News & Information

EMPLOYMENT LAW — 5/25/06

Transsexual may have Title VII discrimination claim

Although a transexual plaintiff's allegations of sex stereotyping failed to state a claim under Title VII, an employer's motion to dismiss was denied because discrimination against a transsexual may nevertheless violate Title VII's proscription of discrimination "because of...sex," ruled a federal district court in the District of Columbia. (Schroer v Billington, DDC, 87 EPD ¶42,334)

The plaintiff, a male-to-female transsexual, applied for a position as a terrorism research analyst with the Congressional Research Service (CRS) as a man and dressed in traditionally masculine clothing for the job interview. The plaintiff was highly qualified for the position with extensive military and anti-terrorist experiences, including being appointed the director of a 120-person classified organization charged with tracking and targeting high-threat international terrorist organizations after the September 11, 2001 terrorist attacks. After retiring from the military, the plaintiff became a senior analyst and program manager at a private consulting firm where she worked with the National Guard on infrastructure security issues.

After the job offer, the plaintiff was invited to the office to discuss administrative details and be introduced to some of her future colleagues.

Up to this point, the plaintiff had been using her traditionally masculine legal name and had interacted with the employer wearing traditionally masculine clothing. As part of her treatment for gender dysphoria, she was about to begin the initial stages of the sex-reassignment protocol recommended by her physician. This meant she would be using a traditionally feminine name, dressing full-time in traditionally feminine attire and would begin living and presenting herself as a woman. The plaintiff decided to explain that she was under a doctor's care for gender dysphoria and that she would be presenting herself as a woman when she started to work. To reassure her employer that she would dress appropriately, the plaintiff showed photographs of herself dressed in traditionally feminine workplace-appropriate attire. Although a CRS representative did not indicate the plaintiff's situation would be a problem, the representative said the plaintiff had "really given [her] something to think about."

The next day, the representative told the plaintiff that given her circumstances and "for the good of the service," the plaintiff would not be a "good fit" at CRS. The representative thanked the plaintiff for her honesty and the manner in which she had handled the situation. The plaintiff filed a Title VII sex discrimination lawsuit.

The district court noted that, until very recently, all federal courts squarely facing the issue had held that Title VII does not prohibit discrimination on the basis of transsexualism or gender identity. Those cases were based on the reasoning of Congressional intent, finding that Congress has a "narrow view of sex in mind" and "never considered nor intended that this 1964 legislation apply to anything other than the traditional concept of sex."

Adverse action taken on the basis of an employer's gender stereotype that does not impose unequal burdens on men and women or disadvantage one or the other does not state a claim under Title VII.

The plaintiff claimed that she was not hired either because the employer perceived her to be a man who did not conform with gender stereotypes associated men in out society or because the employer perceived her to be a woman who did not conform with gender stereotypes associated with women in our society.

A transsexual plaintiff might successfully state a Price Waterhouse-type claim if the claim is that he or she has been discriminated against because of a failure to act or appear masculine or feminine enough for an employer but such a claim must actually arise from the employee's appearance or conduct and the employer's stereotypical perceptions. Such a claim was not stated here, where the complaint alleged that the plaintiff's nonselection was the direct result of her disclosure of her gender dysphoria and of her intention to begin presenting herself as a woman, or her display of photographs of herself in feminine attire, or both. Even if Price Waterhouse has created a Title VII claim for discrimination against men solely because they wear dresses and makeup, the logic of such a rule does not extend to situations where the dress and makeup are intended to express and are understood by the employer to be expressing a female identity.

Accordingly, the employer's motion to dismiss was denied.

For more information on this and other topics, consult CCH Employment Practices Guide or CCH Labor Relations.

Visit our News Library to read more news stories.