(Trans)forming Traditional Interpretations of Title VII: "Because of Sex" and the Transgender Dilemma

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INTRODUCTION

On April 22, 2009, a Colorado judge sentenced Allen Ray Andrade to life in prison for first degree murder and a hate crime. (1) That hate crime was the bludgeoning to death of Angie Zapata, his date for the evening of July 16, 2008. (2) When Andrade discovered that Angie was a male to female transsexual, he flew into a rage and beat her to death with a fire extinguisher. (3) Colorado is now one of the first states to convict a person of a hate crime for violence against a transgender individual, and LGBT groups applauded this conviction as a victory for transgender individuals in the United States. There has recently been a push to pass federal legislation that would include "gender identity" in a list of protected characteristics that could qualify a crime as a hate crime, which is good news for the transgender community. However, what if discrimination against transgender individuals can be stopped before a violent act occurs? What if the means to accomplish this already exist within the legal system?

Title VII of the Civil Rights Act of 1964 offers protection against discrimination in the workplace based on certain enumerated characteristics, sex being one of them. Title VII's aim is to ensure that employment decisions are not made based on any characteristic other than an employee's or applicant's qualifications for the job. Through these protections, we ensure that our workplace is diverse and that each individual hired or promoted is the best candidate for that position. Title VII can also play a broader role in governing society, without becoming a general code of civility. We aim to regulate the workplace not just out of concern for economic productivity but also because workplace regulation is a way in which we can purge individuals of their stereotypes and teach them to work with and interact with people they would not ordinarily, in hopes that what they learn will translate to other aspects of their daily lives. Perhaps if Allen Ray Andrade had more exposure to transgender individuals in this manner, this violent act would have been prevented.

There is clear evidence that transgender individuals often experience discrimination at some point during the employment process. Thirty-seven percent of transgender individuals nationwide report having experienced some form of employment discrimination. (4) A 2003 survey of the transgender population in San Francisco revealed that one in two individuals who identify as transgender have experienced employment discrimination s When confronted with cases of clear discrimination against transgender individuals, most federal courts have refused to extend protection to them under Title VII on the basis of sex. Courts rely on a trilogy of cases decided several years after Title VII was passed that interpret "sex" narrowly, and rely on outdated notions of how we now understand that term. Since those cases were decided, Title VII jurisprudence has expanded the meaning of "sex" from simply male or female to include notions of sex stereotypes and gender non-conformity. The courts have recognized claims for pregnancy discrimination, male on male sexual harassment, and so-called sex-plus claims, all of which transcend traditional interpretations of what discrimination "because of sex" means under Title VII. Yet when it comes to transgender plaintiffs, the courts revert to a strict interpretation of Title VII's language. Because one's gender identity is inherently part of one's sex, sex discrimination should necessarily include discrimination based on gender identity. Title VII's prohibition on sex discrimination has already been interpreted broadly in many types of cases, and the courts' withholding of that broad interpretation for transgender individuals undermines much of the modern sex discrimination jurisprudence as well as the goals of Title VII itself as a remedial statute.

Part I of this Note will explore the meaning of "transgender" as it is currently understood in the medical and psychological professions as well as within current LGBT communities. Part II will explore the current legal landscape of the federal circuits' interpretation of Title VII's prohibition of sex discrimination in the workplace in general as well as how this interpretation specifically applies--or, more often does not apply--to transgender employees. This section will also argue that the sex stereotyping claim alone is an insufficiently narrow cause of action for transsexual plaintiffs. Part III of this Note will explore the ways in which state and local governments have reacted to interpretations of Title VII in interpreting their own employment and human rights laws or in drafting their own gender identity discrimination legislation and will suggest that federal courts heed the states' approach in interpreting anti-discrimination legislation as remedial and therefore broad. Part IV of this Note will focus on the implications of the debates surrounding the Employment Non-Discrimination Act (ENDA), its ultimate failure to include gender identity discrimination, and whether this failure will or should have broader consequences for the interpretation of what constitutes sex discrimination under Title VII. Part V will then argue that the solution to finding a federal remedy for gender identity discrimination is through a broader interpretation of "sex" under Title VII in order to allow transgender employees a cause of action "because of" their transgender status and not simply through the often rejected and problematic gender stereotyping line of cases. This section will also suggest that because "sex" under Title VII has already been interpreted quite broadly with respect to other kinds of sex discrimination claims, transsexual plaintiffs have been categorically excluded from a logical protection under the "because of sex" cause of action.

I. WHAT IS TRANSGENDER?

As the transgender movement has gained momentum over the past thirty years, (6) the term transgender has taken on many different incarnations. (7) In most LGBT circles, transgender is used as an umbrella term that includes people who experience or express their gender in a way that runs against conventional expectations of how one should perceive and express his or her gender in relation to the sex listed on one's birth certificate. (8) In other words, transgender means that a person's physiological sex is different from his or her psychological perception or expression of his or her sex. (9) The term transgender has been used to describe individuals who identify as transsexuals or cross-dressers, as well as other gender-variant individuals. (10) Transsexuals are individuals who have changed or who are in the process of changing their physical sex to conform to their inner sense of gender identity. (11) The term transsexual can also refer to individuals who live full-time as a gender that is different from the one assigned to them at birth, but who do not undergo surgical procedures to alter their physical sex. (12) Cross-dressers are people who wear the clothing usually worn by persons of the sex opposite to the one assigned to these individuals at birth. (13) Cross-dressers typically do not change their physical characteristics permanently, nor do they live full-time as a member of the opposite gender. (14)

The gender transition process for transsexuals can include any of the following steps: hormone therapy, sex reassignment surgery, telling one's friends, family and co-workers, and changing one's name and/or gender on legal documents. (15) Gender transitions are usually supervised by a medical professional and are carried out according to regimented standards that have been developed by the medical community. (16) The most commonly followed standards of care were developed by the Harry Benjamin International Gender Dysphoria Association, which is now known as the World Professional Association for Transgender Health (WPATH). (17) These standards are generally highly successful, as very few transsexuals who undergo gender reassignment surgery report experiencing regret. (18) The Human Rights Campaign observes that the degree of success of a gender transition is often strongly influenced by a person's ability to maintain a stable job and income during the transition, as well as by support within the work environment. (19)

Many transsexual individuals experience extreme discomfort from their internal sense that their gender identity does not match their physical bodies. (20) The medical profession has labeled this discomfort as "Gender Identity Disorder" (GID). (21) This condition has also been known as "gender dysphoria," and the two terms are often used interchangeably. (22) The American Psychiatric Association lists GID as a mental disorder in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). (23) Transgender individuals do not always seek a diagnosis of GID because it carries a significant social stigma, as it labels them "disordered." (24) Many transgender people also do not seek a diagnosis because it is often done in preparation for sex reassignment surgery, and this surgery may not be an option financially for many transgender individuals, not to mention the medical risks involved with surgery. (25)

The transgender population in the United States has never been measured concretely. (26) There are studies that have attempted to measure the number of transgender individuals in the population, but most are based on the number of transsexuals that seek sex reassignment surgery. (27) In evaluating these studies, which report the number of transsexual people to range anywhere from 0.25 to one percent of the population, the Human Rights Campaign observed that they likely underestimate the actual transsexual population. (28) The studies do not account for transsexuals that either have not undergone sex reassignment surgery, cannot have the surgery due to medical or financial reasons, or simply elect not to have the surgery. (29) A recent study conducted at the University of Michigan found that 1 in every 2,000 to 4,500 people is a male to female transsexual. (30) Though, the researchers point out that since many transsexuals do not come out to themselves or others, this range may be more along the lines of 1 in 1,000 to 2,000. (31) This study also points out that more recent reports have estimated the number of male to female …