In February of 1964, the Civil Rights Act was on the cusp of passing in the House of Representatives.1 Representative Howard Smith, a staunch opponent of the bill, was losing ground, and it looked as though equal employment opportunity would become a reality.2 "But Howard Smith had one last arrow in his quiver - perhaps 'bombshell' would be a better term."3 In what is dubbed "Ladies Day," Representative Smith, in "a mocking and jocular tone," moved to add "sex" to Title VII.4 Representative Smith's addition to Title VII was "to prevent discrimination against another minority group, the women."5 As explained by commentators, "[c]ertainly Smith hoped that such a divisive issue would torpedo the civil rights bill, if not in the House, then in the Senate."6 This last minute attempt to defeat the civil rights legislation by adding the term "sex" failed and the Civil Rights Act of 1964 passed both the House of Representatives and the Senate.7
As noted by Justice William Rehnquist, the "prohibition against discrimination based on sex was added to Title VII at the last minute on the floor of the House of Representatives."8 Due to the last minute addition, "we are left with little legislative history to guide us in interpreting the Act's prohibition against discrimination based on 'sex.'"9 When Congress enacted Title VII, it was well-accepted that the term "sex" as it is used in the Act referred to a female and a male. There also seems to be little doubt that the reference to sex was primarily meant to provide equal employment opportunity protection to women in the workforce. However, without a clear guideline within the statute regarding the term "sex" and what protections are covered by the term, the courts and employers have been forced to participate in a virtual guessing game as to just how far they should go in order to assure their compliance with the Act. For instance, it was not until the late seventies, some ten years after the passage of Title VII, that sexual harassment as a form of prohibited sex discrimination was recognized.10
Sexual harassment claims are only one of the many expansions of Title VII coverage since the inception of the Act. The purpose of this article is to trace the trajectory of state and federal law regarding the possible expansion of equal employment protections for transgender employees and applicants and the issues that will arise with such an expansion.
The authors would like to note in the opening that for the purposes of this article we will interchange the usage of the terms transsexual and transgender. While we recognize that the terms have different meanings, it is difficult to imagine any scenario in which one would be covered by Title VII and not the other; therefore, the terms are used interchangeably. Further, the authors are not discussing "sexual orientation," which is not correctly classified as a gender "disorder."11 "Although transgenderism is often conflated with homosexuality, the characteristic, which defines transgenderism, is not sexual orientation, but sexual identity. Transgenderism describefs] people who experience a separation between their gender and their biological/anatomical sex."12
Section II of this article addresses the case for exclusion and inclusion of transsexuals as a protected class under Title VII. The purpose of Section II is not to advocate for inclusion or exclusion, but rather to explore the current state of the law regarding transsexual rights. Section III of this article briefly addresses transsexual rights in the state court arena. Section IV addresses some practical implications for inclusion, whether it comes by legislative amendment or recognition by the courts. The scope of this article is to identify and elaborate on potential legal issues and lay the foundation for providing a workable solution.
II. ARE TRANSGENDERED PERSONS COVERED UNDER TITLE VII?
The first step for both proponents and opponents of inclusion begins by analyzing what falls within "sex" under Title VII. …