Transgressions of Inequality: The Struggle Finding Legal Protections against Wrongful Employment Termination on the Basis of the Transgender Identity

By Marino, Anton | The American University Journal of Gender, Social Policy & the Law, July 1, 2013 | Go to article overview

Transgressions of Inequality: The Struggle Finding Legal Protections against Wrongful Employment Termination on the Basis of the Transgender Identity


Marino, Anton, The American University Journal of Gender, Social Policy & the Law


I. INTRODUCTION

What defines a man or a woman? What are the differences between the two? Stereotypically, a man is seen as handsome, strong, instinctive, and assertive. In contrast, a woman is often described as beautiful, soft, patient, and understanding. Notwithstanding these archaic understandings of sex and gender-based stereotypes, who has the authority to say that a man cannot be whatever a woman is and that a woman cannot be whatever a man is?

How we each individually identify as human beings directly affects how we operate as a civilization, as a society, and as a species.1 This core sense of "self" governs how we traverse through our daily lives.2 What happens, however, when the way we construe our inborn identity is in direct conflict with the way others perceive our identity? To members of the transgender community, this conflict is inescapable, and the law has provided little protective recourse for such conflicts as they arise within the workplace- resulting in a gravely uncertain situation for transgender employees.3

For at least thirty-four years, members of the transgender community have struggled to assert legal protections that preclude employers from engaging in discriminatory conduct ultimately resulting in their termination.4 This discriminatory conduct originates in the same sex- normative stereotypes-stereotypes that mandate how the male and female sexes are "supposed" to behave and how the bodies of a man and woman are "supposed" to appear-that have fueled the unequal treatment of not just transgender people, but also female, lesbian, gay, and bisexual people.5

As a result, the use of workplace restrooms, one of the last spaces segregated on the basis of a sexual binary,6 has created glaring psychological and physical harms for members of the transgender community.7 Moreover, because the discrimination faced by members of the transgender community is indelibly connected to the issues of gender and sex, workplace bathroom use and sex-specific workplace attire emphasize how innate identity and the way others perceive the trans- identity are in direct conflict.8 Thus, transgender individuals' workplaces have developed into battlegrounds on which the fight for transgender equality has, in large part, been disastrous.9

Federal appellate courts are divided over whether an employer may terminate a transgendered employee's occupational post on the basis of his or her status as a transgender individual irrespective of protections that Title VII of the Civil Rights Act of 1964 may provide.10 This split of authority originates from the judiciary's conflation and disaggregation of the meaning of sex and gender as well as its failure to recognize that gender operates as a continuum along which male and female represent the extremes, and not as a restrictive binary construct of male and female.11 "Gender discrimination" is substantially more complex than conduct resulting in the disparate treatment of an individual premised on the prejudices regarding that person's sex. "Gender discrimination" attacks the very core of an individual's innate identity and that individual's ability to manifest his or her own destiny. Accordingly, "gender discrimination" is a violation of an individual's substantive due process right to liberty.12

This Article will proceed in five parts. Part II wrestles with the definitions of sex and gender and explains why the failure to explicate the complexity of these terms is particularly pernicious to the transgender individual. Part III traces the failure of the Supreme Court's "gender discrimination" jurisprudence to provide a workable standard that combats the legal disparities suffered by those whose identities are classified as "the others."13 It provides a detailed examination and evaluation of why the Court's simultaneous conflation and disaggregation of sex and gender and its failure to recognize a gender continuum reaffirms the socially-created inferiority of women, homosexuals, bisexuals, and transgender people. …

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