Taking the fight back to title VII: A case for redefining "because of sex" to include gender stereotypes, sexual orientation, and gender identity

Southern California Law Review

Volumn 84, Issue 2, 2011, Pages 487-539

  Sung, William C ^a  

^a UNIVERSITY OF SOUTHERN CALIFORNIA   (United States)

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EID: 79955087867     PISSN: 00383910     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (506)

1. See Employment Non-Discrimination Act: Ensuring Opportunity for All Americans: Hearing on S. 1584 Before the S. Comm. on Health, Educ., Labor and Pensions, 111th Cong. 1, 3-4 (2009) (statement of Michael P. Carney, Police Officer, Springfield, Massachusetts), available at http://help. senate.gov/imo/media/doc/Carney.pdf.
2. Id. at 3-4.
3. Id. at 3.
4. See id. at 1.
5. Id.
6. Id.
7. Id. at 2.
8. See id.
9. Id.
10. See id.
11. Id. at 2-3.
12. Id. at 3.
13. Id.
14. See id.
15. See id.
16. See U. S. GOV'T ACCOUNTABILITY OFFICE, GAO-10-135R, SEXUAL ORIENTATION AND GENDER IDENTITY EMPLOYMENT DISCRIMINATION: OVERVIEW OF STATE STATUTES AND COMPLAINT DATA 1(2009). According to the Government Accountability Office's report, as of 2009 twenty-one states and the District of Columbia had antidiscrimination statutes that prohibit employment discrimination on the basis of sexual orientation: California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Washington, and Wisconsin.
17. Id. at 1 n. 2. Twelve of these states and the District of Columbia also had statutes that prohibit employment discrimination on the basis of gender identity: California, Colorado, Illinois, Iowa, Maine, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington.
18. Id. at 2 n. 9.
19. See Why ENDA Matters: True Stories of Anti-LGBT Employment Discrimination from the ACLU, BILERICO PROJECT (Oct. 31, 2009, 10:00 AM), http://www.bilerico. com/2009/10/why-enda-matters-true-stories-of-anti-lgbt-employm-1.php.
20. Id.
21. Id.
22. Id.
23. See id. In 2007, after thirty-four long years of struggle, Oregon finally enacted the Oregon Equality Act, an omnibus civil rights bill that protects lesbian, gay, bisexual, and transgender ("LGBT") individuals from discrimination in employment and other areas.
24. See Jason N. Reed, Senate Passes Oregon Equality Act, Granting Rights, Outlawing Discrimination, OR. DAILY EMERALD, Apr. 23, 2007, at 3;
25. Press Release, Lambda Legal, The Oregon Equality Act: Protection for Lesbian, Gay, Bisexual and Transgender People 1 (Sept. 19, 2007), http://data.lambdalegal.org/pdf/fs-oregon-equality-act.pdf. Calvo has emerged from her plight as a champion of LGBT rights and a community leader in Portland, Oregon.
26. See Catherine Cole, Laura Calvo Brings It Every Damn Day, PORTLAND MERCURY, June 5, 2008, http://www.portlandmercury.com/portland/Content?oid= 791774&category=791724. In fact, Calvo was the only transgender person to testify in front of the Oregon legislature in support of the Oregon Equality Act.
27. Id. For nearly 380 more examples of workplace discrimination against individuals because of their actual or perceived sexual orientations or gender identities
28. see BRAD SEARS, CHRISTY MALLORY & NAN D. HUNTER, WILLIAMS INST.
29. Specific Examples of Employment Discrimination by State and Local Governments, 1980-Present, in DOCUMENTING DISCRIMINATION ON THE BASIS OF SEXUAL ORIENTATION AND GENDER IDENTITY IN STATE EMPLOYMENT 13-1 (2009), http://escholarship.org/uc/uclalaw-williams-enda.
30. See BRAD SEARS, CHRISTY MALLORY & NAN D. HUNTER, WILLIAMS INST.
31. Estimates of LGBT Public Employees, in DOCUMENTING DISCRIMINATION ON THE BASIS OF SEXUAL ORIENTATION AND GENDER IDENTITY IN STATE EMPLOYMENT, supra note 21, at 3-1, 3-6 [hereinafter Estimates of LGBT Public Employees].
32. See id. at 3-4 to 3-6.
33. See id.
34. See id.
35. Compare Chai R. Feldblum, The Federal Gay Rights Bill: From Bella to ENDA, in CREATING CHANGE: SEXUALITY, PUBLIC POLICY, AND CIVIL RIGHTS 149, 178-87 (John D'Emilio, William B. Turner & Urvashi Vaid eds., 2000) (advocating the Employment Non-Discrimination Act, a stand-alone antidiscrimination bill)
36. Jill D. Weinberg, Gender Nonconformity: An Analysis of Perceived Sexual Orientation and Gender Identity Protection Under the Employment Non-Discrimination Act, 44 U. S. F. L. Rev. 1, 30-31 (2009) (same)
37. Regina L. Stone-Harris, Comment, Same-Sex Harassment-The Next Step in the Evolution of Sexual Harassment Law Under Title VII, 28 ST. MARY'S L. J. 269, 315-24 (1996) (same)
38. and Shannon H. Tan, Student Work, When Steve Is Fired for Becoming Susan: Why Courts and Legislators Need to Protect Transgender Employees from Discrimination, 37 STETSON L. REV. 579, 609(2008) (same)
39. with Jennifer S. Hendricks, Instead of ENDA, a Course Correction for Title VII, 103 NW. U. L. REV. COLLOQUY 209, 212-15 (2008), available at http://www.law. northwestern.edu/lawreview/colloquy/2008/43/ LRColl2008n43Hendricks.pdf (advocating amending Title VII to include discrimination against LGBT individuals)
40. and J. Banning Jasiunas, Note, Is ENDA the Answer? Can a "Separate but Equal" Federal Statute Adequately Protect Gays and Lesbians from Employment Discrimination?, 61 OHIO ST. L. J. 1529, 1546-56 (2000) (same). For a third, interdisciplinary approach
41. see Ann C. McGinley, Erasing Boundaries: Masculinities, Sexual Minorities, and Employment Discrimination, 43 U. MICH. J. L. REFORM 713(2010). McGinley relies on gender studies to argue that the distinction between impermissible gender stereotype discrimination and permissible sexual orientation or gender identity discrimination is "inadvisable and impossible" because the vast majority of the sexual orientation cases are brought by men in traditionally male workplaces and all of the transgender cases are brought by [male-to-female transsexuals]. In both cases, the harassment or other discriminatory behavior occurs because the plaintiff, who is identified by the perpetrators as a man, threatens the definition and concept of masculinity.... In this way,... discrimination against sexual minorities is inherently "because of sex" and therefore prohibited by Title VII.
42. Id. at 770. Unless and until courts understand that much of the discriminatory or harassing conduct is gender motivated, neither a stand-alone statute nor an amendment to Title VII will be able fully to protect LGBT individuals against workplace discrimination.
43. See id. at 715-16, 770-72. Although this Note also argues that it is virtually impossible to distinguish among genderstereotype discrimination (protected), gender identity discrimination (sometimes protected), and sexual orientation discrimination (rarely protected), this Note's argument diverges from McGinley's in one critical respect. McGinley focuses on the gender-based motivations of those who discriminate or harass LGBT workers. This Note examines the gender-nonconforming preferences or expressions of LGBT individuals.
44. See infra Part II. A.1-2.
45. See infra Part II. A.2.
46. H. R. 3017, 111th Cong. (2009);
47. H. R. 2981, 111th Cong. (2009);
48. S. 1584, 111th Cong. (2009). This Note will distinguish versions of ENDA introduced in different sessions of Congress by their years of introduction, and versions proposed in the same session by their bill numbers.
49. H. R. 3017 § 4 (a) (1).
50. See infra Part II. B-C.
51. See Paisley Currah & Shannon Minter, Unprincipled Exclusions: The Struggle to Achieve Judicial and Legislative Equality for Transgender People, 7 WM. & MARY J. WOMEN & L. 37, 50(2000) ("[I]dentifying gender identity as a distinct classification may reinforce the perception, which is already so pervasive and damaging in the case law, that transgender people are somehow fundamentally distinct from-and by implication, inferior to-non-transgender people, i.e., that transgender people are not men or women, but something other or in-between. ").
52. See infra Part III.
53. This Note uses the term "transgender" to refer to preoperative, postoperative, and nonoperative transsexuals-"those who identify emotionally or psychologically with the sex other than their biological or legal sex at birth, and who present themselves on a daily basis as a member of that sex."
54. Marvin Dunson III, Comment, Sex, Gender, and Transgender: The Present and Future of Employment Discrimination Law, 22 BERKELEY J. EMP. & LAB. L. 465, 466 n. 5(2001). In contrast, some legal scholars have used the term more broadly to cover individuals who do not conform to stereotypical gender norms.
55. See, e.g., Currah & Minter, supra note 32, at 37 n. 1 (defining the term "transgender" "in its most inclusive sense" as transsexuals as well as cross-dressers, feminine men and masculine women, intersexed people, and anyone whose gender expression "differs from conventional expectations of masculinity or femininity"). This Note does not define the term transgender in its broadest sense to cover all gender nonconforming individuals in order to preserve the ability to examine critically current categorical distinctions in antidiscrimination jurisprudence between gender stereotypes (protected), gender identity (sometimes protected), and sexual orientation (rarely protected). This Note will argue that such categorical distinctions are doctrinally indefensible, and that discrimination against a person on the basis of sexual orientation or gender identity is virtually indistinguishable from discrimination on the basis of gender stereotypes.
56. 42 U. S. C. § 2000e (k) (2006).
57. The Title VII Amendment draws its inspiration from Jennifer S. Hendricks's article, Instead of ENDA, a Course Correction for Title VII, Hendricks, supra note 26, and refines her Title VII gender amendment thesis.
58. Her gender amendment thesis proposes two revisions to Title VII: First, replace the term "sex" with "gender" wherever it appears in 42 U. S. C. §§ 2000e-2000e17. Second, define "because of sex" to include sexual orientation and gender identity.
59. Id. at 212. The Title VII Amendment refines Hendricks's thesis in two ways. First, instead of replacing "sex" with "gender, " it proposes to leave "sex" as is. This approach addresses two critical issues with her proposed replacement upon which her article does not touch. One, how will the proposed replacement weaken Title VII's existing sex-based protections? And two, will the replacement be viewed as a symbolic loss by some-perhaps feminists-thereby possibly alienating one group of potential allies in the fight to amend Title VII? Second, in addition to adding sexual orientation and gender identity, the Title VII Amendment also proposes to add gender stereotypes to the definition of "because of sex."
60. Central to this Note is the premise that since Price Waterhouse v. Hopkins, 490 U. S. 228(1989), courts have interpreted discrimination on the basis of gender stereotypes as discrimination "because of sex, " and sexual orientation-and gender identity-based discrimination are natural extensions of gender stereotype-based discrimination. Therefore, redefining "because of sex" to provide antidiscrimination protection for LGBT workers must necessarily include gender stereotypes as well as sexual orientation and gender identity.
61. Price Waterhouse, 490 U. S. 228.
62. Oncale v. Sundowner Offshore Servs., Inc., 523 U. S. 75(1998).
63. H. R. 15692, 93d Cong. (1974);
64. H. R. 14752, 93d Cong. (1974).
65. While sex was included as a protected class in Title VII of the Civil Rights Act, it was left out of other titles, resulting in a prohibition against discrimination on the basis of sex in employment (Title VII) but not in public accommodations (Title II), public facilities (Title III), or federally assisted programs (Title VI).
66. See Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241, 243-66 (codified as amended in scattered sections of 42 U. S. C.). In proposing to amend the Civil Rights Act, Congresswoman Abzug intended for sex, marital status, and sexual orientation to stand on equal legal footing as race, color, religion, and national origin. The reason why only Title VII included sex as a protected class is an interesting piece of legislative history. The term "sex" was added as a last-minute amendment to Title VII of House Bill 7152-the House version of the Civil Rights Act-by Congressman Howard Smith of Virginia, a conservative Southern critic of the civil rights movement.
67. See CHARLES WHALEN & BARBARA WHALEN, THE LONGEST DEBATE: A LEGISLATIVE HISTORY OF THE 1964 CIVIL RIGHTS ACT 15-18 (1985). Many believe that Congressman Smith offered the sex amendment in hopes of ultimately killing the bill.
68. See, e.g., id.;
69. Weinberg, supra note 26, at 5-6.
70. But see Robert C. Bird, More Than a Congressional Joke: A Fresh Look at the Legislative History of Sex Discrimination of the 1964 Civil Rights Act, 3 WM. & MARY J. WOMEN & L. 137, 137-38, 150-53 (1997) ("Congress added sex as a result of subtle political pressure from individuals, who for varying reasons, were serious about protecting the rights of women. ");
71. Jo Freeman, How "Sex" Got into Title VII: Persistent Opportunism as a Maker of Public Policy, 9 LAW & INEQ. 163, 178(1991) ("The vote on the 'sex' amendment was the largest counted vote that day. The overall voting pattern implies that there was a large group of Congressmen (in addition to the Congresswomen) that was serious about adding 'sex' to Title VII, but only to Title VII. That is not consistent with an interpretation that the addition of 'sex' was part of a plot to scuttle the bill.");
72. id. at 172-79. Congressman Smith's supposed plan backfired, however, because on February 8, 1964, the same day as the addition of "sex" to Title VII, the Civil Rights Act passed the House with a vote of 168 to 133, and ultimately passed the Senate with a vote of 73 to 27.
73. See WHALEN & WHALEN, supra, at 114-17, 215. In the end, "What began as an insidious plot to defeat the civil rights bill has become a nightmare for judicial interpretation, particularly in more contemporary cases involving gender stereotypes." Weinberg, supra note 26, at 6. Due to the last-minute nature of the sex amendment, Congress provided little guidance on the meaning of "sex" as a prohibited basis of discrimination in employment. As the Supreme Court noted, "The legislative history of Title VII's prohibition of sex discrimination is notable primarily for its brevity."
74. Gen. Elec. Co. v. Gilbert, 429 U. S. 125, 143(1976). This brevity of legislative guidance came front and center as courts struggled to make sense of Title VII sex discrimination lawsuits brought by LGBT or gender-nonconforming plaintiffs. This Note will examine the courts' struggles in Part III.
75. Elias Vitulli, A Defining Moment in Civil Rights History? The Employment Non-Discrimination Act, Trans-Inclusion, and Homonormativity, 7 SEXUALITY RES. & SOC. POL'Y 155, 156(2010).
76. See H. R. 15692.
77. Compare Equality Act of 1975, H. R. 4477, 94th Cong. (1975)
78. with Civil Rights Amendments of 1975, H. R. 5452, 94th Cong. (1975).
79. In the House of Representatives, the following bills were proposed to amend the Civil Rights Act of 1964 to include sexual orientation or preference as a protected class: H. R. 431, 103d Cong. (1993);
80. H. R. 423, 103d Cong. (1993);
81. H. R. 1430, 102d Cong. (1991);
82. H. R. 655, 101st Cong. (1989);
83. H. R. 709, 100th Cong. (1987);
84. H. R. 230, 99th Cong. (1985);
85. H. R. 2624, 98th Cong. (1983);
86. H. R. 427, 98th Cong. (1983);
87. H. R. 3371, 97th Cong. (1981);
88. H. R. 1454, 97th Cong. (1981);
89. H. R. 2074, 96th Cong. (1979);
90. H. R. 12149, 95th Cong. (1978);
91. H. R. 10575, 95th Cong. (1978);
92. H. R. 8269, 95th Cong. (1977);
93. H. R. 8268, 95th Cong. (1977);
94. H. R. 7775, 95th Cong. (1977);
95. H. R. 5239, 95th Cong. (1977);
96. H. R. 4794, 95th Cong. (1977);
97. H. R. 2998, 95th Cong. (1977);
98. H. R. 451, 95th Cong. (1977);
99. H. R. 13928, 94th Cong. (1976);
100. H. R. 13019, 94th Cong. (1976);
101. H. R. 10389, 94th Cong. (1975);
102. H. R. 5452;
103. H. R. 2667, 94th Cong. (1975);
104. H. R. 166, 94th Cong. (1975).
105. In the Senate, the following bills were proposed to amend the Civil Rights Act of 1964 to include sexual orientation or preference as a protected class: S. 574, 102d Cong. (1991);
106. S. 47, 101st Cong. (1989);
107. S. 2109, 100th Cong. (1988);
108. S. 464, 100th Cong. (1987);
109. S. 1432, 99th Cong. (1985);
110. S. 2081, 96th Cong. (1979).
111. See H. R. 14752 (1974, 0 sponsors);
112. H. R. 1430 (1991, 110 cosponsors);
113. S. 2081 (1979, 3 cosponsors);
114. S. 574 (1991, 16 cosponsors). For a detailed discussion on how the civil rights amendment bills gained momentum in Congress
115. see Feldblum, supra note 26, at 158-69.
116. See H. R. 4636, 103d Cong. (1994);
117. S. 2238, 103d Cong. (1994).
118. See National Defense Authorization Act for Fiscal Year 1994, Pub. L. No. 103-160, sec. 571, § 654, 107 Stat. 1547, 1670-73 (1993) (repealed 2010) ("Policy concerning homosexuality in the armed forces.").
119. Feldblum, supra note 26, at 178.
120. Kay Longcope, Rally Renewed for National Gay Rights Bill, BOS. GLOBE, June 2, 1990, at 8.
121. Americans with Disabilities Act of 1990, Pub. L. No. 101-336, 104 Stat. 327 (codified as amended in scattered sections of 42 and 47 U. S. C.).
122. Other examples of stand-alone civil rights legislation include the Age Discrimination in Employment Act of 1967, 29 U. S. C. §§ 621-634 (2006)
123. and the Genetic Information Nondiscrimination Act of 2008, Pub. L. No. 110-233, 122 Stat. 881 (codified in scattered sections of 26, 29, and 42 U. S. C.).
124. See Feldblum, supra note 26, at 177.
125. Id. at 178.
126. Id. at 176.
127. Andrew Kopkind, The Gay Moment, NATION, May 3, 1993, at cover.
128. Lisa Pope, Gays Rally in Washington: Huge Crowds Press Demands for Equal Rights, DAILY NEWS L. A., Apr. 26, 1993, at N1.
129. See Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, Pub. L. No. 111-84, § 4707, 123 Stat. 2835, 2838-40 (2009)
130. (to be codified at 18 U. S. C. § 249);
131. Editorial, A Civil Rights Advance: A Federal Law Targets Violence Based on Sexual Orientation, WASH. POST, Oct. 28, 2009, at A22. The HCPA "will provide federal, state and local law enforcement with powerful new tools to investigate, prosecute and counter hate-motivated violence."
132. Andrew L. Rosenkranz, Overdue Hate Crimes Law Remains a Powerful Tool, SUN-SENTINEL (Fort Lauderdale), Nov. 10, 2009, http://articles.sun-sentinel.com/ 2009-11-10/news/0911130082-1-crimes-legislation-hate-motivatedlaw-enforcement.
133. See 18 U. S. C. § 245(2006).
134. But see Currah & Minter, supra note 32, at 50 (arguing that, at least for transgender individuals, "[d]esignating gender identity as a freestanding classification sends a powerful message that transgender people are entitled to full equality and legitimacy").
135. See infra Part II. C.
136. See HUMAN RIGHTS CAMPAIGN FOUND., CORPORATE EQUALITY INDEX 2010, at 2-4, 10-11 (2010), available at http://www.hrc.org/documents/HRC-Corporate-Equality- Index-2010.pdf. Of the 590 Fortune 1000 businesses and AmLaw 200 law firms studied, 99 percent provided employment protections on the basis of sexual orientation and 72 percent provided employment protections on the basis of gender identity.
137. Id. at 3-4, 10-11. The Index gave 305 businesses the top rating of 100 percent in terms of providing LGBT workers with discrimination protection and equal employment opportunities.
138. Id. at 2.
139. See McGinley, supra note 26, at 728-29.
140. Office of Advocacy, Frequently Asked Questions, U. S. SMALL BUS. ADMIN., 1, http://archive.sba.gov/idc/groups/public/documents/ma-boston/sba-036309.pdf (last updated Sept. 2010).
141. Estimates of LGBT Public Employees, supra note 22, at 3-1.
142. See H. R. 3017, 111th Cong. (2009).
143. See S. 1584, 111th Cong. (2009).
144. See, e.g., David Crary, Key Backing for Gay Rights, CHI. TRIB., Aug. 31, 2009, at C13;
145. Editorial, Obama's Promise to Gays, L. A. TIMES, May 22, 2009, at A32.
146. One example would be the use of restroom, shower, and dressing facilities by transgender workers. Because a stand-alone bill can be tailored to address issues specific to LGBT individuals, this is certainly one-and probably not the only-area in which ENDA enjoys an advantage over the Title VII Amendment. This Note argues, however, that any such advantage is outweighed by ENDA's statutory and legislative defects.
147. See infra Part II. B-C. The shower and dressing facility issue is addressed in section 8 (a) (3) of ENDA 2009, which states, Nothing in this Act shall be construed to establish an unlawful employment practice based on actual or perceived gender identity due to the denial of access to shared shower or dressing facilities in which being seen unclothed is unavoidable, provided that the employer provides reasonable access to adequate facilities that are not inconsistent with the employee's gender identity as established with the employer at the time of employment or upon notification to the employer that the employee has undergone or is undergoing gender transition, whichever is later.
148. H. R. 3017 § 8 (a) (3);
149. S. 1584 § 8 (a) (3).
150. When the civil rights amendment bills were proposed in the 102nd Congress, they had 110 cosponsors in the House, H. R. 1430, 102d Cong. (1991)
151. and 16 cosponsors in the Senate, S. 574, 102d Cong. (1991).
152. When ENDA was first introduced in the 103rd Congress, it enjoyed 137 cosponsors in the House, H. R. 4636, 103d Cong. (1994)
153. and 30 cosponsors in the Senate, S. 2238, 103d Cong. (1994).
154. See H. R. 3017, 111th Cong. (2009);
155. H. R. 2981, 111th Cong. (2009);
156. S. 1584, 111th Cong. (2009);
157. H. R. 2015, 110th Cong. (2007);
158. H. R. 3685, 110th Cong. (2007);
159. H. R. 3285, 108th Cong. (2003);
160. S. 1705, 108th Cong. (2003);
161. H. R. 2692, 107th Cong. (2001);
162. S. 1284, 107th Cong. (2001);
163. H. R. 2355, 106th Cong. (1999);
164. S. 1276, 106th Cong. (1999);
165. H. R. 1858, 105th Cong. (1997);
166. S. 869, 105th Cong. (1997);
167. H. R. 1863, 104th Cong. (1995);
168. S. 932, 104th Cong. (1995);
169. H. R. 4636, 103d Cong. (1994);
170. S. 2238, 103d Cong. (1994). For a timeline of ENDA
171. see Timeline: The Employment Non-Discrimination Act, HUM. RTS. CAMPAIGN, http://www.hrc.org/issues/workplace/5636.htm (last visited Dec. 30, 2010).
172. See, e.g., H. R. 3017 (2009, 202 cosponsors);
173. H. R. 2355 (1999, 173 cosponsors);
174. H. R. 4636 (1994, 137 cosponsors);
175. S. 1584 (2009, 45 cosponsors);
176. S. 1276 (1999, 36 cosponsors);
177. S. 2238 (1994, 30 cosponsors).
178. See Editorial, Gay Rights Issue Won't Go Away: Senate Fluke Isn't Enough to End the Quest for Employment Equality, L. A. TIMES, Sept. 12, 1996, at B8 [hereinafter Gay Rights Issue Won't Go Away] (noting that a poll conducted by Newsweek in 1996 showed that "84% of Americans surveyed thought gay men and lesbians deserve the same treatment in employment as everyone else");
179. Kara Swisher, Odd Jobs, WASH. POST, July 31, 1994, at H7 ("[A] 1992 Newsweek poll showed that 75 percent support laws to protect gays from discrimination in the workplace.").
180. 142 Cong. Rec. 22, 477(1996) (recording the bill's failed passage in Senate by yea-nay vote of 49-50).
181. See H. R. 3685, 110th Cong. (2007);
182. Weinberg, supra note 26, at 12.
183. But see Editorial, A Civil Rights Watershed: The House Votes to Outlaw Job Discrimination Based on Sexual Orientation, WASH. POST, Nov. 11, 2007, at B6 [hereinafter A Civil Rights Watershed] (calling ENDA's passage in the House a "victory").
184. 142 CONG. REC. 22, 477.
185. See Feldblum, supra note 26, at 185-86.
186. Defense of Marriage Act, H. R. 3396, 104th Cong. §§ 2 (a), 3(a) (1996) (enacted).
187. See Feldblum, supra note 26, at 185.
188. Id. See also Weinberg, supra note 26, at 10.
189. Feldblum, supra note 26, at 185.
190. Id.; Gay Rights Issue Won't Go Away, supra note 71. Eight Republicans voted for ENDA, while five Democrats, four of whom are from the South, voted against it.
191. John E. Yang, Senate Passes Bill Against Same-Sex Marriage; In First Test on Hill, Measure to Prohibit Employment Discrimination Is Defeated, 50-49, WASH. POST, Sept. 11, 1996, at A01.
192. See Defense of Marriage Act, Pub. L. No. 104-199, sec. 3 (a), § 7, 110 Stat. 2419(1996) (codified at 1 U. S. C. § 7(2006)). DOMA passed the Senate with a vote of 85-14.
193. Yang, supra note 81, at A01. "No Republicans opposed the same-sex marriage bill while 32 Democrats supported it...."
194. Id.
195. E.g., Christine Daniels, Editorial, Civil Rights for LGB... and T, L. A. TIMES, Oct. 10, 2007, at A21;
196. Shailagh Murray, Quandary Over Gay Rights Bill: Is It Better to Protect Some or None?, WASH. POST, Oct. 18, 2007, at A23;
197. John Aravosis, How Did the T Get in LGBT?, SALON. COM, Oct. 8, 2007, http://www.salon.com/opinion/feature/2007/10/08/lgbt/;
198. Winnie Stachelberg, One Inch at a Time: On the Employment Non-Discrimination Act, CTR. FOR AM. PROGRESS 1 (Oct. 22, 2007) http://www.americanprogress.org/issues/2007/10/enda.html.
199. Alexia Elejalde-Ruiz, TransAmerica, CHI. TRIB., Nov. 18, 2009, at 7. Elias Vitulli argues that the exclusion of transgender individuals from ENDA and the LGBT movement in general is due to "homonormative strategies" that attempt to "normalize gay and lesbian community and rights." Vitulli, supra note 41, at 156. Specifically, The exclusion of gender identity from [ENDA] is homonormative in the sense that gender non-normative people are excluded in favor of a vision of a completely gender-normative gay and lesbian "community". The bill in general is homonormative because it represents an attempt to assimilate gay and lesbian people into the "American dream" and the (whitewashed, class-unconscious) normative discourse of individualism, hard work, and personal responsibility.
200. Id. at 158.
201. See, e.g., H. R. 3285, 108th Cong. § 4(2003) (prohibiting job discrimination because of an individual's sexual orientation but not gender identity);
202. S. 1276, 106th Cong. § 4(1999) (same);
203. H. R. 4636, 103d Cong. § 2(1994) (same).
204. Vitulli, supra note 41, at 161.
205. Phyllis Randolph Frye, Facing Discrimination, Organizing for Freedom: The Transgender Community, in CREATING CHANGE: SEXUALITY, PUBLIC POLICY, AND CIVIL RIGHTS, supra note 26, at 451, 462. For a chronicle of the modern transgender movement
206. see id. at 451-68.
207. Id. at 463.
208. H. R. 2015, 110th Cong. § 4(2007) (emphasis added).
209. See 153 CONG. REC. H13, 252 (daily ed. Nov. 7, 2007).
210. See Katrina C. Rose, Where the Rubber Left the Road: The Use and Misuse of History in the Quest for the Federal Employment Non-Discrimination Act, 18 TEMP. POL. & CIV. RTS. L. REV. 397, 397-98 (2009) (quoting Aravosis, supra note 83).
211. One of the principles on which ENDA was founded was "to provide a comprehensive Federal prohibition of employment discrimination on the basis of sexual orientation or gender identity." Employment Nondiscrimination Act of 2007, H. R. 2015, 110th Cong. § 2(1) (2007).
212. See Rose, supra note 91, at 397-98 (quoting Aravosis, supra note 83).
213. Id.
214. Daniels, supra note 83. A "low-bridge" is the dirtiest foul in basketball, defined as "the act of suddenly taking out a player's legs as he or she leaps for a rebound, pass or jump shot."
215. Id.
216. Murray, supra note 83.
217. See also Gabrielle Russon, Gay-Rights Milestone Draws Transgender Activists' Outcry, CHI. TRIB., Oct. 18, 2007, at C8.
218. Murray, supra note 83.
219. Id.
220. Vitulli, supra note 41, at 165 n. 12. The seven Democrats were New York Representatives Yvette Clark, Jerrold Nadler, Edolphus Towns, Nydia Velasquez, and Anthony Weiner, and Representatives Rush Holt from New Jersey and Michael Michaud from Maine.
221. Id.
222. See, e.g., A Civil Rights Watershed, supra note 74 (calling ENDA's transexclusion a "wise choice");
223. Murray, supra note 83
224. Aravosis, supra note 83
225. Stachelberg, supra note 83.
226. Russon, supra note 96, at C8. Even if ENDA 2007 had passed the Senate, President George W. Bush probably would have vetoed it. David M. Herszenhorn, Party's Liberal Base Proves Trying to Democrats Back in Power, N. Y. TIMES, Oct. 12, 2007, at A23;
227. Johanna Neuman, House OKs Gay-Worker Rights Bill; Legislation Faces Veto Threat Even If It Clears the Senate, CHI. TRIB., Nov. 8, 2007, at C3.
228. Murray, supra note 83.
229. See also Aravosis, supra note 83.
230. See Vitulli, supra note 41, at 158.
231. See Press Release, Statement of U. S. Representative Barney Frank on the Inclusion of People Who Are Transgender in Antidiscrimination Protection Legislation, Testimony in Support of H.1728/S.1687 (July 14, 2009), available at http://www.house.gov/frank/pressreleases/2009/07-14-09-frank-testimony- antidiscrimination.html ("I do have things I would like to see adopted on behalf of gay, lesbian, bisexual and transgender people: they include the right to marry the individual of our choice; the right to serve in the military to defend our country; and the right to a job based solely on our own qualifications.").
232. Paisley Currah, Expecting Bodies: The Pregnant Man and Transgender Exclusion from the Employment Non-Discrimination Act, 36 WOMEN'S STUD. Q. 330, 333(2008).
233. Mubarak Dahir, Whose Movement Is It?, ADVOCATE, tMay 25, 1999, at 50, 56. Ironically, similar shower arguments were used against gays and lesbians in the military in support of "Don't Ask, Don't Tell."
234. See Timothy J. McNulty, Gay Debate Goes to Core of Military Ethos, CHI. TRIB., Jan. 31, 1993, at C1.
235. See, e.g., Dahir, supra note 106, at 55 (quoting Frank as saying: "Frankly, to a lot of gay men, transgendered people are an embarrassment. The unspoken attitude is, Let's keep them in the closet. They're freaks and they hurt us");
236. Vitulli, supra note 41, at 158 (quoting blogger Andrew Sullivan as writing: "I've been sitting here sort of picking my own brain and asking myself if gay and trans people do in fact have some crucial thing in common. I've read tons of opinion pieces and blog posts on the ENDA war in recent weeks, but none of them really opened my eyes. What do I have in common with a guy who wants to remove his willy, grow breasts, become a woman and get married to a man? From where did this relatively new concept of 'the LGBT community' come?").
237. H. R. 3017, 111th Cong. § 4 (a) (2009);
238. S. 1584, 111th Cong. § 4 (a) (2009).
239. Even if a transinclusive ENDA is passed, its negative legislative history may create problems for transgender workers down the road in the context of judicial interpretation. This problem is addressed below in Part V. A.3.
240. A 2009 survey of 6450 transgender individuals conducted by the National Center for Transgender Equality and the National Gay and Lesbian Task Force found that, due to being transgender, 97 percent had experienced harassment or mistreatment at work, 44 percent had been denied a job, 26 percent had been fired, 15 percent lived on $10, 000 per year or less-double the rate of poverty of the general population-and 19 percent were, or had been, homeless. NAT'L CTR. FOR TRANSGENDER EQUAL. & NAT'L GAY & LESBIAN TASK FORCE, NATIONAL TRANSGENDER DISCRIMINATION SURVEY (2009), http://transequality.org/ Resources/NCTE-prelim-survey-econ.pdf.
241. See supra text accompanying notes 100-02.
242. See infra Part V. A.
243. See H. R. 3017 § 4 (a);
244. S. 1584 § 4 (a).
245. See Vitulli, supra note 41, at 159 ("[A]s the new homonormativity developed, the bill reflected these changes, becoming less inclusive, less expansive, and continued to accommodate more and more exclusions and compromises.");
246. Tan, supra note 26, at 608 ("The proposed ENDA is generally similar to Title VII, but it contains a number of exemptions designed to make the bill more palatable to its opponents.");
247. Jasiunas, supra note 26, at 1557 ("[I]t is virtually certain that the protection offered by ENDA will fall far below that offered under Title VII.").
248. See Currah & Minter, supra note 32, at 50.
249. See H. R. 3017 § 6;
250. S. 1584 § 6.
251. 42 U. S. C. § 2000e-2 (e) (1) y (2006).
252. See id. § 2000e-2 (e) (2).
253. H. R. 3017 § 6.
254. See H. R. 4636, 103d Cong. § 6(1994).
255. H. R. 2015, 110th Cong. § 6 (a) (2007).
256. Id. § 6 (b).
257. Id. § 6 (c).
258. See H. R. 3685, 110th Cong. § 6(2007).
259. Employment Non-Discrimination Act: Hearing on H. R. 3017 Before the H. Comm. on Educ. and Labor, 111th Cong. (2009) (statement of Craig L. Parshall, General Counsel, National Religious Broadcasters) (emphasis added).
260. Concerned Women for Am., CWA: ENDA Would Dismantle First Amendment Liberties, CHRISTIAN NEWSWIRE, May 11, 2007, http://www.christiannewswire.com/ news/355623091.html.
261. See also Laurie Goodstein, Christian Leaders Unite on Political Issues, N. Y. TIMES, Nov. 20, 2009, at A22 (stating that Roman Catholic and Orthodox Christian leaders signed a declaration saying they will not cooperate with laws recognizing same-sex couples because such marriages are immoral).
262. See H. R. 3017, 111th Cong. § 4 (g) (2009).
263. See 42 U. S. C. § 2000e-2 (k) (2006)
264. (permitting disparate impact claims). The disparate impact theory was first recognized by the Supreme Court in Griggs v. Duke Power Co., 401 U. S. 424, 430(1971) ("Under the Act, practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to 'freeze' the status quo of prior discriminatory employment practices.").
265. It was later codified in the Civil Rights Act of 1991, Pub. L. No. 102-166, sec. 105, § 703, 105 Stat. 1071, 1074 (codified as amended at 42 U. S. C. § 2000e-2 (k)).
266. Feldblum, supra note 26, at 179.
267. Tan, supra note 26, at 608.
268. Id. at 609;
269. Jasiunas, supra note 26, at 1556.
270. See McGinley, supra note 26, at 761-63.
271. H. R. 3017, 111th Cong. § 8 (a) (3) (2009).
272. See id.
273. See MINN. STAT. ANN. §§ 363A. 03.44,.08.2 (2004) (prohibiting employers from discriminating on the basis of sexual orientation, and defining "sexual orientation" as, among other things, "having or being perceived as having a self-image or identity not traditionally associated with one's biological maleness or femaleness").
274. Goins v. W. Grp., 635 N. W.2d 717, 723 (Minn. 2001).
275. McGinley, supra note 26, at 761-63.
276. Id. at 762.
277. See Tan, supra note 26, at 608.
278. Id. at 609;
279. Jasiunas, supra note 26, at 1556.
280. E.g., Johnson v. Transp. Agency, 480 U. S. 616, 642(1987) (condoning an employer's affirmative action plan as "embod[ying] the contribution that voluntary employer action can make in eliminating the vestiges of discrimination in the workplace");
281. United Steelworkers of Am. v. Weber, 443 U. S. 193, 208(1979) ("Title VII's prohibition... against racial discrimination does not condemn all private, voluntary, race-conscious affirmative action plans.").
282. Weber, 443 U. S. at 195.
283. The ADA makes it unlawful for an employer to "discriminate against a qualified individual with a disability because of the disability of such individual in regard to... [the] terms, conditions, and privileges of employment." 42 U. S. C. § 12112 (a) (2006).
284. See id. § 12112 (b) (6).
285. See id. § 12113 (c).
286. See id. §§ 12111(9) - (10), 12113 (a).
287. See H. R. 3017, 111th Cong. § 6(2009).
288. Vitulli, supra note 41, at 160.
289. See supra note 131 and accompanying text.
290. See infra Part III. B.
291. See infra Part III. B.4.
292. 42 U. S. C. § 2000e-2 (a) (1) (2006) (emphasis added).
293. E.g., Ulane v. E. Airlines, Inc., 742 F.2d 1081, 1085-87 (7th Cir. 1984) (rejecting a transsexual airline pilot's sex discrimination claim);
294. DeSantis v. Pac. Tel. & Tel. Co., 608 F.2d 327, 329-30 (9th Cir. 1979) (denying Title VII relief to homosexual plaintiffs);
295. Smith v. Liberty Mut. Ins. Co., 569 F.2d 325, 326-27 (5th Cir. 1978) 1 (holding that Title VII does not prohibit discrimination against males who are "effeminate");
296. *7 (D. Conn. May 5, 2009) (rejecting a bisexual plaintiff's Title VII claim).
297. De Santis, 608 F.2d at 328-29. During that period, it was common for courts to use the terms sex and gender interchangeably. While the two terms may have been synonymous at one point, they are now conceptually distinct-sex refers to the anatomical characteristics that define men and women, while gender refers to the cultural norms associated with masculinity and femininity.
298. See infra text accompanying notes 208-11.
299. DeSantis, 608 F.2d at 329-30 (footnote omitted).
300. Id. at 329
301. (quoting Holloway v. Arthur Andersen & Co., 566 F.2d 659, 663 (9th Cir. 1977)).
302. E.g., Ulane, 742 F.2d at 1085 ("The phrase in Title VII prohibiting discrimination based on sex, in its plain meaning,... do[es] not outlaw discrimination against a person who has a sexual identity disorder...." (emphasis added));
303. Sommers v. Budget Mktg., Inc., 667 F.2d 748, 750 (8th Cir. 1982) (per curiam) (rejecting a male-to-female preoperative transsexual's sex discrimination claim because "for the purposes of Title VII the plain meaning must be ascribed to the term 'sex'");
304. Holloway v. Arthur Andersen & Co., 566 F.2d 659, 663 (9th Cir. 1977) ("Congress has not shown any intent other than to restrict the term 'sex' to its traditional meaning.");
305. * 8 (E. D. Wis. Dec. 10, 1980) (denying relief to a preoperative male-to-female transsexual because Title VII "does not protect males dressed or acting as females and vice versa");
306. Powell v. Read's, Inc., 436 F. Supp. 369, 371 (D. Md. 1977) (holding that to grant relief to a male-tofemale transsexual waitress would be "inconsistent with the plain meaning of the words" of Title VII);
307. Voyles v. Ralph K. Davies Med. Ctr., 403 F. Supp. 456, 457 (N. D. Cal. 1975) (finding that Title VII "speaks of discrimination on the basis of one's 'sex, '" but "[n]o mention is made of change of sex or of sexual preference")
308. aff'd, 570 F.2d 354 (9th Cir. 1978);
309. * 7 (D. N. J. Sept. 10, 1975) ("In the absence of any legislative history indicating a congressional intent to include transsexuals within the language of Title VII, the Court is reluctant to ascribe any import to the term 'sex' other than its plain meaning.")
310. aff'd, 538 F.2d 319 (3d Cir. 1976).
311. Holloway, 566 F.2d at 661.
312. Id.
313. Id.
314. Id. at 663.
315. Id. at 664.
316. Id.
317. Ulane v. E. Airlines, Inc., 742 F.2d 1081, 1082-83 (7th Cir. 1984).
318. Ulane v. E. Airlines, Inc., 581 F. Supp. 821, 832 (N. D. Ill. 1983)
319. rev'd, 742 F.2d 1081.
320. Ulane, 742 F.2d at 1082.
321. Ulane, 581 F. Supp. at 825. The district court conceded that "there [was] not a shadow of a doubt that Congress never intended anything one way or the other on the question of whether the term, 'sex, ' would include transsexuals. The matter simply was not thought of."
322. Id. The court, however, continued: "I believe that working with the word that the Congress gave us to work with, it is my duty to apply it in what I believe to be the most reasonable way. I believe that the term, 'sex, ' literally applies to transsexuals and that it applies scientifically to transsexuals."
323. Id.
324. Ulane, 742 F.2d at 1085-87.
325. Id. at 1085 (emphasis added).
326. Id. at 1087 (footnote omitted).
327. Smith v. Liberty Mut. Ins. Co., 569 F.2d 325, 326 (5th Cir. 1978).
328. Id.
329. Id. at 326-27, 330.
330. Id. at 327.
331. Id.
332. (quoting Willingham v. Macon Tel. Publ'g Co., 507 F.2d 1084, 1090 (5th Cir. 1975) (en banc)).
333. See id.
334. Price Waterhouse v. Hopkins, 490 U. S. 228, 258(1989).
335. Oncale v. Sundowner Offshore Servs., Inc., 523 U. S. 75, 82(1998).
336. Price Waterhouse, 490 U. S. at 231.
337. Id. at 232.
338. Id. at 234-35.
339. Id. at 235.
340. For a presentation of Ann Hopkins and this case in a different light, see generally Cynthia Estlund, The Story of Price Waterhouse v. Hopkins, in EMPLOYMENT DISCRIMINATION STORIES 65, 65-103 (Joel Wm. Friedman ed., 2006).
341. Price Waterhouse, 490 U. S. at 231-32.
342. See id. at 236-37.
343. Id. at 232.
344. See id. at 250. 187. Id. at 251 (alteration in original)
345. (quoting City of L. A. Dep't of Water & Power v. Manhart, 435 U. S. 702, 707 n. 13(1978)).
346. See id. at 250-51.
347. See id.
348. See, e.g., Michael Starr & Amy L. Strauss, Sex Stereotyping in Employment: Can the Center Hold?, 21 LAB. LAW. 213, 246(2006) ("[T]he notion that Title VII, as currently written, renders sex stereotyping per se impermissible strays beyond legitimate judicial interpretation or Supreme Court precedent, properly construed.").
349. See, e.g., Jespersen v. Harrah's Operating Co., 444 F.3d 1104, 1111-12 (9th Cir. 2006) (en banc) (declining to apply the reasoning of Price Waterhouse in a lawsuit involving appearance and grooming standards);
350. Harper v. Blockbuster Entm't Corp., 139 F.3d 1385, 1387 (11th Cir. 1998) (holding that different hair length standards for men and women do not violate Title VII);
351. Tavora v. N. Y. Mercantile Exch., 101 F.3d 907, 908-09 (2d Cir. 1996) (per curiam) (same);
352. Rathert v. Vill. of Peotone, 903 F.2d 510, 515-16 (7th Cir. 1990) (upholding a restriction on police officers from wearing ear studs even when not on duty);
353. * 29 (N. D. Ind. Jan. 5, 2009) (granting the employer's motion for summary judgment on a claim involving a grooming policy that required a male-to-female transsexual to dress less femininely);
354. Bedker v. Domino's Pizza, Inc., 491 N. W. 2d 275, 277 (Mich. Ct. App. 1992) (upholding a male-only hair-length grooming standard);
355. Lockhart v. La.-Pac. Corp., 795 P.2d 602, 602-04 (Or. Ct. App. 1990) (upholding a rule allowing women, but not men, to wear "facial jewelry while on the job").
356. Jespersen, 444 F.3d at 1107-08.
357. Id. at 1109-10.
358. Id. at 1111-12.
359. Mary Anne C. Case, Disaggregating Gender from Sex and Sexual Orientation: The Effeminate Man in the Law and Feminist Jurisprudence, 105 YALE L. J. 1, 61(1995)
360. (quoting Price Waterhouse v. Hopkins, 490 U. S. 228, 235(1989)).
361. Doe v. City of Belleville, 119 F.3d 563, 584 n. 17 (7th Cir. 1997)
362. vacated and remanded on other grounds, 523 U. S. 1001(1998).
363. E.g., Rene v. MGM Grand Hotel, Inc., 305 F.3d 1061, 1067 (9th Cir. 2002) (en banc) ("[W]e are presented with the tale of a [gay] man who was repeatedly grabbed in the crotch and poked in the anus.... This is precisely what Title VII forbids: 'discriminat[ion]... because of... sex.'" (third alteration and second and third ellipses in original));
364. Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864, 874-75 (9th Cir. 2001) ("Price Waterhouse sets a rule that bars discrimination on the basis of sex stereotypes.... To the extent [that DeSantis] conflicts with Price Waterhouse, as we hold it does, DeSantis is no longer good law.");
365. Simonton v. Runyon, 232 F.3d 33, 38 (2d Cir. 2000) ("The Court in Price Waterhouse implied that a suit alleging harassment or disparate treatment based upon nonconformity with sexual stereotypes is cognizable under Title VII as discrimination because of sex.");
366. Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 261 n. 4 (1st Cir. 1999) ("[J]ust as a woman can ground an action on a claim that men discriminated against her because she did not meet stereotyped expectations of femininity, a man can ground a claim on evidence that other men discriminated against him because he did not meet stereotyped expectations of masculinity." (citation omitted)).
367. See infra Part V. A.
368. Stone-Harris, supra note 26, at 271-72.
369. Oncale v. Sundowner Offshore Servs., Inc., 523 U. S. 75, 77(1998).
370. Oncale v. Sundowner Offshore Servs., Inc., 83 F.3d 118, 118-19 (5th Cir. 1996)
371. rev'd, 523 U. S. 75.
372. * 5 (E. D. La. Mar. 24, 1995)
373. aff'd, 83 F.3d 118
374. rev'd, 523 U. S. 75.
375. Oncale, 83 F.3d at 121.
376. Oncale, 523 U. S. at 79-82.
377. Id. at 79.
378. Id. at 80-81.
379. E.g., Rene v. MGM Grand Hotel, Inc., 305 F.3d 1061, 1067 (9th Cir. 2002) (en banc) ("[W]e are presented with the tale of a [gay] man who was repeatedly grabbed in the crotch and poked in the anus.... This is precisely what Title VII forbids: 'discriminat[ion]... because of... sex.'" (third alteration and second and third ellipses in original));
380. Bibby v. Phila. Coca Cola Bottling Co., 260 F.3d 257, 264 (3d Cir. 2001) ("[T]here are at least three ways by which a plaintiff alleging same-sex sexual harassment might demonstrate that the harassment amounted to discrimination because of sex-the harasser was motivated by sexual desire, the harasser was expressing a general hostility to the presence of one sex in the workplace, or the harasser was acting to punish the victim's noncompliance with gender stereotypes.");
381. Simonton v. Runyon, 232 F.3d 33, 38 (2d Cir. 2000) ("The Court in Price Waterhouse implied that a suit alleging harassment or disparate treatment based upon nonconformity with sexual stereotypes is cognizable under Title VII as discrimination because of sex.");
382. Doe v. City of Belleville, 119 F.3d 563, 581 (7th Cir. 1997) ("[A] man who is harassed because his voice is soft, his physique is slight, his hair is long, or because in some other respect he exhibits his masculinity in a way that does not meet his coworkers' idea of how men are to appear and behave, is harassed 'because of' his sex.")
383. vacated and remanded on other grounds, 523 U. S. 1001(1998).
384. Dunson, supra note 34, at 476.
385. See supra note 154. The current interchangeability of the term "sex" with "gender" in law can be traced back to Justice Ginsburg's litigation of constitutional sex discrimination cases in the 1970s.
386. Case, supra note 195, at 9-10. Fearing that "the word 'sex' may conjure up improper images, " Justice Ginsburg, then a leading litigator of Supreme Court sex discrimination cases, stopped referring to "sex discrimination" and started to use the phrase "gender discrimination. "
387. See id.
388. J. E. B. v. Alabama ex rel. T. B., 511 U. S. 127, 157 n. 1(1994) (Scalia, J., dissenting).
389. Currah, supra note 105, at 335.
390. If Title VII does not explicitly cover perceived sexual orientation, some courts might take the position that straight-identified, effeminate men or masculine women are not protected by Title VII because they are not discriminated against or harassed because of their homosexuality or gender nonconformity, but because they are simply perceived to be gay or lesbian.
391. See supra note 50 and accompanying text.
392. See Feldblum, supra note 26, at 177-78.
393. But see Currah & Minter, supra note 32, at 50 ("Pragmatically, it may be easier to persuade legislators to amend the definition of an existing protection than to add a new category of protected persons to the law, which is likely to be seen as a more radical step. ").
394. See 42 U. S. C. §§ 12111-12117 (2006) (employment);
395. id. §§ 12131-12134, 12141-12150, 12161-12165 (public entities);
396. id. §§ 12181-12189 (public accommodations);
397. U. S. C. § 225(2006) (telecommunications).
398. See supra notes 50-51 and accompanying text.
399. Pregnancy Discrimination Act of 1978, Pub. L. No. 95-555, 92 Stat. 2076
400. (codified as amended at 42 U. S. C. § 2000 e (k)).
401. Gen. Elec. Co. v. Gilbert, 429 U. S. 125(1976), superseded by statute, Pregnancy Discrimination Act of 1978, as recognized in Newport News Shipbuilding & Dry Dock Co. v. EEOC
402. U. S. 669, 670(1983).
403. Gilbert, 429 U. S. at 127-28.
404. Gilbert v. Gen. Elec. Co., 375 F. Supp. 367, 385-86 (E. D. Va. 1974)
405. aff'd, 519 F.2d 661 (4th Cir. 1975)
406. rev'd, 429 U. S. 125.
407. Gilbert, 519 F.2d at 668.
408. See Geduldig v. Aiello, 417 U. S. 484, 486, 496-97 (1974).
409. Gilbert, 429 U. S. at 136.
410. Pregnancy Discrimination Act of 1978, Pub. L. No. 95-555, sec. 1, § 701, 92 Stat. 2076 (codified as amended at 42 U. S. C. § 2000e (k) (2006)).
411. See infra Part V. B.
412. See infra Part V. A.
413. Here is where my argument aligns with Currah and Shannon Minter's inclusive definition of transgender, which includes anyone whose gender expression "differs from conventional expectations of masculinity or femininity."
414. See Currah & Minter, supra note 32, at 37 n. 1.
415. Hendricks, supra note 26, at 212.
416. Ulane v. E. Airlines, Inc., 742 F.2d 1081, 1087 (7th Cir. 1984). And recall that the Seventh Circuit found discrimination based on these acts to be permissible discrimination under Title VII.
417. Id.
418. See id. at 1085.
419. See infra notes 232-40 and accompanying text.
420. James v. Ranch Mart Hardware, Inc., No. 94-2235-KHV, 1994 U. S. Dist. LEXIS 19102 (D. Kan. Dec. 23, 1994).
421. *2.
422. *3.
423. *3
424. (quoting Sommers v. Budget Mktg., Inc., 667 F.2d 748, 749 (8th Cir. 1982) (per curiam)).
425. Broadus v. State Farm Ins. Co., No. 98-4254-CV-C-SOW-ECF, 2000 U. S. Dist. LEXIS 19919 (W. D. Mo. Oct. 11, 2000).
426. The Broadus court did not cite Oncale. This is probably because Broadus did not involve a same-sex harassment claim. Thus, the sole issue before the court with respect to the sex discrimination claim was whether a transsexual is protected by Title VII.
427. *10-11.
428. Id.
429. *11 ("Sexual stereotyping which plays a role in an employment decision is actionable under Title VII."). The Broadus court called what occurred in Price Waterhouse "sexual stereotyping, " but it is referred to as "gender stereotyping" throughout this Note.
430. Id.
431. Oncale v. Sundowner Offshore Servs., Inc., 523 U. S. 75, 79(1998).
432. In fact, the legislative history behind the sex amendment indicates that it was initially proposed as a way to sabotage the passage of the Civil Rights Act, and therefore it could be said that Congress did not even consider the evils of traditional sex-based discrimination in passing the sex amendment.
433. See supra note 40.
434. Ilona M. Turner, Comment, Sex Stereotyping Per Se: Transgender Employees and Title VII, 95 CALIF. L. REV. 561, 595(2007).
435. See, e.g., Barnes v. City of Cincinnati, 401 F.3d 729, 737 (6th Cir. 2005) ("Following the holding in Smith, [the male-to-female transsexual plaintiff] established that he was a member of a protected class by alleging discrimination against the City for his failure to conform to sex stereotypes.");
436. Smith v. City of Salem, 378 F.3d 566, 575 (6th Cir. 2004) ("[D]iscrimination against a plaintiff who is a 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....");
437. Schroer v. Billington, 577 F. Supp. 2d 293, 308 (D. D. C. 2008) ("Even if the decisions that define the word 'sex' in Title VII as referring only to anatomical or chromosomal sex are still good law-after that approach 'has been eviscerated by Price Waterhouse, ' the [defendant's] refusal to hire [the plaintiff] after being advised that she planned to change her anatomical sex by undergoing sex reassignment surgery was literally discrimination 'because of... sex.'" (citation omitted));
438. *5 (W. D. Pa. Feb. 17, 2006) ("Having included facts showing that his failure to conform to sex stereotypes of how a man should look and behave was the catalyst behind defendant's actions, [the transgender] plaintiff has sufficiently pleaded claims of gender discrimination. ");
439. * 10 (D. Ariz. June 3, 2004) ("[T]o create restrooms for each sex but to require a [trans]woman to use the men's restroom if she fails to conform to the employer's expectations regarding a woman's behavior or anatomy, or to require her to prove her conformity with those expectations, violates Title VII.").
440. See, e.g., Smith, 378 F.3d at 573 ("[T]he approach in Holloway, Sommers, and Ulane-and by the district court in this case-has been eviscerated by Price Waterhouse.");
441. Schwenk v. Hartford, 204 F.3d 1187, 1201 (9th Cir. 2000) ("The initial judicial approach taken in cases such as Holloway has been overruled by the logic and language of Price Waterhouse.").
442. Smith, 378 F.3d at 567.
443. Id. at 568.
444. Id. at 569.
445. Id.
446. * 9 (N. D. Ohio Feb. 26, 2003)
447. rev'd, 378 F.3d 566.
448. See Smith, 378 F.3d at 575.
449. Id. at 573.
450. Id.
451. Id. at 574.
452. Id. at 575.
453. Schwenk v. Hartford, 204 F.3d 1187, 1198-1201 (9th Cir. 2000) (applying Price Waterhouse to a transsexual plaintiff's sexual assault claim under the Gender-Motivated Violence Act);
454. Rosa v. Park W. Bank & Trust Co., 214 F.3d 213, 216 (1st Cir. 2000) (applying Price Waterhouse to a transsexual plaintiff's Equal Credit Opportunity Act claim).
455. Schwenk, 204 F.3d at 1193-94.
456. 42 U. S. C. § 13981 (d) (1) (2006).
457. Schwenk, 204 F.3d at 1202.
458. See id. at 1202-03.
459. Currah & Minter, supra note 32, at 40 (first omission in orginal)
460. (quoting Richard F. Storrow, Naming the Grotesque Body in the "Nascent Jurisprudence of Transsexualism, " 4 MICH. J. GENDER & L. 275, 310(1997)).
461. See also Joel Wm. Friedman, Gender Nonconformity and the Unfulfilled Promise of Price Waterhouse v. Hopkins, 14 DUKE J. GENDER L. & POL'Y 205, 218(2007) ("[L]ower courts typically reject claims by plaintiffs whose unconventional behavior or presentation of self can be seen to implicate their... transgendered identity.").
462. * 12 (D. Utah June 24, 2005) (declining to apply Price Waterhouse to a preoperative male-to-female transsexual who was terminated because she had to use female restrooms while she still had male genitalia)
463. aff'd, 502 F.3d 1215 (10th Cir. 2007);
464. * 27-28 (E. D. La. Sept. 16, 2002) (declining to apply Price Waterhouse to a heterosexual cross-dresser who was fired for cross-dressing in public).
465. Hendricks, supra note 26, at 212.
466. Broadus v. State Farm Ins. Co., No. 98-4254-CV-C-SOW-ECF, 2000 U. S. Dist. LEXIS 19919 (W. D. Mo. Oct. 11, 2000).
467. *11.
468. E.g., Rene v. MGM Grand Hotel, Inc., 305 F.3d 1061, 1067 (9th Cir. 2002) (en banc);
469. Bibby v. Phila. Coca Cola Bottling Co., 260 F.3d 257, 264 (3d Cir. 2001);
470. Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864, 874-75 (9th Cir. 2001);
471. Simonton v. Runyon, 232 F.3d 33, 38 (2d Cir. 2000);
472. Higgins v. New Balance Shoe, Inc., 194 F.3d 252, 261 n. 4 (1st Cir. 1999);
473. Doe v. City of Belleville, 119 F.3d 563, 581 (7th Cir. 1997)
474. vacated and remanded on other grounds, 523 U. S. 1001(1998).
475. Nichols, 256 F.3d 864.
476. Id. at 870.
477. See id. at 874-76.
478. Id. at 875.
479. Rene, 305 F.3d at 1063-64.
480. Id. at 1064.
481. Id.
482. Id. at 1063.
483. Id. at 1068.
484. Weinberg, supra note 26, at 14.
485. * 22 (6th Cir. Jan. 15, 1992) (rejecting a same-sex harassment claim because the harassing conduct was based on the plaintiff's perceived sexual orientation).
486. Weinberg, supra note 26, at 14 (citing Francisco Valdes, Queers, Sissies, Dykes, and Tomboys: Deconstructing the Conflation of "Sex, " "Gender, " and "Sexual Orientation" in Euro-American Law and Society, 83 CALIF. L. REV. 1, 23-24 (1995)).
487. See also Kristin M. Bovalino, Note, How the Effeminate Male Can Maximize His Odds of Winning Title VII Litigation, 53 SYRACUSE L. REV. 1117, 1134(2003) ("[G]ay plaintiffs bringing claims under Title VII should emphasize the gender stereotyping theory and de-emphasize any connection the discrimination has to homosexuality.").
488. Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005).
489. Id. at 217.
490. Id. at 218 (alteration in original) (citation omitted)
491. (quoting Howell v. N. Cent. Coll., 1320 F. Supp. 2d 717, 723 (N. D. Ill. 2004)
492. and Simonton v. Runyon, 232 F.3d 33, 38 (2d Cir. 2000), respectively).
493. See, e.g., Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 763 (6th Cir. 2006) (arguing that the discrimination against an effeminate male plaintiff was "based on [his] perceived homosexuality, rather than based on gender non-conformity");
494. Kay v. Independence Blue Cross, 142 Fed. App'x 48, 51 (3d Cir. 2005) (holding that coworkers who made comments about the plaintiff's earring and sexual orientation "[were] motivated by sexual orientation bias rather than gender stereotyping");
495. Hamm v. Weyauwega Milk Prods., Inc., 332 F.3d 1058, 1060, 1062-65 (7th Cir. 2003) (holding that coworkers who called the plaintiff a "faggot, " "bisexual, " and "girl scout" were not targeting his gender nonconformity, but his perceived sexual orientation);
496. Spearman v. Ford Motor Co., 231 F.3d 1080, 1082-83, 1085 (7th Cir. 2000) (finding the evidence that the plaintiff was called a "little bitch, " a "gay ass, " and HIV-positive, "clearly demonstrate[d] that [his] problems resulted from... his apparent homosexuality");
497. * 7 (D. Conn. May 5, 2009) (rejecting a bisexual plaintiff's argument that "sexual orientation discrimination is inherently a form of sex or gender discrimination");
498. * 11 (W. D. Pa. Sept. 13, 2007) (arguing that Congress did not intend for Title VII to prohibit discrimination on the basis of sexual orientation, and "[p]ermitting a plaintiff to simply relabel a sexual orientation claim as one for failure to conform to gender stereotypes would evade the statutory intent of Congress").
499. Valdes, supra note 277, at 24.
500. Vickers, 453 F.3d at 763.
501. Id. at 764.
502. Spearman, 231 F.3d at 1085-86
503. (citing Price Waterhouse v. Hopkins, 490 U. S. 228, 251(1989)).
504. Vickers, 453 F.3d at 764.
505. This argument echoes the Sixth Circuit's finding in Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004), that the cause of the gender nonconforming behavior is irrelevant to whether a person was discriminated against on the basis of gender stereotypes.
506. See supra text accompanying note 255.