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Court dodges whether sex stereotyping theory applies to transsexuals

The Tenth Circuit Court Appeals affirmed the dismissal of a transsexual employee's Title VII claim, choosing not to decide whether discrimination based on an employee's failure to conform to sex stereotypes always constitutes discrimination "because of sex" and whether such a claim may extend Title VII protections to transsexuals who act and appear as a member of the opposite sex. The plaintiff, who was a male-to-female transsexual, worked as a bus operator for a state transit authority. She alleged that she was terminated because she was transsexual and because she failed to conform to her employer's expectations of stereotypical male behavior. (Etsitty v Utah Transit Auth, 10thCir, 90 EPD ¶42,994)

Initially, the circuit court concluded that based on the plain language (and not the primary intent) of Title VII, discrimination against a transsexual based on that person's status as a transsexual is not discrimination because of sex under Title VII. "Scientific research may someday cause a shift in the plain meaning of the term 'sex' so that it extends beyond the two starkly defined categories of male and female," the court wrote. However, at this point in time, transsexuals are not a protected class under Title VII, the Tenth Circuit ruled.

The bus operator argued that even if transsexuals were not entitled to protection under Title VII, she still had a Title VII claim based on her assertion that she was discharged for failing to conform to social stereotypes about how males should act and appear. The Tenth Circuit assumed, without deciding, that such a claim was available to her and found that she established a prima facie case. However, the circuit court held that the employee's claims were properly dismissed by the district court because she failed to establish that the employer's stated reason for her discharge—her expressed intent to use public women's restrooms along her route (risking liability for her employer) while she was still physically a male—was pretextual. "However far Price Waterhouse reaches, this court cannot conclude it requires employers to allow biological males to use women's restrooms. Use of a restroom designated for the opposite sex does not constitute a mere failure to conform to sex stereotypes," the Tenth Circuit wrote.

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

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