WHEN THE WORKPLACE ISNT A SAFE PLACE: THE LIMITATIONS OF

COURT DECISIONS PROTECTING TRANSGENDER RIGHTS & EXPRESSION IN THE

WORKPLACE

I.

It

INTRODUCTION

shall

be

employer. . .

an

unlawful

employment

practice

for

an

to fail or refuse to hire or to discharge any

individual, or otherwise to discriminate against any individual

with

respect

privileges

of

to

his

compensation,

employment,

because

of

terms,
such

conditions,

individual's

or

race,

color, religion, sex . . .- 42 U.S.C.A. 2000e-2(a)(1).

The language of Title VII, as quoted above, has had enormous

impact on the legal history of the transgender rights movement in
the United States. However, there is no further clarification
within the words of the statute as to its precise sweep: it may
be read to protect against discrimination on the basis of sexual
1

orientation, as well as discrimination on the basis of gender. If

we construe Title VII in the narrowest and most traditional
sense, it prohibits discrimination merely on the basis of sex, or
gender. However, this then raises another question as to whether
sex is to be defined as biological sex. This question strikes
at the very heart of the ongoing discussion over transgender
rights. In order to answer it, one must also consider how we are
to define the word transsexual, or transgendered itself.

Transsexualism is a condition that exists when an otherwise

mentally healthy person experiences discomfort or discontent
about nature's choice of his or her particular sex and prefers to
be the other sex.1 The individual also tends to desire
procedures [either hormonal, or surgical] that will let him/her
live as the preferred sex.2

Generally speaking, this is a

diagnosis that is only made when the individual has experienced

this disconnect for a period of two years or more.3

See Testimony of Dr. Richard Green, expert witness for plaintiff, trial
transcript for Sept. 26, 1983, 10:00 a.m., at 3537; see generally American
Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders
302.5x (3d ed. 1980).
2

Id.

Id.

It is also viewed as a disorder by the medical community.

The court listed the typical symptoms of someone suffering Gender
Identity Disorder in Oiler v. Winn-Dixie Louisiana, Inc.:
For example, he frequently wishes to pass as the other
sex, desires to be treated as the other sex. . . and [who]
displays

the

sex . .

conviction

that

he

was

born

the

wrong

.4

The term Gender Identity Disorder is not ideal: it is

problematic

in

the

sense

that

it

places

transgendered

individuals on an equal footing with those who suffer from

conditions

such

as

bipolar

disorder5.

Additionally,

an

individual may choose to undergo sex reassignment surgery. For

instance,

sex

reassignment

surgery

for

male-to-female

transsexuals would necessitate the removal of the external

male

sexual

vagina

by

organs
plastic

and

the

construction

surgery6,

of

supplemented

an

artificial

by

hormone

treatments to help develop secondary sex characteristics.

Oiler v. Winn-Dixie Louisiana, Inc., 2002 WL 31098541, 1 (2002).

Id.

Comment, 56 Cornell L.Rev., supra note 3, at 970 n. 37 (citations

omitted); see also Jones, Operative Treatment of the Male Transsexual, in
Transsexualism and Sex Reassignment 313, 31416 (R. Green & J. Money eds.
1969).

This paper aims to evaluate the language and approach of the

court

decisions

dealing

with

employment

discrimination

or

harassment against transgendered individuals as a class. It is a

vocabulary that severely limits the already limited protections
for transgendered individuals in the workplace. This paper will
also discuss measures whereby transgender plaintiffs may achieve
greater levels of protection against sex discrimination at work thus placing them in a position of parity with the cisgendered
community.

II.

THE ULANE DILEMMA : A JUDICIAL OVERVIEW

In 1968, an airline pilot named Kenneth Ulane was hired by a

company called Eastern Air Lines.7 Ulane had been a licensed
pilot since 1964 and had previously received the Air Medal for
his service in the United States Army. While at Eastern, he was
promoted to First Officer.
Ulane was also transsexual, and felt like a woman from early
childhood. He first sought psychiatric and medical assistance in
1968. Later, Ulane began taking female hormones as part of the
treatment, and was able to develop breasts. The final part of
7

Ulane v. Eastern Air Lines, Inc., 742 F.2d 1081 (7th Cir. 1984).

Ulanes treatment was to undergo sex reassignment surgery. In

1980, when the surgery has been completed, Illinois granted her a
revised birth certificate reflecting her new identity as a woman:
Karen Ulane. Throughout this process of sex-reassignment, Eastern
Air Lines remained unaware of Ulanes transsexuality.

When she returned to work she was fired from Eastern Air
Lines, and thereafter brought a suit against the airline claiming
discrimination under Title VII a suit that ultimately lost on
appeal in federal court.8 The court held that Title VII did not
protect

transgender

individuals

from

discrimination

in

the

workplace.9 The court accepted that Ulane was entitled to her own
beliefs regarding her sexual identity, and also conceded that
society may consider her to be female. However, it concluded that
even if one believes that a woman can be so easily created from
what remains of a man, that would not decide this case. Ulane,
wrote the Court, had not been discriminated against as a female,
but as a transgendered individual.

Id.

Id. at 1084; see also Holloway v. Arthur Andersen & Co., 566 F.2d 659, 66163 (9th Cir. 1977) (denying transgendered individuals the right to bring a
Title VII claim).

Although

there

are

large

number

of

definitions

associated with the word transgender, it is spoken of as being

both a political and biological term. [T]he very acts that
define

transgender

contradict

people

stereotypes

of

as

transgender

are

gender-appropriate

those

appearance

that
and

behavior.10 If one defines transgendered as a mental, inner

mode

of

being,

or

even

as

lack

of

harmony

between

the

physical male and the mental female, then it naturally

follows that Karen Ulane falls into that class. However, the
Ulane court described plaintiff Karen Ulane as transgendered
- a biological male who takes female hormones, cross-dresses
and has surgically altered parts of her body to make it appear
to be female.11 In doing so, they altered the meaning of
transgendered itself, and defined it as a male who attempts
to pass off as female. This description might be appropriate
for some forms of gender dysphoria, but is both demeaning and
erroneous in the context of the transgendered individual.

To support its conclusion, the court relies on the maxim

of

statutory

words

should

construction
be

given

that

their

unless
ordinary,

otherwise
common

10

defined,

meaning.12

Ilona M. Turner, Sex Stereotyping Per Se: Transgender Employees and Title
VII, 95 Cal. L. Rev. 561, 563 (2007).
11

Id.

12

Perrin v. United States, 444 U.S. 37, 42 (4th Cir. 1979).

However, in adopting this standard maxim, the court explicitly

rejects the idea that the word sex in Title VII comprehends
sexual identity, as opposed to chromosomal make-up.13 In so
doing,

the

court

transsexualism:

implicitly

the

rejects

plaintiff

Ulane

the

may

very

notion

choose

to

of

express

herself as female, but the court denies that such expression

thereby renders her female:
If

Eastern

did

discriminate

against

Ulane,

it

was...because

Ulane is a transsexual a biological male . . .14

In

one

possible

strike,

the

definition

one

Ulane
that

court

considers

created

the

gender

to

narrowest
be

solely

determined by genitalia at birth. The influence of such a narrow

interpretation

of

the

statute

was

far

reaching,

and

later

affirmed in Matter of the Estate of Gardiner, where the Supreme

Court of Kansas ruled that JNoel Gardiner (a transwoman) did not
fall within the meaning of female as the Kansas legislature
conceived
Ulane

it.15

court

The

kind

denied

the

of

characterization

plaintiff's

claim

employed
to

gender

transsexuality.16

13

Ulane, 742 F.2d at 1087.

14

Id.

15

In re Estate of Gardiner, 22 P.3d 1086, 1090 (Kan. Ct. App. 2001).

by

the
and

The court used similarly narrow language in Littleton v.

Prange, a 1999 case in Texas that invalidated a transwomans
marriage by holding that plaintiff Christie was still a male and
could not marry another male.17 The court justified its reasoning
in the most manner-of-fact terms: We cannot will some things
into being . . . They just are.18

Decisions such as those in Littleton and In Re: Gardiner

have reflected the view that sex is an unchanging binary. 19
Lawsuits brought to determine the legal sex of a transsex
person

for

bewildering

the

purpose

variety

of

of

ways,

marriage
unlike

may
the

come

issue

out
of

in

same-sex

marriage (which is either deemed legal or illegal]. If one

defines marriage as something that occurs exclusively between
a

man

and

woman,

it

makes

same

sex

marriage

illegal.

However, it does not contemplate a marriage in which one of

the partners is transgendered.

16

Susan Etta Keller, Operations of Legal Rhetoric: Examining Transsexual and

Judicial Identity, 34 Harv. C.R.-C.L. L. Rev. 329, 381-84 (1999).
17

Littleton v. Prange, 9 S.W.3d 223, 231 (Tx. Ct. App., 1999).

18

Id.

19

Id.

Therefore, courts are free to adopt the rigid position that

sex is immutably fixed at birth, as they did in Ulane, Littleton,
and In Re: Gardiner.20 Decisions such as the above have reflected
the view that sex is an unchanging binary.21 If courts follow the
Ulane

method

transgendered

of

classification,

marriages

would

be

the

vast

illegal

majority

under

DOMA,

of

which

defines marriage as the legal union between one man and one
woman as husband and wife.22 Here, the law does not allow for
the possibility of another kind of marriage that does not look
like the traditional one. Within this framework, the criteria by
which one determines sex become tremendously important.

Within

the context of such a perspective, Kenneth Ulanes choice to

become Karen Ulane takes on a subversive aspect: Ulane is cast as
a man (for now and all time), who for some mysterious reason has
altered certain parts of his body to make himself appear to be
female.23

However,

even

when

courts

do

not

take

that

route

to

determining legal sex and do not define male and female in

20

Ulane, 742 F.2d at 1087.

21

Id.

22

Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat.2419 (1996).

23

Id.

such narrow terms, they still adopt problematic methods to solve

the conundrum of a transpersons legal sex. In the case of M.T.
v. J.T., the plaintiff M.T. had felt that she was female all her
life, though she had been born with male genitalia. 24 In 1970,
she began to go to a doctor, who diagnosed her as having Gender
Identity

Disorder,

for

which

surgery

was

recommended.

M.T.

underwent surgery to replace her male genitalia with a vagina.

The court took into consideration a list of highly biological
factors, dwelling particularly on the fact that her vagina could
function

as

any

female

vagina

for

traditional

penile/vaginal

intercourse. The artificial vagina, said the court, had a good

cosmetic appearance and was not really different from a natural
vagina though at a somewhat different angle.25

The very compilation of such a list of factors is both

reductive and ludicrous. Firstly, it reasons that sex is the sum
of a number of biological parts.26 By taking into account only
sexual anatomy, it does not consider sex to be a self-identified
mental choice alone. Furthermore, to pronounce that X can only be
a woman when she has Y number of womanly body parts, is to draw
an

absurd

and

arbitrary

line

in

the

24

M. T. v. J. T., 355 A.2d 204 (N.J., 1976).

25

Id.

26

Id.

10

sand.

Secondly,

such

viewpoint

does

transpeople

who

not
do

take

into

account

not

choose

to

the

undergo

legal

position

surgery

on

of

their

genitalia (or indigent transpeople who cannot afford it).

Thirdly, this approach excludes people in the process of
transitioning, as well as those who do not plan to acquire the
genitalia of their identified sex.

If J.T in M.T v. J.T had

chosen not to acquire a vagina, it is highly likely that the

court

would

have

gone

the

other

way.27

For

that

kind

of

plaintiff, the courts line of reasoning is destructive, because

it

renders

them

effectively

intersex

until

they

have

transitioned to the extent that science is capable of permitting.

Additionally, judicial classifications such as the ones detailed
above have enormous impact on custody determinations.

They can

essentially deny transpeople the right to marry, or to inherit.28

III. THE MEDICAL PERSPECTIVE

27

M. T., 355 A.2d at 206.

28

Id.

11

In cases such as Ulanes, it is not difficult for courts

to adopt the view that even post-operation transsexuals cannot
be classified in the manner in which they choose. This is due
to the fact that the internal reproductive organs cannot be
changed in the process of sex-change surgery. The uterus and
ovaries cannot be constructed for those who are in Ulanes
position: chromosomal sex cannot be altered29, as the Ulane
Court

stated.

Initially,

the

medical

world

followed

this

extremely narrow construction of sex and looked to biology for

its

classifications

of

gender.

This

meant

that

even

post-

operative transsexuals were not classified as female, since

they still had a Y chromosome.

This methodology of determining sex solely by chromosome

was eventually rejected in Richards v. United States Tennis
Association30. Renee Richards was a tennis player, who had
undergone sex reassignment surgery in order to become female.
She sought to compete in the United States Womens Open, and
challenged

the

concluded

that

plaintiff

as

proposed
the

the

sex-chromatin

sex-chromatin
only

test

determination

29

Ulane, 742 F.2d at 1089.

30

400 N.Y.S.2d 267 (Sup. Ct. 1977).

12

test.
as

of

The

applied
sex

was

to

court
this

grossly

unfair,

discriminatory

adopting

the

chromatin

reasoning

test

was

and

inequitable.31

argued

by

inadequate,

The

Richards

stated

court,

that

that

she

the

in
sex-

should

be

considered female despite the findings of the chromosome test.

The other perspective adopted by the Court in Ulane in

order

to

condition

justify
could

be

their

holding

distinguished

was
from

the

idea

other

that

Ulanes

transsexuals.

In

fact, the Ulane Court considered the possibility that Ulane may
not have been truly transgendered, but merely a transvestite
which did not constitute a Title VII protected class.32 This
makes it more difficult for those who are truly transgendered,
because the term transvestite is usually interchangeable with
the term cross-dresser33. These individuals may choose to wear
attire that is usually associated with the opposite sex, but do
not experience true gender dysphoria, which has a neurobiological
basis and certainly cannot be described as a choice.34
it

has

been

suggested

that

31

Id. at 272-73.

32

Id.

33

Oiler, 2002 WL 31098541 at 1*.

34

Id.

transsexualism

13

may

be

Recently,
caused

by

processes in the prenatal brain. When a fetus is developing, its

brain may develop as male or female, just as its sex organs
may be differentiated in the womb: in the case of transsexuals,
these two may not be harmonized35.

Regardless of its cause, the symptoms are described with

uniformity. Transsexuals grow up believing that they have been
born with the wrong genitalia.36 These feelings are naturally
disconcerting and traumatic, as they often begin early in
childhood, as early as three or four years.37 These individuals
often rebel against any attempt to impose social gender
expectations that are inconsistent with what they believe they
are-they may refuse to wear the appropriate clothes and refuse
to participate in activities associated with their assigned
gender38. It is this rebellion that is cast as a choice by the
Ulane court.39

IV. SEX-STEREOTYPING & THE CASE OF PRICE WATERHOUSE

35

Milton Diamond & H. Keith Sigmundson, Sex Reassignment at Birth, 151

Archives Ped. & Adolescent Med. 298, 303 (1997).
36

In re Heilig, 816 A.2d 68, 77 (Md.,2003).

37

Doe v. McConn, 489 F.Supp. 76, 78 (S.D.Tex.1980).

38

M.T., 355 A.2d at 205.

39

Ulane, 742 F.2d at 1087.

14

By the year 1998, sexual harassment law had expanded

to

cover

same-sex

sexual

harassment

that

created

hostile

workplace.40 This change came largely with the groundbreaking

Price Waterhouse decision of 1989.41 The plaintiff, Ann Hopkins,
was turned down for the position of partner in an accounting firm
because

she

was

not

feminine

enough.

Id.

at

234.

She

was

described as being brusque, abrasive, aggressive, macho,

and in general, a tough-talking somewhat masculine hard-nosed
manager.42

Partners advised Hopkins to walk more femininely,

talk more femininely, dress more femininely, wear make-up, have

her hair styled, and wear jewelry if she wanted to improve her
chances at partnership.43 The partners at Price Waterhouse denied
Hopkins

promotion

because

she

did

not

conform

to

their

sex

stereotypes: ideas of how women should look, or dress, or behave.

This was not a case of overt gender discrimination. There were,
after all, female partners at Price Waterhouse, and Hopkins was
not passed over for promotion merely because of her sex. This was
a case of sex stereotyping.44
40

Oncale v. Sundowner Offshore Services Inc., 523 U.S. 75,79 (1997) (holding
that same-sex sexual harassment could be actionable under Title VII).
41

Price Waterhouse v. Hopkins, 490 U.S. 228, 258 (1989).

42

Id.

43

Id.

44

Id.

15

The court expanded the umbrella of protection against

sex discrimination in a somewhat circuitous way: it said that an
employer who acts on the basis of a belief that a woman cannot be
aggressive, or that she must not be, has acted on the basis of
gender.45

The

groundbreaking

holding

of

Price

Waterhouse,

therefore, was that when a plaintiff in a Title VII case proves

that

her

gender

played

motivating

part

in

an

employment

decision, the defendant must prove by a preponderance of the

evidence that it would have made the same decision even if it had
not taken the plaintiff's gender into account.46
The result of Price Waterhouse was that non-transgendered
plaintiffs

who

contravene

sex

stereotypes

could

recover

for

workplace harassment, as illustrated by cases such as Doe by Doe

v. City of Belleville:
A man who is harassed because his voice is soft, his physique is
slight . . . or because he exhibits his masculinity in a way that
does not meet his coworkers' idea of how men are to appear and
behave, is harassed because of his sex .47

45

Id.

46

Id.

47

Doe by Doe v. City of Belleville, Ill., 119 F.3d 563, 580 (1997).

16

In terms of workplace harassment,the difference between an

individual in transition and an individual who may not conform to
the sex stereotypes of others is not immediately apparent. In the
case of Nichols v. Azteca Restaurant Enterprises:
Male co-workers and a supervisor repeatedly referred to
Sanchez in Spanish and English as she and her. Sanchez was
attacked for walking and carrying his tray like a woman-i.e.,
for having feminine mannerisms.48

V. THE AFTERMATH OF PRICE WATERHOUSE

In order to see the impact that Price Waterhouse has had

more clearly, it is necessary to go back for a moment and look at
two important cases that preceded it. In Voyles v. Ralph K.
Davies Medical Center, the California District Court dismissed
the

plaintiffs

Title

VII

claim

that

she

had

been

unfairly

discriminated against (she was fired by the medical center) on

the basis of her decision to undergo sex-reassignment surgery.49
Once again, the court stated that Congress did not intend to
48

Nichols v. Azteca Restaurant Enterprises, Inc., 256 F.3d 864 (2001)

(finding that the plaintiff was being sexually harassed under Title VII
because the verbal abuse was closely linked to gender).
49

Voyles v. Ralph K. Davies Medical Center, 403 F.Supp. 456, 457 (N.D. Cal.
1975).

17

place transgendered individuals under the protective umbrella of

sex in the Act.50
These courts - after considering both legislative history
and

Congressional

interpretations

of

intent
the

Act.

refused
In

to

the

consider

years

after

any

new

Voyles

and

Grossman (another case holding that termination on the basis of

sex-reassignment did not amount to Title VII sex discrimination),
claims

brought

discriminated
dismissed.51

by

against
The

transgendered
in

courts

the

individuals

workplace

reasoning

in

were

who

almost

Grossman

was

were

uniformly
slightly

different, because it assumed for the purposes of the case that

the

plaintiff

was

indeed

female.52

However,

the

court

still

concluded that the plaintiff was discharged by the defendant

school board not because of her status as a female, but rather
because

of

her

change

in

sex

from

the

male

to

the

female

gender.53 The Grossman court elucidated the circumstances based

on which a plaintiff could make out a prima facie case of sexbased discrimination, saying that plaintiff's employment was not
terminated

50

because

of

any

stereotypical

concepts

about

the

Id.

51

See Grossman v. Bernards Tp. Bd. of Educ., 1975 WL 302, at *4 (D.N.J. Sept.
10, 1975).
52

Id.

53

Id.

18

ability of females to perform certain tasks, nor because of any

condition common only to woman.54

In the wake of Price Waterhouse, cases such as Voyles may

not remain good law.55 If terminating an employee who dresses or
behaves contrary to her sex is illegal, then terminating an
employee

who

is

in

the

process

of

transitioning

is

also

potentially illegal. It is true that Price Waterhouse did not

involve a transgendered plaintiff however, one could well make
the argument that people such as Karen Ulane were fired because
they did not conform to their employers expectations of how men
should behave.56

While both of the above cases demonstrate the consequences

of merely having feminine mannerisms, they do not address the
specific situation of those who are openly homosexual, or those
who cross-dress. However, since one may also bring Title VII
cases

in

protection
54

Id.

55

Id.

the
to

latter

cases,

transgendered

the

argument

plaintiffs

56

for

extending

that

seems

stronger.

Some

Rosa v. Park W. Bank & Trust Co., 214 F.3d. 213, 214 (1st Cir. 2000)
(finding that transgendered plaintiffs who did not conform to sex stereotypes
could sustain a valid claim of sex discrimination on that ground)

19

transgendered plaintiffs may choose not to undergo surgery, but

merely cross-dress, and in theory ought to receive the same ,
protection. The Sixth Circuit acknowledged this in Smith v. City
of

Salem:

it

transgendered

extrapolated
plaintiff

that,

could

post-Price

sustain

Waterhouse,
claim

of

sex-

discrimination.57 In many ways, the language used by the Smith

court

is

even

more

sympathetic

to

the

plaintiff,

powerful than that of Price Waterhouse.58

and

more

Smith, who was a

fireman [and who worked in a highly male-dominated environment],

began to express himself in a typically feminine manner at the
workplace. Id. In consequence, his employers forced him to attend
multiple psychological evaluations in the hope that he would
resign.59

Judge Cole, writing for the majority, acknowledged that

courts

had

previously

regarded

Title

VII

as

discrimination based only on sex - not on gender.

barring
60

Sex,

as federal courts had interpreted it, referred to an individuals

anatomical and biological characteristics, while gender stood
for socially constructed norms associated with a persons sex.
57

Smith v. City of Salem, 378 F.3d 566, 571-72 (2004).

58

Id.

59

Id.

60

Id. at 573.

20

However, he then went on to declare that logic eviscerated

after Price Waterhouse.61 Employers who discriminate against men
because they wear dresses or act in a feminine manner, are
engaging in sex discrimination, because the discrimination would
not

occur

if

the

victim

was

woman.62

Therefore

the

discrimination is based on the victim's sex.

The district court in Smith did not reach this conclusion,
however.63 It placed the term sex stereotyping in quotation marks
and called it a term of art, thereby implying it was not a
genuine phenomenon.64However, to say that sex discrimination does
not encompass that kind of behavior is to say that transgendered
plaintiffs would be the only unprotected classification.

This

kind of analysis illustrates the reluctance of the judiciary to

extend the definition of sex beyond the extraordinarily narrow
limits set in Ulane.

VI. THE SEX STEREOTYPING THEORY: LIMITATIONS

61

Id.

62

Id.

63

Id.

64

Id. at 574.

21

Unfortunately, the arguments made by the Price Waterhouse

court, even when taken in conjunction with

Oncale, have not

always guaranteed legal protection to those individuals who are

in the process of transitioning in the workplace.65 In Etsitty v.
Utah

Transit

Waterhouse

Authority,

and

Smith,

a
the

case

which

came

transgendered

after

both

plaintiff,

Price

Krystal

Etsitty was denied relief.66 The court also held that she had
failed to make out a prima facie case under the Price Waterhouse
theory of sex stereotyping.67

The Etsitty court reasons that the

plain language of the statute governs... the plain meaning of sex

encompasses nothing more than male and female. 68 Drawing on the
arguments in Ulane, the court also states that transsexuals are
not a protected class under Title VII.69

For the sake of convenience, the court declines to consider

whether

or

not

Title

VII

protection

is

always

available

to

transsexuals, and instead decides that it is arguendo available

in this case.70 However, it then declares that the Utah Transit
65

Price Waterhouse, 490 U.S. at 250-51.

66

Etsitty v. Utah Transit Authority, 502 F.3d 1215, 1222 (2007).

67

Price Waterhouse, 490 U.S. at 250-51.

68

Etsitty, 502 F.3d at 1221.

69

Id.

70

Id.

22

Authority (which terminated her for using the womens restrooms)

has a legitimate, non-discriminatory reason for firing Etsitty.71
At the heart of the Etsitty decision is the assumption that
asking employees to use restrooms matching their biological sex
is not unreasonable. The court justifies that assumption on the
grounds

that

disadvantageous

it

does

terms

not
or

expose

members

conditions

of

of

one

employment

sex
to

to

which

members of the other sex are not exposed.72

The Etsitty courts reasoning above only holds good if one

accepts two intermediary assumptions: first, that the meaning of
male

is

limited

to

biological

male;

and

second,

that

transwoman who uses the womens restroom is not merely failing

to conform to gender stereotypes.73

The Etsitty opinion seems to focus on Etsittys use of the

restroom, and says it is a reasonable regulation to require
biological males to use the mens restroom.74 In analyzing the
holding of Price Waterhouse, Justice Murphy states what seems at
71

Id. at 1224.

72

Oncale, 523 U.S. at 80, 118 (S.Ct. 1998).

73

See Nichols, 256 F.3d at 875 (holding that a mere failure to conform to sex
stereotypes will activate Title VII protection).
74

Etsitty, 502 F.3d at 1224.

23

first blush to be an entirely rational opinion: that the court

cannot require employers to allow biological males to use women's
restrooms.75 However, the court is misstating the issue: Price
Waterhouse does not require employers to allow biological males
into womens restrooms.76 If Price Waterhouse has originated any
hard and fast rule [in the context of transgendered individuals],
it suggests that employers ought to refrain from imposing sex
stereotyping. It was this perspective that the Smith court seems
to share however, the Etsitty court frames the decision in
terms of reasonableness.

The court seems to be implying that

allowing a transwoman to use the womens restrooms would be a

great infringement on the rights of the biological women who use
the restrooms. However, the court does not propose a viable
alternative for transwomen.

The Etsitty court states that the Utah Transit Authoritys

reason

was

not

pretextual,

because

it

had

reason

to

be

genuinely concerned about the fact that complaints may have

arisen about Etsittys restroom usage in the future.77 The court
does not even give credence to the argument that since Etsitty
appeared to be a woman, her usage of the mens restroom may also
75

Id.

76

Price Waterhouse, 490 U.S. at 250-51.

77

Etsitty, 502 F.3d at 1224.

24

have given rise to complaints, or sexual harassment. The court

does mention in passing that no complaints had yet been received
regarding Etsittys use of womens restrooms, but dismisses this
as a trivial objection.78 Furthermore, a court had already ruled
in 2002 that a school's policy of allowing transgendered male to
use

women's

faculty

restroom

did

not

create

hostile

work

environment.79 Decisions such as Etsitty reinforce the freedom

of the employer to terminate employees on a reasonable pretext,
which

further

undermines

legal

protection

for

the

transgendered.80

In more formal workplaces that impose rigid dress codes, it

may

be

extraordinarily

difficult

for

employees

undergoing

transition to meet employer expectations. It would therefore not

be

difficult

for

an

employer

to

terminate

transgendered

individual on those grounds. Take the case of a hypothetical

transman who has not yet initiated sex-change surgery, but who
dresses and presents himself as a man thereby violating the
workplace
78

dress-code.

One

might

conclude

that

after

Price

Id.

79

Cruzan v. Special School Dist. No.1, 294 F.3d 981, 984 (2002) (finding that
reasonable women could not find their working environment abusive or hostile
merely because they had to share bathroom facilities with a transgendered
male).
80

Etsitty, 502 F.3d at 1224.

25

Waterhouse,

employers

would

be

barred

from

firing

such

an

individual, but a Nevada court ruled that Price Waterhouse did

not apply in the context of grooming and appearance standards
cases, and that sex-differentiated appearance standards did not
discriminate on the basis of sex.81

Therefore, in theory, an

employer who wished to fire an individual in transition could do

it

legally

by

imposing

appearance-related

standards

that

the

trans person would be unable to meet. Individuals who did not

plan to undergo surgery would find it still harder to comply with
rigid appearance-related standards or dress codes. Plaintiffs who
wanted to bring claims in such circumstances could only recover
if

the

court

followed

the

Smith

interpretation

of

Price

Waterhouse.

VII. SOLUTIONS

The

most

immediately

obvious

measure

to

redress

discrimination against transgendered individuals is to amend the

81

Jespersen v. Harrah's Operating Co., Inc., 392 F.3d 1076, 1082 (9th Cir.,
2004) (holding that plaintiff Jespersen could not bring a Title VII claim
because her employer was free to impose appearance-related standards); see
also Nichols, 256 F.3d at 875 (holding that reasonable regulations requiring
male and female employees to conform to different dress and grooming standards
did not amount to Title VII violation).

26

Americans with Disabilities Act, which excludes those suffering

from

gender

identity

disorders

not

resulting

from

physical

impairments.82 The ADA prevents employers from discriminating

against qualified employees with disabilities. A gender identity
disorder, however, is not viewed as a disability, even though its
symptoms

can

include

deep-rooted

mental

fixations.

To

not

classify GID as a disability under federal law is to ignore the

disabling effect they can have in some cases.

Of course, state courts are free to provide more protection

(than the ADA does) to members of the trans community. However,
individual states seem to be taking their cues from federal law
in denying plaintiffs relief under disability law. The court in
Doe

ex

rel.

Doe

v.

Yunits

stated

that

analysis

of

federal

discrimination law is instructive in construing state disability

discrimination law, before concluding that there is no authority
to

support

protected

the

notion

disability

that

under

Gender
the

Identity

Massachusetts

Disorder

is

Declaration

a
of

Rights of laws of this state.83

In any event, remedying the ADA, or relying on individual
state disability law, may not be the ideal situation. There are
82

83

42 U.S.C. 12211(b) (2000).

Doe ex rel. Doe v. Yunits,

2000 WL 33162199, at *7 (Mass., 2000).

27

certainly cases in which transsexualism does not incapacitate or

impair mental health. To be viewed as disabled in the eyes of the
law may be humiliating for other, healthy individuals. A better
solution

may

be

to

begin

enlarging

the

umbrella

of

legal

protection in the workplace.

Courts have the choice to abandon the rigid, binary gender
constructs that they seem to employ when deciding these cases
the idea that there is only male, and female, and that the
two can never overlap or exchange places, effectively denies all
trans people the very identity they seek.

84

Courts may also

acknowledge the idea that gender may not be immutably fixed at

birth. If courts are willing to expand the definition of sex
under Title VII, then plaintiffs could recover without needing to
go the Price Waterhouse route of sex stereotyping.85 As recently
as 2011, courts have demonstrated their willingness to expand
this definition:
A person is defined as transgender precisely because of the
perception

that

his

or

her

behavior

transgresses

gender

stereotypes.86
84

Holloway v. Arthur Andersen & Co., 566 F.2d 659, 664 (9th Cir. 1977)
(holding that an employer could lawfully discharge a transgender individual
because Title VII does not prohibit discrimination against transsexual
individuals).
85

Price Waterhouse, 490 U.S. at 250-51.

86

Glenn v. Brumby, 663 F.3d 1312, 1317 (11th Cir. 2011) (holding that
discrimination against transgendered individuals is sex discrimination).

28

Similar language was used in the 2008 case of Lopez v. River

Oaks Imaging & Diagnostic Group, Inc., a district court case that
held that it was a Title VII violation to rescind a job offer to
a transgendered applicant when it was discovered that she had
been born a man:
Title

VII

and

Price

Waterhouse

...

do

not

make

any

distinction between a transgendered litigant who fails to conform

to traditional gender stereotypes and [a] macho female who ...
is perceived by others to be in nonconformity with traditional
gender stereotypes.

87

However, adopting a M.T v. J.T kind of approach is not

advisable either:

it would lead to widely varying results,

besides being demeaning and reductive in its definition of male

and

female.88.

The

imposition

of

surgery

requirement

discriminates against those who cannot afford, or who do not

choose to undergo, sex-change surgery. Therefore, the need of the
hour

is

to

steer

courts

away

from

rigid,

medical-based

classifications to flexible ones: courts that relied on self-

87

Lopez v. River Oaks Imaging & Diagnostic Group, Inc., 542 F.Supp.2d 653,
659661 (S.D.Tex. 2008).
88

J. T., 355 A.2d 204, 206 (N.J., 1976).

29

identification to determine sex would have granted relief to

plaintiffs like Etsitty and Ulane. More courts adopting the Smith
interpretation of Price Waterhouse would lead to more uniformity
in the case law, as well as greater protection. As the current
landscape

shows,

transgendered

plaintiff

who

faced

discrimination at the workplace might well be reluctant to bring

a claim, since he or she would have no guarantee of legal relief.
Furthermore,

he

or

she

might

experience

humiliation

and

embarrassment at the clinical, intrusive approach of the courts

to determining identity. A greater focus on sensitivity toward
transgendered individuals in the court if not in the workplaceis the most important initial goal.

In conclusion, the word transgendered has been variously

described as either Gender Identity Disorder or as a condition
wherein an individual feels that he has been born the wrong sex.
Initially, courts equated transgendered plaintiffs with those who
cross-dressed, and ascribed their behaviors to choice. Sex was
viewed as immutable, and binary: there was no legal definition or
provision for those who were in the process of transitioning
between one gender and another. Indeed, such a transition was
held to be impossible. This meant that plaintiffs like Ulane
could not bring successful Title VII claims on the basis of their
30

status as female: courts refused to read Title VII broadly

enough to include discrimination on the basis of sexual identity.
Even when the law adapted to recognize that sex may not be
immutably fixed at birth by chromosomal make-up, it took a very
clinical approach to the determination process.
However, some level of progress was certainly made with the
Price Waterhouse holding, and subsequent cases that feature samesex sexual harassment in the workplace. Now, a failure to conform
to sex stereotypes at work could be construed as a violation of
rights under Title VII. Although this holding was not prima facie
applicable

to

transgendered

individuals,

it

is

possible

to

conceive of plaintiffs like Ulane recovering under law because

they refuse to conform to sex stereotypes.
Ultimately, the status of the law dealing with harassment
against transgendered individuals is questionable. Decisions like
Etsitty seem to be reinforcing employers freedom to discriminate
against

transsexuals,

as

long

as

said

discrimination

may

be

cloaked by a reasonable pretext. However, courts are also slowly

moving away from rigid, biological-based and clinical systems of
classification to a more holistic and psychological approach that
can only expand the legal rights available to those in transition
at the workplace.

31

32