Can Transsexuals Sue Their Employers For Sex Discrimination?

By SHERRY F. COLB

Wednesday, Nov. 16, 2005

On Monday of last week, the United States Supreme Court denied review in the case of Barnes v. City of Cincinnati. The case raised the issue of whether transsexuals can invoke federal antidiscrimination laws to address their mistreatment at the workplace.

The Court's decision is a victory of sorts for Philecia Barnes, born Phillip Barnes. Barnes had sued the Cincinnati Police Department under Title VII of the 1964 Civil Rights Act, alleging that her failure to obtain the rank of police sergeant resulted from hostility to her inability - as a transsexual - to conform to sex stereotypes. A jury found in Barnes' favor, and the U.S. Court of Appeals for the Sixth Circuit upheld the jury's finding.

The issue of whether federal antidiscrimination law indeed protects transsexuals, presents an important opportunity to consider competing visions of what anti-discrimination law is supposed to accomplish and what a desirable freedom from sex discrimination at work (and in general) might look like.

The Race Model: Is Sex Discrimination the Same As Race Discrimination?

One approach to sex discrimination is to say that it is just like race discrimination. In both cases, a person comes into the world with a race or gender that is not easily altered. But in spite of real differences in physical appearance between people of different racial groups or people of different genders, much of what constitutes the "difference" between people has more to do with socially constructed modes of behavior and dress than it does with biology.

In almost every instance, moreover, a decision about whether an employee should be fired or promoted at work ought not to turn at all on that person's race or gender. In other words, whatever biological facts might factually distinguish people of distinct races or genders should rarely, if ever, affect an employer's treatment of an employee.

Departing From the Race Model: Is Sex Discrimination Less Invidious?

A competing approach to sex discrimination is to suggest that it is quite different from race discrimination. The difference, on this account, is that people belonging to distinct racial groups are not in fact distinct from one another in any biologically significant way.

People of African descent, for example, are as different from each other as any one of them is from a random person of European descent. To speak of different races, then, is to engage in a culturally meaningful but biologically meaningless discourse.

The sexes, by contrast, truly are meaningfully different from each other, anatomically and chemically, and these differences might sometimes justify differential treatment that would be inappropriate in the case of race. Under this model, there is greater room for legitimate sex discrimination than there is for legitimate race discrimination.

An Example: Sex-Segregated Restrooms

One example that illustrates the difference between the two approaches outlined above is segregated restrooms. In the case of race, almost everyone would agree that an employer who required employees of different racial groups to use different restrooms would be engaged in blatantly illegal (and morally outrageous) conduct. In the case of sex, however, most employers continue to provide separate restrooms to their employees, a practice that does not generally raise eyebrows.

The "sex is just like race" approach would find separate restrooms objectionable. It would hold that as a society, we have come to accept separate restrooms for men and women only because we buy into gender stereotypes that are, in fact, destructive and frequently false. Proponents of this view would suggest that separate restrooms can unfairly disadvantage women. One might observe, for instance, that because men and women use separate restrooms, and because men are provided with urinals, women are much more likely to have to wait in line to use the restroom. As a result, women's accommodations at work are arguably inferior to those of men. This is certainly true in many theaters, where the lines to the women's room prevent female customers from being able to use the bathroom and return to their seats before the end of intermission.

At work, moreover, people regularly discuss business in the restroom, and women are shut out of that component of networking with their male counterparts. The common response that women prefer a separate restroom for "modesty" reasons and for safety reasons assumes, perhaps wrongly, that a unisex bathroom could not be built to accommodate modesty and safety and that once people overcame the initial unfamiliarity of it, a common restroom might not serve women better.

In support of the "sex is like race" view of restrooms, there is nothing about a woman's anatomy or physiology that requires that she use a bathroom limited to members of her own sex. The same could be said of modes of dress - there is nothing inherent in the fact of being a woman or the fact of being a man that should dictate that some clothing is off limits.

Such differences, instead, are cultural, and because much of what is culturally "feminine" corresponds historically with second-class citizenship and the denial of equal status, we should presume that gendered clothing requirements are invidious, as are separate restrooms.

The Case of the Transsexual: The Plaintiff Sees Sex as Essential, But Should the Law?

This brings us to the case of the transsexual, which is inherently challenging in a sense. The transsexual - almost by definition - accepts the notion that there are important differences between men and women. A person who seeks sexual reassignment surgery and hormone treatment ordinarily does not believe that one's sex is either entirely or largely irrelevant to the way one lives one's life. Instead, the transsexual tends to embrace the idea that women and men really are very different. It is because of this difference that a person who experiences himself or herself as "truly" being of the opposite sex will remain unhappy until he or she can physically become that sex.

In this respect, the transsexual is very "essentialist" about gender. While many feminists contest the true centrality of biological sex - except in maintaining cultural hierarchy - transsexuals tend to feel that there is, indeed, a fundamental divide between masculinity and femininity, and they wish to relocate to the other side of that divide. Rather than blurring or challenging the lines between men and women, transsexuals affirm those lines and seek out surgery designed to cross them.

The gender essentialism of the transsexual is challenging, because a more radical view of gender - as almost entirely irrelevant - offers the most promise to him or her of freedom from sex discrimination. If everyone has the right to use the same bathroom, for example, then the transsexual will not have to face a battle over whether a person who was born a biological male should be allowed to use the ladies' room. And if everyone can dress in as masculine or feminine a manner as he or she pleases, then the male-to-female transsexual's preference for women's clothing will not generate complaints.

The punitive events likely to confront the transsexual at work, in other words, result from the very essentialism - the view that "girls are girls and men are men" articulated by the Archie Bunker character in "All In the Family"- that transsexuals may uncritically adopt. And the legal position that males should be masculine and females, feminine - which transsexuals might share - could have the effect of excluding them from the coverage of antidiscrimination law, by virtue of their "incorrect" sexual identification.

I once attended an academic conference at which a male-to-female transsexual scholar presented a paper. This scholar wore a lot of makeup and very stereotypically feminine clothing. As I listened to other women at the conference speak in private settings, I kept hearing the same complaint: this transsexual thinks of womanhood as an exaggerated caricature of feminine characteristics. She does not understand that what makes us "women" is having been treated as women by other women and by men all of our lives. Sexual reassignment surgery, on this view, could never turn a man into a woman, because it is not biology, but gendered life experience, that makes us who we are.

My reaction was to share the skepticism about the ability of surgery to make a grown man into a woman. Nonetheless, I felt very sad for the transsexual scholar, because she so badly wanted to be included in our midst and seemed to be facing the very sort of rejection that may well have convinced her to become a woman in the first place.

The Better View: Transsexuals May Sue Under Title VII

There are tensions, then, between a transsexual's view of gender and the resistance to stereotypes that a robust view of Title VII entails. Notwithstanding that tension, however, I think the correct way to resolve the dilemma is to allow a transsexual to sue under Title VII.

Every one of us has some choice about how strongly we wish to identify with the stereotypes that define our gender. If I enjoy wearing high heels, long hair, makeup, and dresses, I should be able to act accordingly without jeopardizing a promotion at my job. And similarly, if I prefer to wear androgynous clothing and cut my hair short, then those preferences should similarly engender no retaliatory treatment at work.

The transsexual may police gender lines in himself or herself just as rigidly as does the misogynist who persecutes the transsexual. The difference, however, is that the law should not regulate how we view ourselves, but it must regulate how we treat others. A man who does not fit a "macho" stereotype might punish himself for that failure, but that inability to liberate himself from gender's cultural mandates does not justify an employer's coercive imposition of those mandates on an employee.

Part of what it means to avoid discriminating on the basis of gender is a willingness to allow employees to sort out their own gender identifications without the threat of job consequences. And that is, in essence, what the United States Supreme Court said in Price Waterhouse v. Hopkins. If a woman cannot be denied partnership at her firm on account of masculine characteristics, then a history of having previously been a man and a failure currently to conform to gendered expectations should not preclude a promotion either.

In sum, the Sixth Circuit Court of Appeals was right to decide the case as it did, and when the Supreme Court some day addresses this issue, it should affirm the freedom of transsexuals and others to explore and define their own gender identity.


Sherry F. Colb, a FindLaw columnist, is Professor and Frederick B. Lacey Scholar at Rutgers Law School in Newark. Her columns on constitutional criminal procedure, discrimination, abortion and the right of privacy, among other subjects, may be found in the archive of her work on this site.

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