Since 1975, Congress has considered amending Title VII to include a ban on employment discrimination based on sexual orientation. Most of the first employment discrimination cases brought by transgenders were dismissed because there is no federal law designating transgender as a protected class, or specifically requiring equal treatment for transgendered people. Until recently, Title VII’s lack of legislative history and failed attempts by Congress to introduce or pass gender identity employment discrimination legislation left courts with little reason to deviate from precedent. Recent landmark cases have demonstrated that courts can successfully transcend societal prejudices and expand sex discrimination to cover discrimination against transgendered people. For the most part, gender discrimination cases arise under Title VII because it is enforceable against a vast majority of employers. In contrast, two of the cases discussed below include claims based on the Fourteenth Amendment’s Equal Protection Clause which protects only against discrimination by government employers.
Smith v. City of Salem
Jimmie Smith is a transsexual, diagnosed with Gender Identity Disorder (GID)[i]; he was born a biological male, but has a female sexual identity. After being diagnosed he began expressing a more feminine appearance on a full-time basis, including while at work at the Salem Fire Department. Smith notified his immediate supervisor when co-workers began questioning his appearance and commenting that his mannerisms were not masculine enough. Smith requested the conversation be kept confidential. Against his wishes, the chief of the fire department was informed, followed by the law director of the city. During a meeting with the City’s executive body on April 18, 2001, the likelihood of Smith completing a physical transformation from male to female was discussed, along with a plan to terminate his employment. The group agreed to require Smith to participate in three psychological evaluations in hopes that he would resign or refuse to comply. On April 20, legal counsel retained by Smith informed the City’s executive body of the legal ramifications of proceeding with their plan. Six days later Smith was suspended for a full twenty-four hour shift based on an alleged infraction of department policy. Smith viewed the suspension as a pretext for sex discrimination and as retaliation for obtaining legal counsel and filing a compliant with the Equal Employment Opportunity Commission (EEOC). As a result of these incidents he filed suit against the City of Salem under Title VII of the Civil Rights Act of 1964.[ii] The trial court dismissed the suit on the grounds that Title VII protection is unavailable to transsexuals.[iii] On appeal, the Sixth Circuit of the Supreme Court reversed the district court ruling, noting that it relied on a series of pre-Price Waterhouse decisions.[iv] In such cases federal appellate courts regarded Title VII as barring discrimination based only on sex, not on gender. The landmark case of Price Waterhouse v. Hopkins[v], established a claim of sex stereotyping for employees who suffer adverse action for failing to conform to the stereotypical gender expectations. Based on this decision, the Sixth Circuit opinion states, After Price Waterhouse, an employer who discriminates again a woman because, for instance, they do not wear dresses or make-up, is engaging in sex discrimination because the discrimination would not occur but for the victim’s sex. It follows that employers who discriminate against men because they do wear dresses and makeup, or otherwise act femininely, are also engaging in sex discrimination, because the discrimination would not occur but for the victim’s sex.[vi]
The Sixth Circuit held that a self-identified transsexual can sue for sex discrimination under Title VII on the...