Recent Firings Serve as a Reminder of the Employment Struggles Unjustly and Sometimes Illegally Faced by Transsexuals

By JOANNA GROSSMAN

Tuesday, Mar. 20, 2007

Steven Stanton -- a confirmed transsexual and the city manager of Largo, Florida -- was recently put on administrative leave, pending being fired by the City Commission. News of his preparation for sex-reassignment surgery had sparked a vigorous, mostly negative response from Largo residents - ranging from nasty e-mails sent to City Commissioners, to eggs thrown at Stanton's car.

Around the same time, Julie Nemecek, an assistant dean and associate professor at Spring Arbor University in Michigan, was fired, allegedly because she, too, was in the process of transitioning from male to female.

Do either of these transsexuals have legal recourse against their employers? Julie Nemecek might, but only because she lives within the jurisdiction of the lone federal court to recognize that Title VII prohibits employers to discriminate on the basis of transsexualism. In contrast, because Steven (soon to be "Susan") Stanton lives in a more typical and thus more unfriendly jurisdiction, he will probably be unable to hold the City of Largo accountable for his firing, even though circumstances suggest that it was discriminatory.

Transsexualism and the Law: Common Obstacles to Acceptance

Transsexuals are individuals whose gender identity differs from their anatomical sex, a condition often characterized as gender dysphoria or gender identity disorder. The category "transsexuals" includes both those who have had sex reassignment surgery and those who have not; a male-to-female transsexual can live out her entire life identifying as a woman without ever actually going under the knife.

Transsexuals face a variety of legal obstacles. One set of obstacles involves efforts to change one's legal gender, through re-issuance of a birth certificate and related legal forms of identification. This issue turns on a difficult question: Is sex something that can be changed? Without express legislative authority, courts have been reluctant to say yes. Some states permit post-operative transsexuals to get a new birth certificate reflecting their new anatomical sex, but the rest refuse.

A few months ago, the Board of Health in New York City came very close to adopting an even more progressive regulation: It would have permitted individuals to have their birth certificates re-issued to reflect a different sex whether or not they had undergone sex reassignment surgery, as long as they had "lived" as a member of the opposite gender for a sustained period of time. At the eleventh hour, however, the Board rescinded the proposed regulations, admitting that it had never considered basic questions such as whether prisoners who identified themselves as female, but retained male genitalia, would be housed with other female prisoners.

A second set of obstacles for transsexuals involves marriage rights. (I have written about both legal identification and marriage rights for transsexuals in a previous column.) The conundrum for transsexuals, most of whom are not homosexual, is that most courts have said that birth sex cannot be changed for purposes of marriage. Thus, an individual who was born a man cannot legally marry another man- even if "he" is now a "she" and has female genitalia, dress, and appearance.

Transsexuals and Employment Discrimination: An Unfriendly Terrain

Perhaps just as important as the problems transsexuals face with respect to legal identity and marriage is their precarious status in the workplace. Stanton's case epitomizes the plight of transsexual employees - who are often victims of openly hostile and bigoted environments, yet typically have no legal recourse. Nemecek's case, however, illustrates the potential for fairer treatment of transsexuals at work, through a broader anti-discrimination law.

Transsexuals have generally been unsuccessful in establishing rights under federal anti-discrimination laws. Most courts have held that neither transsexuals, nor gays and lesbians, comprise a protected class under Title VII. Efforts to enact federal legislation to protect against both these forms of discrimination have been undertaken, but thus far have been unsuccessful.

Fourteen states have adopted statutes banning sexual orientation discrimination, but only four of those statutes explicitly extend to discrimination on the basis of transsexualism. Many cities, however, protect transsexuals against discrimination through local ordinances.

Unfortunately for Stanton, Florida is not one of the states that protects transsexuals, nor is Largo one of the cities. (This is not necessarily surprising, given that Florida is infamous for being the only state that explicitly bans all homosexuals from adopting children.) Stanton, thus, has neither federal, nor state, nor local protection against suffering employment discrimination on the basis of his transsexualism. He hasn't yet threatened to sue, but that may simply reflect his realistic assessment of his low chances of prevailing.

Protection for Transsexuals: One Friendly Jurisdiction, and a Favorable Supreme Court Case

Nemecek has a better prognosis for her discrimination suit, and seems to be aware of that fact: Unlike Stanton, she has filed a complaint with the EEOC, an act that is the required precursor to filing a lawsuit. Her situation is legally more complicated than Stanton's, but more likely to work out in her favor.

Nemecek is fortunate that, unlike Stanton, she can invoke the 2004 ruling from the U.S. Court of Appeals for the Sixth Circuit (in whose jurisdiction the state of Michigan falls) in Smith v. City of Salem. In that case, a transsexual firefighter argued that he had suffered adverse employment actions and retaliation because of a gender identity disorder that led him to "express a more feminine appearance on a full-time basis," including at work. Contrary to rulings from several other federal appellate courts, the Sixth Court ruled that the plaintiff was indeed discriminated against on the basis of his sex, as Title VII requires, when he suffered discrimination on the basis of his transsexualism.

In what way does firing a transsexual employee constitute sex discrimination? The roots of the theory lie in Price Waterhouse v. Hopkins, the decision in which the Supreme Court ruled that sex-stereotyping in the workplace is actionable under Title VII. In that case, a very successful woman employee at Price-Waterhouse was turned down for partnership at least in part because she wasn't "feminine" enough. Despite her superb rainmaking abilities, partners at the firm charged with evaluating her criticized her for being "too macho" and advised her to wear more jewelry and go to charm school.

That sort of gender policing, the Court ruled, violates Title VII. A woman should not have to "act like a woman" (particularly a stereotypical one) in order to keep her job if she's otherwise good at it. In a quote that's often repeated, the majority observed that: "[W]e are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associate with their group."

This was a watershed case in sex discrimination law and, yet, it has been underutilized as a precedent in the 18 years since it was decided.

Granted, this precedent has enabled some gay male employees to successfully challenge harassment or other forms of discrimination even though Title VII has been held not to protect against sexual orientation discrimination. Thanks to Price-Waterhouse v. Hopkins, if an effeminate gay male is singled out for adverse treatment, whether by the employer or by co-workers who harass him, he can allege illegal sex-stereotyping. In Nichols v. Azteca Restaurant Enterprises, Inc., for example, the U.S. Court of Appeals for the Ninth Circuit concluded that harassment of a gay, male employee reflecting hostility toward him because he was too "feminine" constituted illegal sex-stereotyping. (I considered this legal theory further in an earlier column).

But that theory is of no use for gays and lesbians who do conform to gender expectations. The simple fact that they may choose a same-sex partner has not been treated as "gender" nonconformity with the meaning of Price-Waterhouse, even though stereotypes still hold that they should choose an opposite-sex partner instead.

One might predict that the limited protection for gays and lesbians under Title VII bodes poorly for transsexuals, an even more ostracized gender minority. However, the premise of Price-Waterhouse - that employers cannot punish employees for gender non-conformity - is actually a better fit for discrimination on the basis of transsexualism, than for discrimination on the basis of sexual orientation. After all, gender non-conformity is the essential trait of transsexualism, while many gays and lesbians do not exhibit it.

The Sixth Circuit in Smith relied on this reasoning to hold that the transsexual firefighter was protected by Title VII. Discriminating against a male who assumes a female identity is a form of gender policing as well, it concluded: According to stereotype, a "real" man wouldn't "switch" genders away from the one assigned to him at birth, and so a man who does so is singled out for maltreatment.

The ruling in Smith will likely dictate a favorable outcome for Nemecek, though her case could be complicated by Title VII's treatment of religious institutions. In answering her EEOC complaint, the University alleged that the firing was permissible because Title VII permits religious institutions to discriminate on that basis. According to the University, this exemption includes the right to fire faculty who "persist in activities that are inconsistent with the Christian faith." The University has two uphill battles here, however: proving that it is an exempt institution under Title VII, and, even if it is, proving, as well, that the exemption includes the right to exclude "bad" Christians in addition to non-Christians.

Transsexuals Deserve Full Legal Protection Against Discrimination

In sum, while there may be some recourse for those within the range of the Sixth Circuit's jurisdiction, the overwhelmingly majority of transsexual employees still face hard times in the current legal regime.

Thus, though an obvious target for bigotry and discrimination, transsexuals have little or no protection against it. Price-Waterhouse provides a way out of this regime, and a mandatory one at that. No court should be able to justify refusing to protect employees against transsexual discrimination, since the very essence of it is precisely the kind of gender policing that Price Waterhouse stressed was a noxious form of gender discrimination.


Joanna Grossman, a FindLaw columnist, is a professor of law at Hofstra University. Her columns on family law, trusts and estates, and discrimination, including sex discrimination and sexual harassment, may be found in the archive of her columns on this site.

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