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

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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. …


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