), 424 F. Supp. 2d 203, 205 (D.D.C. 2006) at 205-06.
3. Schroer was a graduate of Army Ranger School and National War School, and had been awarded the Defense Superior Service Award, four Meritorious Service Medals, and two Expeditionary Medals for combat operations. An Examination of Discrimination Against Transgender Americans in the Workplace: Hearing Before the H. Subcomm. on Health, Employment, Labor and Pensions, 110th Cong. 18 (2008) [hereinafter Transgender Discrimination Hearing] (statement of Diane J. Schroer, Colonel, U.S. Army, Ret.).
4. Schroer v. Billington (Schroer III), 577 F. Supp. 2d 293, 296 (D.D.C. 2008). The Library's hiring manager told Schroer that his skills and experience made him "significantly better than the other candidates."
5. Schroer v. Billington (Schroer III), 577 F. Supp. 2d 293, 296 (D.D.C. 2008)
6. Schroer v. Billington (Schroer III), 577 F. Supp. 2d 293, 296 (D.D.C. 2008)
7. Schroer v. Billington (Schroer III), 577 F. Supp. 2d 293, 296 (D.D.C. 2008) The hiring manager initially reacted by saying, "Why in the world would you ever want to do that?" After further conversation, she told Schroer that he had given her "a lot to think about."
8. Schroer v. Billington (Schroer III), 577 F. Supp. 2d 293, 296 (D.D.C. 2008) at 296-97.
9. Schroer v. Billington (Schroer III), 577 F. Supp. 2d 293, 296 (D.D.C. 2008) at 299. In Schroer's words, he went from "hero to zero in twenty-four hours."
10. An Examination of Discrimination Against Transgender Americans in the Workplace: Hearing Before the H. Subcomm. on Health, Employment, Labor and Pensions, 110th Cong. 18 (2008), at 14.
11. Schroer I, 424 F. Supp. 2d 203, 206-07 (D.D.C. 2006).
12. Schroer I, 424 F. Supp. 2d 203, 206-07 (D.D.C. 2006) at 205 (denying motion to dismiss);
13. Schroer v. Billington (Schroer II), 525 F. Supp. 2d 58, 65 (D.D.C. 2007) (denying a motion to dismiss an amended complaint);
14. Schroer III, 577 F. Supp. 2d at 300 (finding for Schroer after a bench trial).
15. Schroer III, 577 F. Supp. 2d at 308.
16. See Ulane v. E. Airlines, Inc., 742 F.2d 1081, 1085 (7th Cir. 1984) ("The phrase in Title VII prohibiting discrimination based on sex, in its plain meaning, implies that it is unlawful to discriminate against women because they are women and against men because they are men. The words of Title VII do not outlaw discrimination against ... a person born with a male body who believes himself to be female ....").
17. See Smith v. City of Salem, 378 F.3d 566, 572 (6th Cir. 2004) ("Having alleged that his failure to conform to sex stereotypes concerning how a man should look and behave was the driving force behind Defendants' actions, Smith has sufficiently pleaded claims of sex stereotyping and gender discrimination.");
18. Barnes v. City of Cincinnati, 401 F.3d 729, 737 (6th Cir. 2005) ("Following the holding in Smith, Barnes established that he was a member of a protected class by alleging discrimination against the City for his failure to conform to sex stereotypes.").
19. Schroer III, 577 F. Supp. 2d at 305 ("I do not think that it matters for purposes of Title VII liability whether the Library withdrew its offer of employment because it perceived Schroer to be an insufficiently masculine man, an insufficiently feminine woman, or an inherently gender-nonconforming transsexual.").
20. Schroer III, 577 F. Supp. 2d at 306.
21. Schroer III, 577 F. Supp. 2d at 306-07.
22. Elizabeth Glazer and Zachary Kramer maintain that Schroer's religious analogy demonstrates the concept of protection for "transitional identity," or "identity that has aspects of one or more extant identities, but which is inchoate, in that the identity does not express fully any of those extant identities." Elizabeth M. Glazer & Zachary A. Kramer, Transitional Discrimination, 18 TEMP. POL. & CIV. RTS. L. REV. 651, 664 (2009).
23. Similarly, Camille Hébert challenges the idea that a protected identity must be manifested in a particular narrow way by pointing out that racial and national origin discrimination prohibitions do not require a plaintiff to demonstrate racial or ethnic purity. See L. Camille Hébert, Transforming Transsexual and Transgender Rights, 15 WM. & MARY J. WOMEN & L. 535, 586-89 (2009).
24. Gender identity is defined as a person's internal sense of maleness or femaleness. See discussion infra Part I.
25. For example, the conservative Traditional Values Coalition released a statement saying that transgender nondiscrimination protections would "elevate[] what a person 'thinks' he is over what he actually is," and called Simon Aronoff, Deputy Director of the National Center for Transgender Equality, a "woman who thinks she's a man." The Employment Non-Discrimination Act of 2007: Hearing on H.R. 2015 Before the H. Subcomm. on Health, Employment, Labor and Pensions, 110th Cong. 117, 119 (2007) [hereinafter ENDA Hearing] (statement of Traditional Values Coalition) (emphasis original).
26. See discussion infra Part II.
27. See discussion infra Part I.
28. See discussion infra Part IV.
29. Paisley Currah, Richard M. Juang & Shannon Price Minter, Introduction to TRANSGENDER RIGHTS xiii, xiv (Paisley Currah et al. eds., 2006);
30. see Paisley Currah, Gender Pluralisms Under the Transgender Umbrella, in TRANSGENDER RIGHTS, Schroer v. Billington (Schroer III), 577 F. Supp. 2d 293, 296 (D.D.C. 2008), 4 [hereinafter Currah, Gender Pluralisms] (describing early development of "transgender" as a label).
31. See Julie Greenberg, The Roads Less Traveled: The Problem with Binary Sex Categories, in TRANSGENDER RIGHTS, xiii, xiv (Paisley Currah et al. eds., 2006), at 51, 51. Biological sex characteristics can be ambiguous or incongruent, as is the case with intersexed individuals.
32. Julie Greenberg, The Roads Less Traveled: The Problem with Binary Sex Categories, in TRANSGENDER RIGHTS, xiii, xiv (Paisley Currah et al. eds., 2006) For an excellent summary of the range of natural variation within and among these characteristics,
33. see Julie Greenberg, The Roads Less Traveled: The Problem with Binary Sex Categories, in TRANSGENDER RIGHTS, xiii, xiv (Paisley Currah et al. eds., 2006) at 56-63.
34. Jamison Green, Introduction to PAISLEY CURRAH & SHANNON MINTER, NAT'L CTR. FOR LESBIAN RIGHTS, TRANSGENDER EQUALITY: A HANDBOOK FOR ACTIVISTS AND POLICYMAKERS 3 (2000), available at http://www.thetaskforce.org/downloads/reports/reports/TransgenderEqualit y.pdf.
35. See L. Camille Hébert, Transforming Transsexual and Transgender Rights, 15 WM. & MARY J. WOMEN & L. 535, 586-89 (2009), at 583-84.
36. See L. Camille Hébert, Transforming Transsexual and Transgender Rights, 15 WM. & MARY J. WOMEN & L. 535, 586-89 (2009) at 584.
37. See Julie Greenberg, The Roads Less Traveled: The Problem with Binary Sex Categories, in TRANSGENDER RIGHTS, xiii, xiv (Paisley Currah et al. eds., 2006), at 61.
38. See JUDITH BUTLER, GENDER TROUBLE: FEMINISM AND THE SUBVERSION OF IDENTITY 33 (1990) ("There is no gender identity behind the expressions of gender; that identity is performatively constituted by the very 'expressions' that are said to be its results.").
39. See Jennifer L. Levi, Clothes Don't Make the Man (or Woman), But Gender Identity Might, 15 COLUM. J. GENDER & L. 90, 111-12 (2006). Accordingly, some transgender advocates "reverse the traditional idea that gender is an expression of sexed bodies and instead identify gender identity as the presocial fixed category" and bodily sex as the characteristic that can be more easily altered.
40. Paisley Currah, Gender Pluralisms Under the Transgender Umbrella, in TRANSGENDER RIGHTS, Schroer v. Billington (Schroer III), 577 F. Supp. 2d 293, 296 (D.D.C. 2008), at 18.
41. Jamison Green, Introduction to PAISLEY CURRAH & SHANNON MINTER, NAT'L CTR. FOR LESBIAN RIGHTS, TRANSGENDER EQUALITY: A HANDBOOK FOR ACTIVISTS AND POLICYMAKERS 3 (2000), at 3. Other common transgender identifiers include "FTM" (female-to-male), "MTF" (male-to-female), "transman," "transwoman," "trans," "butch," "femme," and "gender-queer."
42. See Dylan Vade, Expanding Gender and Expanding the Law: Toward a Social and Legal Conceptualization of Gender that Is More Inclusive of Transgender People, 11 MICH. J. GENDER & L. 253, 266 (2005).
43. Phyllis Randolph Frye & Katrina C. Rose, Responsible Representation of Your First Transgender Client, 66 TEX. B.J. 558, 558-59 (2003).
44. Dean Spade, Documenting Gender, 59 HASTINGS L.J. 731, 754-55 (2008).
45. Dean Spade, Documenting Gender, 59 HASTINGS L.J. 731, 754-55 (2008);
46. Dylan Vade, Expanding Gender and Expanding the Law: Toward a Social and Legal Conceptualization of Gender that Is More Inclusive of Transgender People, 11 MICH. J. GENDER & L. 253, 266 (2005), at 268-69.
47. Dean Spade, Documenting Gender, 59 HASTINGS L.J. 731, 754-55 (2008), at 754.
48. Dean Spade, Documenting Gender, 59 HASTINGS L.J. 731, 754-55 (2008) at 755.
49. See Paisley Currah, Gender Pluralisms Under the Transgender Umbrella, in TRANSGENDER RIGHTS, Schroer v. Billington (Schroer III), 577 F. Supp. 2d 293, 296 (D.D.C. 2008), at 4. For an illuminating discussion of the range of transgender identities and experiences,
50. see Dylan Vade, Expanding Gender and Expanding the Law: Toward a Social and Legal Conceptualization of Gender that Is More Inclusive of Transgender People, 11 MICH. J. GENDER & L. 253, 266 (2005), at 264-73.
51. Paisley Currah, Richard M. Juang & Shannon Price Minter, Introduction to TRANSGENDER RIGHTS xiii, xiv (Paisley Currah et al. eds., 2006), at xv. The number of people who share this investment is growing. San Francisco's annual "Trans March," billed as the largest existing transgender event, has reportedly grown dramatically since the first march occurred in 2004, and expected an estimated 10,000 participants in 2009.
52. See Trans March, http://www.transmarch.org (last visited Oct. 16, 2010);
53. Wikipedia, "Trans March," http://en.wikipedia.org/wiki/Trans_March (last visited Oct. 16, 2010).
54. See Willy Wilkinson, Public Health Gains in the Transgender Community in San Francisco: Grassroots Organizing and Community-Based Research, in TRANSGENDER RIGHTS, xiii, xiv (Paisley Currah et al. eds., 2006), at 192, 193 ("[T]rans people are often mistreated while walking down the street and denied service in public accommodations such as restaurants, retail establishments and bathrooms.").
55. See Kari E. Hong, Categorical Exclusions: Exploring Legal Responses to Health Care Discrimination Against Transsexuals, 11 COLUM. J. GENDER & L. 88, 96-99 (2002) (describing discrimination by private health insurers and health care providers against transgender patients).
56. See Dean Spade, Compliance is Gendered: Struggling for Gender Self-Determination in a Hostile Economy, in TRANSGENDER RIGHTS, xiii, xiv (Paisley Currah et al. eds., 2006), at 217, 219 ("[H]arassment and violence against trans and gender nonconforming students is rampant in schools, and many drop out before finishing or are kicked out. Many trans people also do not pursue higher education because of fears about having to apply to schools and having their paperwork reveal their old name and birth sex because they have not been able to change these on their documents.");
57. see also Currah, Gender Pluralisms, Under the Transgender Umbrella, in TRANSGENDER RIGHTS, Schroer v. Billington (Schroer III), 577 F. Supp. 2d 293, 296 (D.D.C. 2008), at 7 (describing discriminatory treatment by middle school officials that eventually led "Pat Doe," a gender nonconforming student, to stop attending school).
58. See generally Taylor Flynn, The Ties That (Don't) Bind: Transgender Family Law and the Unmaking of Families, in TRANSGENDER RIGHTS, xiii, xiv (Paisley Currah et al. eds., 2006), at 32 (discussing how the law can destroy marital and parental relationships when a spouse or married parent transitions). Courts have invalidated marriages in which one partner is transgender by defining the transgender partner's legal sex as birth sex, which renders the marriage same-sex and therefore illegal in most jurisdictions (notably, however, a prominent federal constitutional challenge against California's state constitutional prohibition on same-sex marriage, Perry v. Schwarzenegger, is currently pending in the Ninth Circuit). The parental rights of the transgender parent may be terminated as a result.
59. See Taylor Flynn, The Ties That (Don't) Bind: Transgender Family Law and the Unmaking of Families, in TRANSGENDER RIGHTS, xiii, xiv (Paisley Currah et al. eds., 2006) at 39-41, 42-45.
60. Police harassment and profiling of transgender people has been described as "widespread." Dean Spade, Documenting Gender, 59 HASTINGS L.J. 731, 754-55 (2008), at 757. "The cultural stereotype that transgender women are prostitutes" may lead to police profiling, which in turn may contribute to an overrepresentation of transgender people in the criminal justice system. In prison, transgender people are typically housed according to their birth sex, and face sexual assault and other violence.
61. Dean Spade, Documenting Gender, 59 HASTINGS L.J. 731, 754-55 (2008) at 757-58.
62. M.V. Lee Badgett et al., Bias in the Workplace: Consistent Evidence of Sexual Orientation and Gender Identity Discrimination 1998-2008, 84 CHI.-KENT L. REV. 559, 560 (2009).
63. "Trans people are often the targets of hate violence" and "face daily harassment and assault on the streets, at work, and in their homes." Willy Wilkinson, Public Health Gains in the Transgender Community in San Francisco: Grassroots Organizing and Community-Based Research, in TRANSGENDER RIGHTS, xiii, xiv (Paisley Currah et al. eds., 2006), at 193.
64. According to statistics compiled by the National Coalition of Anti-Violence Programs, sixteen percent of reported anti-LGBT bias-motivated incidents in 2007 were anti-transgender. NAT'L COAL. OF ANTI-VIOLENCE PROGRAMS, ANTI-LESBIAN, GAY, BISEXUAL, AND TRANSGENDER VIOLENCE IN 2007, at 4 (2008), available at http://www.ncavp.org/common/document_files/Reports/2007HVReportFINAL.pdf .
65. Victims of anti-transgender-motivated murders are memorialized at websites such as REMEMBERING OUR DEAD, http://www.rememberingourdead.org (last visited Aug. 9, 2010),
66. and INTERNATIONAL TRANSGENDER DAY OF REMEMBRANCE, http://www.transgenderdor.org/ (last visited Aug. 9, 2010).
67. See Dean Spade, Trans Formation: Three Myths Regarding Transgender Identity Have Led to Conflicting Laws and Policies that Adversely Affect Transgender People, L.A. LAWYER, Oct. 2008, at 36 (explaining how gender classification policies based on "the myth that all people should be regarded solely through the lens of their birth gender" have pervasive negative impacts on transgender lives).
68. Dean Spade, Documenting Gender, 59 HASTINGS L.J. 731, 754-55 (2008), at 752. Many transgender people have difficulty changing official documents because evidence of sex reassignment surgery or other medical intervention, which not all trans-gender people are able or willing to access, is often required.
69. See Dean Spade, Documenting Gender, 59 HASTINGS L.J. 731, 754-55 (2008) at 760-75 (describing the requirements for changing gender markers on Social Security documents, birth certificates, driver's licenses, and passports).
70. See Kylar W. Broadus, The Evolution of Employment Discrimination Protections for Transgender People, in TRANSGENDER RIGHTS, xiii, xiv (Paisley Currah et al. eds., 2006), at 93, 93. Broadus lost a longtime job as a claims adjuster for State Farm Insurance after transitioning from female to male. His sex discrimination claim was denied.
71. Kylar W. Broadus, The Evolution of Employment Discrimination Protections for Transgender People, in TRANSGENDER RIGHTS, xiii, xiv (Paisley Currah et al. eds., 2006) at 94.
72. M.V. Lee Badgett et al., Bias in the Workplace: Consistent Evidence of Sexual Orientation and Gender Identity Discrimination 1998-2008, 84 CHI.-KENT L. REV. 559, 560 (2009), at 574. Note that San Francisco is presumed to be "one of the most tolerant cities for transgender people in the United States."
73. M.V. Lee Badgett et al., Bias in the Workplace: Consistent Evidence of Sexual Orientation and Gender Identity Discrimination 1998-2008, 84 CHI.-KENT L. REV. 559, 560 (2009) at 575.
74. See Dean Spade, Documenting Gender, 59 HASTINGS L.J. 731, 754-55 (2008), at 752-53, 757.
75. See Dean Spade, Compliance is Gendered: Struggling for Gender Self-Determination in a Hostile Economy, in TRANSGENDER RIGHTS, xiii, xiv (Paisley Currah et al. eds., 2006), at 227.
76. Jamison Green, Introduction to PAISLEY CURRAH & SHANNON MINTER, NAT'L CTR. FOR LESBIAN RIGHTS, TRANSGENDER EQUALITY: A HANDBOOK FOR ACTIVISTS AND POLICYMAKERS 3 (2000), at 12.
77. Various versions of ENDA, which originally sought to outlaw discrimination based on sexual orientation, have been introduced in nearly every Congress since 1979. See H.R. REP. NO. 110-406, pt. 1, at 2-7 (2007). In 2007, gender identity nondiscrimination provisions were also included in ENDA for the first time.
78. H.R. REP. NO. 110-406, pt. 1, at 2-7 (2007) at 46. However, bill sponsor Barney Frank later made a controversial decision to drop the gender identity provisions because the bill had a better chance of passage without them.
79. See Shawn Zeller, Frank Fights Old Allies After Axing Transgender Provision, CQ WEEKLY, Oct. 17, 2007, at 2978.
80. The sexual-orientation-only bill passed the House, but was never voted on by the Senate. H.R. 3685: Employment Non-Discrimination Act of 2007, GOVTRACK.US, http://www.govtrack.us/congress/bill.xpd?bill=h110-3685 (last visited Aug. 9, 2010). So far in the 111th Congress, ENDA bills that include both sexual orientation and gender identity nondiscrimination provisions have been introduced in both the House and the Senate.
81. H.R. 3017: Employment Non-Discrimination Act of 2009, GOVTRACK.us, http://www.govtrack.us/congress/bill.xpd?bill=h111-3017 (last visited Aug. 9, 2010);
82. S. 1584: Employment Non-Discrimination Act of 2009, GOVTRACK.us, http://www.govtrack.us/congress/bill.xpd?bill=s111-1584 (last visited Aug. 9, 2010).
83. State and local laws may also provide recourse: at least thirteen states, the District of Columbia, and 108 counties and municipalities have employment nondiscrimination laws that include explicit protections for transgender people. NAT'L GAY & LESBIAN TASK FORCE, JURISDICTIONS WITH EXPLICITLY TRANSGENDER-INCLUSIVE NON-DISCRIMINATION LAWS (2008), available at http://www.thetaskforce.org/downloads/reports/fact_sheets/all_jurisdicti ons_w_pop_8_08.pdf. The thirteen states are: Minnesota, Rhode Island, New Mexico, California, Maine, Illinois, Washington, New Jersey, Vermont, Iowa, Hawaii, Oregon, and Colorado. As of 2008, sixty-one percent of the national population was not covered by such a law.
84. NAT'L GAY & LESBIAN TASK FORCE, JURISDICTIONS WITH EXPLICITLY TRANSGENDER-INCLUSIVE NON-DISCRIMINATION LAWS (2008), available at http://www.thetaskforce.org/downloads/reports/fact_sheets/all_jurisdicti ons_w_pop_8_08.pdf.
85. 42 U.S.C. § 2000e-2(a)(1) (2006).
86. See Etsitty v. Utah Transit Auth., 502 F.3d 1215, 1221 (10th Cir. 2007).
87. See Barnes v. City of Cincinnati, 401 F.3d 729, 737 (6th Cir. 2004);
88. Smith v. City of Salem, 378 F.3d 566, 575 (6th Cir. 2004).
89. See Schroer III, 577 F. Supp. 2d 293, 308 (D.D.C. 2008).
90. Ulane v. E. Airlines, 742 F.2d 1081 (7th Cir. 1984).
91. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
92. Ulane, 742 F.2d. 1081.
93. 42 U.S.C. § 2000e-2(a)(1) (2006).
94. Ulane, 742 F.2d. at 1082-83.
95. Ulane, 742 F.2d. at 1084. The district court held that "the term, 'sex,' as used in any scientific sense and as used in [Title VII] can be and should be reasonably interpreted to include among its denotations the question of sexual identity and that, therefore, transsexuals are protected by Title VII."
96. Ulane v. E. Airlines, Inc., 581 F. Supp. 821, 825 (N.D. Ill. 1983).
97. Ulane, 742 F.2d. at 1085. The court noted that the inclusion of sex discrimination provisions in Title VII was introduced as a last-minute floor amendment by a congressman "seeking to scuttle adoption of the Civil Rights Act. The ploy failed and sex discrimination was abruptly added to the statute's prohibition against race discrimination."
98. Ulane, 742 F.2d. at 1085
99. See Ulane, 742 F.2d. at 1087 ("We agree ... that if the term 'sex' as it is used in Title VI is to mean more than biological male or biological female, the new definition must come from Congress.");
100. Ulane, 742 F.2d. at 1083 n.6 ("Biologically, sex is defined by chromosomes, internal and external genitalia, hormones, and gonads. Chromosomal sex cannot be changed, and a uterus and ovaries cannot be constructed. This leads some in the medical profession to conclude that hormone treatments and sex reassignment surgery ... cannot change the individual's innate sex." (citations omitted)).
101. Ulane, 742 F.2d. at 1085.
102. Ulane, 742 F.2d. at 1085
103. Ulane, 742 F.2d. at 1087. According to the court, Ulane could not actually be a female because sex reassignment surgery and hormonal therapy would not change her chromosomes or create functioning reproductive organs.
104. See Ulane, 742 F.2d. at 1083 & n.6.
105. Ulane, 742 F.2d. at 1087.
106. Ulane, 742 F.2d. at 1087.
107. See Price Waterhouse v. Hopkins, 490 U.S. 228, 250 (1989).
108. Price Waterhouse v. Hopkins, 490 U.S. 228, 250 (1989) at 231-32.
109. Price Waterhouse v. Hopkins, 490 U.S. 228, 250 (1989) at 235. Another partner advised her to take "a course at charm school."
110. Price Waterhouse v. Hopkins, 490 U.S. 228, 250 (1989) at 235
111. Price Waterhouse v. Hopkins, 490 U.S. 228, 250 (1989) at 235 (internal quotation marks and citation omitted).
112. Price Waterhouse v. Hopkins, 490 U.S. 228, 250 (1989) at 237-52.
113. Price Waterhouse v. Hopkins, 490 U.S. 228, 250 (1989) at 251 (internal quotation marks and citation omitted).
114. See WILLIAM N. ESKRIDGE, JR. & NAN D. HUNTER, SEXUALITY, GENDER, AND THE LAW 606 (2d ed. 2004) ("After [Price Waterhouse], it appears that two slightly different kinds of discrimination might be remedied by Title VII: Price Waterhouse passed over Hopkins either because some partners didn't think women were capable of doing the job, or because some partners were offended that this woman, however qualified, wasn't feminine enough for their tastes.").
115. Zachary A. Kramer, Heterosexuality and Title VII, 103 NW. U. L. REV. 205, 240 (2009) ("After Price Waterhouse, transgender employees began basing their claims not on their transgender status, but on their gender-nonconformity." (citation omitted)).
116. Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004). Shortly after Smith, in Barnes v. City of Cincinnati, the Sixth Circuit protected another male-to-female transsexual, Philecia Barnes, under the same theory.
117. See Barnes v. City of Cincinnati, 401 F.3d 729, 737 (6th Cir. 2004) ("Following the holding in Smith, Barnes established that he was a member of a protected class by alleging discrimination against the City for his failure to conform to sex stereotypes."). However, this Comment focuses on Smith as the precedent-setting case in the Circuit.
118. 502 F.3d 1215, 1221, 1224 (10th Cir. 2007).
119. 577 F. Supp. 2d 293, 306-08 (D.D.C. 2008).
120. Smith, 378 F.3d at 572.
121. Smith, 378 F.3d at 573.
122. Smith, 378 F.3d at 573 (citation omitted).
123. Smith, 378 F.3d at 572.
124. Smith, 378 F.3d at 574 (citation omitted).
125. See Zachary A. Kramer, Heterosexuality and Title VII, 103 NW. U. L. REV. 205, 240 (2009), at 216 ("Smith articulated a cognizable sex discrimination claim ... not because he was transgender, but because he was a man whose feminine gender expression did not correspond with stereotypical expectations of his sex." (citation omitted)).
126. Smith, 378 F.3d at 575.
127. See Elizabeth M. Glazer & Zachary A. Kramer, Transitional Discrimination, 18 TEMP. POL. & CIV. RTS. L. REV. 651, 664 (2009), at 666 ("One difficulty with the Smith case is that it reduces Smith's transgender identity to little more than a fashion choice to wear women's clothing.").
128. Smith, 378 F.3d at 574 (citation omitted).
129. See Etsitty v. Utah Transit Auth., 502 F.3d 1215 (10th Cir. 2007).
130. Etsitty v. Utah Transit Auth., 502 F.3d 1215 (10th Cir. 2007) at 1218-19.
131. Etsitty v. Utah Transit Auth., 502 F.3d 1215 (10th Cir. 2007) at 1218.
132. Etsitty v. Utah Transit Auth., 502 F.3d 1215 (10th Cir. 2007) at 1222 (citation omitted).
133. Etsitty v. Utah Transit Auth., 502 F.3d 1215 (10th Cir. 2007) at 1222
134. Etsitty v. Utah Transit Auth., 502 F.3d 1215 (10th Cir. 2007) at 1224.
135. Etsitty v. Utah Transit Auth., 502 F.3d 1215 (10th Cir. 2007) (citation omitted). The only rationale offered was bare and clearly result-oriented: "However far Price Waterhouse reaches, this court cannot conclude it requires employers to allow biological males to use women's restrooms."
136. Etsitty v. Utah Transit Auth., 502 F.3d 1215 (10th Cir. 2007)
137. Etsitty v. Utah Transit Auth., 502 F.3d 1215 (10th Cir. 2007)
138. 577 F. Supp. 2d 293, 308 (D.D.C. 2008).
139. 577 F. Supp. 2d 293, 308 (D.D.C. 2008) at 305.
140. 577 F. Supp. 2d 293, 308 (D.D.C. 2008) at 305.
141. 577 F. Supp. 2d 293, 308 (D.D.C. 2008) at 306.
142. 577 F. Supp. 2d 293, 308 (D.D.C. 2008) at 307.
143. 577 F. Supp. 2d 293, 308 (D.D.C. 2008) at 307.
144. 577 F. Supp. 2d 293, 308 (D.D.C. 2008) at 308.
145. 577 F. Supp. 2d 293, 308 (D.D.C. 2008) at 306.
146. "Gender Identity Disorder" is the formal diagnosis for a person who experiences significant "gender dysphoria," defined as "persistent discomfort about one's assigned sex or a sense of inappro-priateness in the gender role of that sex." AM. PSYCHIATRIC ASS'N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 532-33 (4th ed. 1994). Treatment for GID is typically undertaken in accordance with the Harry Benjamin "Standards of Care," guidelines originally conceived by, and now named after, an endocrinologist known for his pioneering studies of transsexuality begun in the 1940s.
147. See Dallas Denny, Transgender Communities of the United States in the Late Twentieth Century, in TRANSGENDER RIGHTS, xiii, xiv (Paisley Currah et al. eds., 2006), at 171, 175-76. The Standards of Care describe hormone therapy and sex-reassignment surgery options, and require psychotherapy and "Real Life Experience," living full-time in the gender of choice, before physical medical intervention.
148. See generally HARRY BENJAMIN, INT'L GENDER DYSPHORIA ASS'N, STANDARDS OF CARE FOR GENDER DYSPHORIA (6th ed. 2001) (providing background on GID and standards of care). However, the GID diagnosis has been criticized for pathologizing transgender people.
149. See, e.g., Judith Butler, Undiagnosing Gender, in TRANSGENDER RIGHTS, xiii, xiv (Paisley Currah et al. eds., 2006), at 274, 274-75 ("To be diagnosed with gender identity disorder is to be found, in some way, to be ill, sick, wrong, out of order, abnormal, and to suffer a certain stigmatization as a consequence of the diagnosis being given at all.").
150. It is important to realize that these two factors are not independent: they often act to reinforce each other. For example, a diagnosis of GID, which is usually a precondition for sex reassignment surgery, typically requires a longstanding identification with and aspiration toward a set of traits stereotypically associated with the opposite sex. Once GID has been diagnosed, medical intervention tends to focus on physical and behavioral actualization of many of these stereotypically gendered traits. See Franklin H. Romeo, Beyond a Medical Model: Advocating for a New Conception of Gender Identity in the Law, 36 COLUM. HUM. RTS. L. REV. 713, 731-32 (2005);
151. Dean Spade, Resisting Medicine, Re/Modeling Gender, 18 BERKELEY WOMEN'S L.J. 15, 24-26 (2003).
152. See, e.g., Willingham v. Macon Tel. Pub. Co., 507 F.2d 1084, 1091 (5th Cir. 1975) ("Equal employment opportunity may be secured only when employers are barred from discriminating against employees on the basis of immutable characteristics, such as race and national origin.");
153. Rogers v. Am. Airlines, 527 F. Supp. 229, 231 (S.D.N.Y. 1981) (holding that a policy that prohibited a black employee from wearing her hair in corn rows did not constitute racial discrimination because the policy "does not regulate on the basis of any immutable characteristic"). Some scholars argue that immutability "has been given an unnecessary and unintended prominence" in antidiscrimination law.
154. See, e.g., Camille Gear Rich, Performing Racial and Ethnic Identity: Discrimination by Proxy and the Future of Title VII, 79 N.Y.U. L. REV. 1134, 1220 (2004) (citation omitted).
155. See Camille Gear Rich, Performing Racial and Ethnic Identity: Discrimination by Proxy and the Future of Title VII, 79 N.Y.U. L. REV. 1134, 1220 (2004), at 1202-03 (noting that some courts "have concluded that Title VII protects only against 'status'-based discrimination and is not concerned with discrimination triggered by 'conduct'" and that "courts are conducting an inquiry into the status/conduct divide when they attempt to distinguish between the 'involuntary' attributes of a group and those which are 'voluntary,' or, alternatively, when they distinguish between the 'immutable' and 'mutable' characteristics of a protected class identity" (citations omitted)).
156. See H.R. REP. NO. 110-406, at 33 (2007).
157. ENDA Hearing, on H.R. 2015 Before the H. Subcomm. on Health, Employment, Labor and Pensions, 110th Cong. 117, 119 (2007), at 36 (statement of Lawrence Z. Lorber, Partner, Proskauer Rose, LLP).
158. ENDA Hearing, on H.R. 2015 Before the H. Subcomm. on Health, Employment, Labor and Pensions, 110th Cong. 117, 119 (2007) at 8 (statement of Rep. Tammy Baldwin).
159. ENDA Hearing, on H.R. 2015 Before the H. Subcomm. on Health, Employment, Labor and Pensions, 110th Cong. 117, 119 (2007) at 12 (statement of Rep. Barney Frank).
160. Kenji Yoshino, Covering, 111 Yale L.J. 769, 850 (2002). Assimilation in the workplace may be valued so highly because a homogenous workforce reduces transaction costs for employers.
161. See Devon W. Carbado & Mitu Gulati, The Law and Economics of Critical Race Theory, 112 Yale L.J. 1757, 1789-91 (2003)
162. Reviewing CROSSROADS, DIRECTIONS, AND A NEW CRITICAL RACE THEORY (Francisco Valdes, Jerome McCrystal Culp & Angela P. Harris eds., 2002).
163. Kenji Yoshino, Covering, 111 Yale L.J. 769, 850 (2002), at 890-92.
164. Such was the outcome in Rogers v. American Airlines, 527 F. Supp. 229, 231 (S.D.N.Y. 1981).
165. ENDA Hearing, on H.R. 2015 Before the H. Subcomm. on Health, Employment, Labor and Pensions, 110th Cong. 117, 119 (2007), at 76-77 (statement of the Traditional Values Coalition).
166. ENDA Hearing, on H.R. 2015 Before the H. Subcomm. on Health, Employment, Labor and Pensions, 110th Cong. 117, 119 (2007) at 102 (statement of Richard Land, President, Ethics and Religious Liberty Comm'n of the S. Baptist Convention).
167. 378 F.3d 566, 571-72 (6th Cir. 2004).
168. 378 F.3d 566, 571-72 (6th Cir. 2004) at 572.
169. 378 F.3d 566, 571-72 (6th Cir. 2004) at 567-68 (emphasis added) (citation omitted).
170. 378 F.3d 566, 571-72 (6th Cir. 2004) at 570 (emphasis added).
171. 378 F.3d 566, 571-72 (6th Cir. 2004) at 568.
172. 378 F.3d 566, 571-72 (6th Cir. 2004) at 568.
173. 378 F.3d 566, 571-72 (6th Cir. 2004) at 574.
174. 378 F.3d 566, 571-72 (6th Cir. 2004) at 568.
175. Schroer III, 577 F. Supp. 2d 293, 305-06 (D.D.C. 2008).
176. Schroer III, 577 F. Supp. 2d 293, 305-06 (D.D.C. 2008) at 295.
177. Schroer III, 577 F. Supp. 2d 293, 305-06 (D.D.C. 2008) at 295.
178. Schroer III, 577 F. Supp. 2d 293, 305-06 (D.D.C. 2008) at 295.
179. Schroer III, 577 F. Supp. 2d 293, 305-06 (D.D.C. 2008) at 296.
180. Schroer III, 577 F. Supp. 2d 293, 305-06 (D.D.C. 2008) at 296.
181. Schroer III, 577 F. Supp. 2d 293, 305-06 (D.D.C. 2008) at 306.
182. Schroer III, 577 F. Supp. 2d 293, 305-06 (D.D.C. 2008) at 299.
183. Schroer III, 577 F. Supp. 2d 293, 305-06 (D.D.C. 2008) at 299.
184. Schroer III, 577 F. Supp. 2d 293, 305-06 (D.D.C. 2008). at 299-300.
185. Schroer III, 577 F. Supp. 2d 293, 305-06 (D.D.C. 2008) at 296.
186. Schroer III, 577 F. Supp. 2d 293, 305-06 (D.D.C. 2008) at 305.
187. 502 F.3d 1215, 1219 (10th Cir. 2007).
188. 502 F.3d 1215, 1219 (10th Cir. 2007) at 1218.
189. 502 F.3d 1215, 1219 (10th Cir. 2007) at 1218.
190. 502 F.3d 1215, 1219 (10th Cir. 2007) at 1218.
191. 502 F.3d 1215, 1219 (10th Cir. 2007) at 1219.
192. 502 F.3d 1215, 1219 (10th Cir. 2007) at 1219.
193. 502 F.3d 1215, 1219 (10th Cir. 2007) at 1226.
194. 502 F.3d 1215, 1219 (10th Cir. 2007) at 1226.
195. 502 F.3d 1215, 1219 (10th Cir. 2007) at 1225 (internal quotation marks omitted).
196. 502 F.3d 1215, 1219 (10th Cir. 2007) at 1219.
197. 502 F.3d 1215, 1219 (10th Cir. 2007) at 1224, 1226-27. Etsitty argued that "UTA could not be subject to liability, as a matter of law, for allowing a male-to-female transsexual employee to use women's restrooms," but the court nevertheless found the UTA's fear of such liability legitimate.
198. F.3d 1215, 1219 (10th Cir. 2007) at 1226-27.
199. Notably, the court did not consider the social implications of requiring Etsitty to use men's bathrooms. See 502 F.3d 1215, 1219 (10th Cir. 2007) at 1226-27.
200. 502 F.3d 1215, 1219 (10th Cir. 2007) at 1218.
201. 502 F.3d 1215, 1219 (10th Cir. 2007) at 1218.
202. 502 F.3d 1215, 1219 (10th Cir. 2007) at 1218.
203. See 502 F.3d 1215, 1219 (10th Cir. 2007) at 1218.
204. See Dean Spade, Documenting Gender, 59 HASTINGS L.J. 731, 754-55 (2008)., at 754-55.
205. Dean Spade, Documenting Gender, 59 HASTINGS L.J. 731, 754-55 (2008). at 755;
206. Dylan Vade, Expanding Gender and Expanding the Law: Toward a Social and Legal Conceptualization of Gender that Is More Inclusive of Transgender People, 11 MICH. J. GENDER & L. 253, 266 (2005), at 268-69.
207. See Dean Spade, Documenting Gender, 59 HASTINGS L.J. 731, 754-55 (2008), at 754-55;
208. Dylan Vade, Expanding Gender and Expanding the Law: Toward a Social and Legal Conceptualization of Gender that Is More Inclusive of Transgender People, 11 MICH. J. GENDER & L. 253, 266 (2005), at 269.
209. See Dylan Vade, Expanding Gender and Expanding the Law: Toward a Social and Legal Conceptualization of Gender that Is More Inclusive of Transgender People, 11 MICH. J. GENDER & L. 253, 266 (2005), at 269.
210. See, e.g., Judith Butler, Undiagnosing Gender, in TRANSGENDER RIGHTS, xiii, xiv (Paisley Currah et al. eds., 2006), at 274.
211. See Judith Butler, Undiagnosing Gender, in TRANSGENDER RIGHTS, xiii, xiv (Paisley Currah et al. eds., 2006) Part I.A.
212. See, e.g., Jamison Green, Introduction to PAISLEY CURRAH & SHANNON MINTER, NAT'L CTR. FOR LESBIAN RIGHTS, TRANSGENDER EQUALITY: A HANDBOOK FOR ACTIVISTS AND POLICYMAKERS 3 (2000), available at http://www.thetaskforce.org/downloads/reports/reports/TransgenderEqualit y.pdf., at 3.
213. 444 F.3d 1104 (9th Cir. 2005) (en banc).
214. 444 F.3d 1104 (9th Cir. 2005) at 1106-07.
215. 444 F.3d 1104 (9th Cir. 2005) at 1107-08.
216. 444 F.3d 1104 (9th Cir. 2005) at 1107-08.
217. 444 F.3d 1104 (9th Cir. 2005) at 1107-08. Jespersen also testified that "when she wore the makeup, she felt very demeaned."
218. F.3d 1104 (9th Cir. 2005) at 1107-08.
219. 444 F.3d 1104 (9th Cir. 2005) at 1106.
220. 444 F.3d 1104 (9th Cir. 2005) at 1112. The court distinguished Price Waterhouse based on the impact that the discrimination at issue there had on prospects for job success: Anne Hopkins was assailed by the Price Waterhouse partners for "the forceful and aggressive techniques that made her successful in the first place."
221. F.3d 1104 (9th Cir. 2005) at 1111. In Jespersen's case, however, there was "nothing to suggest the grooming standards would objectively inhibit a woman's ability to do the job."
222. F.3d 1104 (9th Cir. 2005) at 1112. Under this interpretation, sex-stereotyping protection for gender extends only to a subset of gender nonconforming traits which objectively foster job performance in a particular setting.
223. 444 F.3d 1104 (9th Cir. 2005) at 1009.
224. 444 F.3d 1104 (9th Cir. 2005) at 1009.
225. 444 F.3d 1104 (9th Cir. 2005) at 1118 (Kozinski, J., dissenting).
226. Schroer III, 577 F. Supp. 2d 293, 306 (D.D.C. 2008).
227. Schroer III, 577 F. Supp. 2d 293, 306 (D.D.C. 2008).
228. Jamison Green, Introduction to PAISLEY CURRAH & SHANNON MINTER, NAT'L CTR. FOR LESBIAN RIGHTS, TRANSGENDER EQUALITY: A HANDBOOK FOR ACTIVISTS AND POLICYMAKERS 3 (2000), available at http://www.thetaskforce.org/downloads/reports/reports/TransgenderEqualit y.pdf., at 3.
229. E.E.O.C. v. Union Independiente De La Autoridad De Aqueductos U Alcantarillados De P.R., 279 F.3d 49, 57 (1st Cir. 2002).
230. See Susannah P. Mroz, Note, True Believers: Problems of Definition in Title VII Religious Discrimination Jurisprudence, 39 IND. L. REV 145, 159-73 (2005) (describing several Title VII cases in which courts have "tested" religious identity, despite First Amendment limitations that prevent courts from defining "religion").
231. See Susannah P. Mroz, Note, True Believers: Problems of Definition in Title VII Religious Discrimination Jurisprudence, 39 IND. L. REV 145, 159-73 (2005) at 160-62 (describing Title VII cases in which courts held that neither belief in the healing power of "Kozy Kitten People/Kat Food" nor Ku Klux Klan ideology was a religious belief).
232. Elizabeth Reilly has similarly proposed that tests for religious identity can be used as models for the legal validation of an intersex person's self-determined sex identity. See Elizabeth Reilly, Radical Tweak: Relocating the Power to Assign Sex, 12 CARDOZO J.L. & GENDER 297, 334-35 (2005).
233. See United States v. Ballard, 322 U.S. 78, 86 (1944) (noting that under the First Amendment, persons "may not be put to the proof of their religious doctrines or beliefs").
234. United States. v. Seeger, 380 U.S. 163, 166 (1965).
235. Frazee v. Ill. Dept. of Emp't Sec., 489 U.S. 829, 834 (1989).
236. See, e.g., Young v. Sw. Sav. & Loan Ass'n, 509 F.2d 140, 141-42 (5th Cir. 1975) (upholding an atheist's religious discrimination claim under Title VII);
237. Peterson v. Wilmur Comm. Inc., 205 F. Supp. 2d 1014, 1015-16 (E.D. Wis. 2002) (holding that adherence to the white supremacist doctrine of "Creativity" constituted a religious belief under Title VII even though it "does not espouse a belief in God, afterlife or any sort of supreme being").
238. Thomas v. Review Bd. of the Ind. Emp't Sec. Div., 450 U.S. 707, 714 (1981).
239. Seeger, 380 U.S. at 185 ("But we hasten to emphasize that while the 'truth' of a belief is not open to question, there remains the significant question whether it is 'truly held.'").
240. See E.E.O.C. v. Union Independiente De La Autoridad De Aqueductos U Alcantarillados De P. R., 279 F.3d 49, 56 (1st Cir. 2002) (noting that a Title VII plaintiff "must demonstrate both that the belief ... is religious and that it is sincerely held" and that "the element of sincerity is fundamental" in order to show conflict with an employment requirement);
241. see also Susannah P. Mroz, Note, True Believers: Problems of Definition in Title VII Religious Discrimination Jurisprudence, 39 IND. L. REV 145, 159-73 (2005), at 167-68 (noting that the analysis of the religious character of a belief is distinct from the analysis of "whether the peron 'really' believes it," and that "[e]ven seemingly 'religious' beliefs do not qualify as 'religious' [for the purposes of Title VII protection] if they are not 'sincere'").
242. See Union Independiente, 279 F.3d at 57 ("Evidence tending to show that an employee acted in a manner inconsistent with his professed religious belief is ... relevant to the factfinder's evaluation of sincerity." (citation omitted));
243. see also Susannah P. Mroz, Note, True Believers: Problems of Definition in Title VII Religious Discrimination Jurisprudence, 39 IND. L. REV 145, 159-73 (2005), 172 (concluding that, under religion-related Title VII jurisprudence, courts compare a person's beliefs to his actions and, "if the two conflict too greatly, courts will find that a supposedly 'religious' belief is ... not 'sincere'").
244. Union Independiente, 279 F.3d at 51.
245. Union Independiente, 279 F.3d at 56-57.
246. Union Independiente, 279 F.3d at 57.
247. 134 F. Supp. 2d 591, 592 (S.D.N.Y. 2001).
248. 134 F. Supp. 2d 591, 592 (S.D.N.Y. 2001) at 597 (finding that the plaintiff's religious assertion was "not bona fide").
249. 134 F. Supp. 2d 591, 592 (S.D.N.Y. 2001) at 596.
250. 134 F. Supp. 2d 591, 592 (S.D.N.Y. 2001) at 596-97.
251. 849 F. Supp. 673, 674 (E.D. Ark. 1993).
252. Etsitty v. Utah Transit Auth., 502 F.3d 1215, 1218 (10th Cir. 2007).
253. Etsitty v. Utah Transit Auth., 502 F.3d 1215, 1218 (10th Cir. 2007)
254. Jespersen v. Harrah's Operating Co., Inc., 444 F.3d 1104, 1118 (9th Cir. 2006) (Kozinski, J., dissenting).
255. Jespersen v. Harrah's Operating Co., Inc., 444 F.3d 1104, 1118 (9th Cir. 2006)
256. See, e.g., Etsitty, 502 F.3d at 1224, 1226 (holding that a transgender woman could be fired for using women's public restrooms based on the employer's fear of liability);
257. Johnson v. Fresh Mark, Inc., 337 F. Supp. 2d 996, 1000 (N.D. Ohio 2003) (upholding an employer's genital-based restroom access policy because it "only required Plaintiff to conform to the accepted principles established for gender-distinct public restrooms");
258. Goins v. West Grp., 635 N.W.2d 717, 723 (Minn. 2001) (upholding an employer's genital-based restroom access policy because "the traditional and accepted practice in the employment setting is to provide restroom facilities that reflect the cultural preference for restroom designation based on biological gender").
259. See, e.g., Holloway v. Arthur Andersen & Co., 566 F.2d 659, 661 n.1 (7th Cir. 1977) (denying a Title VII sex discrimination complaint by a transgender woman who was fired, in part, because of "problems" created by her "use of the men's room");
260. Doe v. Boeing Co., 823 P.2d 1159, 1162 (Wash. Ct. App. 1992) (upholding a discrimination complaint against an employer who prohibited a transsexual employee from using a women's bathroom, and then fired the employee when she wore a pink pearl necklace because it "would cause a complaint if she wore it into the men's rest room").
261. Jenifer M. Ross-Amato, Transgender Employees & Restroom Designation-Goins v. West Group, Inc., 29 WM. MITCHELL L. REV. 569, 594 (2002) (citation omitted).
262. See Jenifer M. Ross-Amato, Transgender Employees & Restroom Designation-Goins v. West Group, Inc., 29 WM. MITCHELL L. REV. 569, 594 (2002) ("Practically, admittance into multi-use restrooms is determined on the basis of outward appearance ... .").
263. See Jennifer L. Levi, Clothes Don't Make the Man (or Woman), But Gender Identity Might, 15 COLUM. J. GENDER & L. 90, 111-12 (2006) and accompanying text. To make this point, Jennifer Levi invokes a "thought experiment" proposed by transgender author Daphne Scholinski, who -asks readers to imagine being forced to express their gender identity in a way inconsistent with their sense of self, and to imagine doing so not as a lark, but rather as against one's will-first, for a day, then for a week, and then for an extended period of time. 'Try changing things....
264. See how far you can contradict your nature. Feel how your soul rebels.' For most people who seriously engage the thought experiment, the result is the same-serious discomfort that could translate into humiliation and degradation of one's sense of self. Jennifer L. Levi, Clothes Don't Make the Man (or Woman), But Gender Identity Might, 15 COLUM. J. GENDER & L. 90, 111-12 (2006), at 111-12
265. Quoting DAPHNE SCHOLINSKI, THE LAST TIME I WORE A DRESS xi (1997).