Kristine W, Holt


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Kristine W. Holt

Copyright © 1997 Temple University of the Commonwealth System of

Higher Education; Kristine W. Holt

70 Temp. L.Rev 283 (1997)


Forty-five years ago, Christine Jorgensen [1] burst into public awareness as America's first openly recognized transsexual woman. Her story captured the media's imagination; her childhood, her army service, her travels to Sweden and Denmark, even her romantic encounter with a wealthy construction magnate, became grist for the tabloids. Although she did not write her autobiography until 1967, the American public's insatiable curiosity about transsexualism spurred publication of numerous potboilers and paperbacks, all purporting to reveal "the truth" behind the "transsexual phenomenon." [2] The frequency with which transsexual and transgendered [3] persons appear on daytime talk shows even today demonstrates the public's persistent, intense fascination with the subject. Sadly, though, that fascination is also accompanied by animosity and discrimination. Society is schizophrenic about its transgendered members. [4]

The "gender revolution" has seized its second generation of followers and is now quickly claiming its third. [5] Each is larger than its predecessor. It has been estimated conservatively that over 10,000 transsexuals in the United States have completed their sexual transition with genital surgery (sex reassignment surgery, or "SRS"); this number represents only about five percent of the estimated 225,000 diagnosed transsexuals who are cross-living and awaiting SRS. [6] This estimation of nearly one-quarter million cross-living transgendered persons does not even include the vast number of "woodworking" transsexuals, [7] transvestites, cross-dressers, drags, and others who fall under the general heading of "transgendered" and who, unlike their openly transsexual sisters and brothers, rarely come to the attention of the medical or legal communities. Transgendered people are now represented in virtually every profession--musicians, entertainers, writers, engineers, teachers, doctors, and lawyers--and are "coming out" as such to their employers and coworkers in ever-increasing numbers.

Yet, in spite of the burgeoning growth of this young community, its legal status is still uncertain and precarious. The right of transgendered people to enjoy the privileges of employment [8] free from unwarranted harassment and discrimination varies from jurisdiction to jurisdiction; indeed, protections can vary drastically from municipality to municipality within jurisdictions. [9] An overview of federal and state case law and statutes reveals, however, a public policy decidedly opposed to the civil rights of transgendered people.

This Comment will explore the development of the current public policy against transgendered persons, and how this policy has manifested itself under federal anti-discrimination case law. Transgendered people currently enjoy no specified civil rights protection under the Civil Rights Act of 1964 or any other statute prohibiting sex discrimination, handicap/disability discrimination, or discrimination based on sexual orientation. [10] In fact, transgendered people do not fit clearly into any known classification for anti-discrimination purposes, except in very limited jurisdictions and circumstances. They seemingly depend upon a largely uninformed judiciary to capriciously enforce civil protections which are taken for granted by their non-transgendered neighbors.

Current civil rights statutes could afford protection for transgendered persons. This Comment will focus primarily on Title VII as the principal vehicle for that protection. Although the courts have previously denied Title VII protections to transgendered persons by strictly defining the term "sex" in transgender discrimination cases, [11] this Comment will demonstrate that such an approach is contrary to the definitions and inferences that have been developed by the United States Supreme Court in decisions regarding other public policies--for example, stereotypical behaviors and sexual harassment.

This Comment will further examine and contrast the doctrine of sex stereotyping and its development under Title VII with the Court's traditional treatment of the cross-gendered behavior [12] of transgendered persons. It will then demonstrate a theory, based solidly upon the precedents of the Supreme Court and the circuit courts of appeals, by which inclusion of transgender rights under Title VII can be accomplished. This theory better reflects current judicial thinking regarding the definition of the term "sex" in Title VII than that previously used for transgendered litigants.

This theory of inclusion will demonstrate that the lower courts have applied the outdated statutory interpretation of narrowly defining "sex" solely to derogate transgendered persons' civil rights and equal protection guarantees under Title VII. [13] Equal protection concerns will, in turn, be discussed in light of judicial principles that dictate a constitutionally sound rendering of statutory interpretation.

Finally, this Comment will analyze the relevant constitutional issues using two different hypothetical scenarios. In the first scenario, a politically unpopular class is denied civil protection by way of express exclusion. In the second scenario, a favored class is given expanded civil rights not granted to similarly-situated classes. The level of review for our constitutional analyses need only be minimal, [14] as other recent cases have established that this level is adequate when addressing the civil rights of sexual minorities. [15] With this end in mind, the author will review congressional debates from several different sessions in order to formulate a composite "sense of Congress" regarding transgendered persons. The author will then evaluate this composite "sense of Congress" to ascertain whether any legitimate rationale for classifying transgendered persons and denying them civil protections might exist. This Comment will demonstrate that such is not the case.

The result of this analysis and synthesis is a theory of transgender jurisprudence that moves far beyond the decades-old thinking that has typified prior authority on the subject. Such a theory promises to revitalize the efforts and legal arguments surrounding the search for non-discrimination protection for one of society's most marginalized minorities.

I. Overview of Existing Case Law

Because of the relative recency of the transgender phenomenon in our society, case law addressing transgender civil rights is scant. However, as the United States Court of Appeals for the Seventh Circuit recognized in Farmer v. Haas, [16] "[t]here is a nascent jurisprudence of [transgenderism] . . . ." [17] Much of the extant litigation concerns such issues as legal identification, [18] marriage, [19] medical care, [20] and incarceration. [21] In the mix are a handful of cases dealing with fundamental issues of statutory civil protections and constitutional equal protection.

The watershed case in this body of developing transgender jurisprudence is Holloway v. Arthur Andersen & Co. [22] Holloway involved a claim of employment discrimination brought by a transsexual woman [23] against her employer, an accounting firm. Ramona Holloway, a Head Multilith Operator, had been hired as a male in 1969. In February of 1974, however, she informed her supervisor that she would be undergoing a transition from male to female. She had already been receiving hormonal treatment for approximately four years. At an annual review in June 1974, her supervisor suggested that she "would be happier at a new job where her transsexualism would be unknown." [24] She was, nevertheless, given a raise. But shortly after Holloway requested a change in company records to reflect her new first name, she was terminated. [25]

Holloway pursued administrative remedies, and then filed suit in federal district court. [26] Her complaint alleged that her employer had violated Title VII, [27] which prohibits discrimination on the basis of sex. The district court dismissed the suit for failure to state a claim, and the United States Court of Appeals for the Ninth Circuit affirmed. [28]

The circuit court supported this ruling by concluding that transsexual persons are not covered by Title VII's prohibition against sex discrimination, [29] based upon its reasoning that the 1972 Amendments to Title VII, while leaving the language of § 2000e-2(a)(1) unchanged, were intended to remedy "the economic deprivation of women as a class." [30] From this, the court determined that Congress "had only the traditional notions of 'sex' in mind." [31] The type of non-traditional "notion of sex" the court viewed as applicable to the predicament of the plaintiff who undergoes sexual reassignment surgery was clearly set forth in the opinion:

1 Giving this statute its plain meaning, this court concludes that Congress had only the traditional notions of "sex" in mind. Later legislative activity makes this narrow definition even more evident. Several bills have been introduced to amend the Civil Rights Act to prohibit discrimination against "sexual preference." None have been enacted into law. [32]

The court also noted that other case law supports the notion that homosexuality is not protected under Title VII. [33]

The court summarily rejected Holloway's argument that such a narrow interpretation of the definition of "sex" raised equal protection issues. [34] The court first concluded that transsexual persons do not comprise a "discrete and insular minority," and thus are not subject to suspect classification. [35] The court determined, therefore, that it was appropriate to apply the rational relationship test to Holloway's equal protection claim, and stated, "it can be said without question that the prohibition of employment discrimination between males and females and on the basis of race, religion or national origin is rationally related to a legitimate governmental interest." [36] However, the court continued, finding that:

1 An equal protection argument is clearly not appropriate here, however. . . . [T]ranssexuals claiming discrimination because of their sex, male or female, would clearly state a cause of action under Title VII. Holloway has not claimed to have been treated discriminatorily because she is male or female, but rather because she is a transsexual who chose to change her sex. This type of claim is not actionable under Title VII and is certainly not in violation of the doctrines of Due Process and Equal Protection. [37]

In a nine-paragraph dissent, Judge Goodwin took a radically different view, stating that:

1 I would not limit the right to claim discrimination to those who were born into the victim class . . . . The only issue before us is whether a transsexual whose condition has not yet become stationary can state a claim under the statute if discharged because of her undertaking to change her sex. [38]

Judge Goodwin argued that, had the employer waited to terminate Holloway until after she completed her surgical transition, the discharge would be classified as one based upon sex. [39] He reasoned that a termination which takes place shortly before such surgery is completed should be, conceptually, no different from one which takes place shortly after surgery, and no valid Title VII purpose is served by holding otherwise. [40]

Judge Goodwin's dissent also differed from the majority on another crucial point: his view of the non-traditional nature of transgenderism. "This is not a 'sexual preference' case; this is a case of a person completing surgically that part of nature's handiwork which apparently was left incomplete somewhere along the line." [41] This interplay between the concepts of gender identity and sexual orientation has defined the parameters of legal reasoning in post- Holloway federal transgender jurisprudence. [42]

Case law contrary to the Holloway court's analysis of transgender rights is scant. Such precedents are primarily cases in which courts addressed transgender civil rights in other venues, under different circumstances. [43] While sometimes on point with the facts presented in Holloway, they support the argument presented in Judge Goodwin's dissent.

For instance, the New York Supreme Court of New York County rejected the Holloway court's analysis and extended state anti-discrimination laws to protect transsexuals. In Maffei v. Kolaeton Industries, Inc., [44] the court analyzed federal case law which declared that transsexuals are not protected by Title VII and found it unconvincing. [45] The court particularly questioned other courts' reasoning concerning congressional intent. [46] The court refused to find that Congress's denial of Title VII protections to homosexuals supported a presumption that Congress intended to exclude transsexuals as well. [47] Rather, the Maffei court reasoned that "[b]ecause Congress may have chosen not to include the term 'sexual orientation' in Title VII does not mean that it has considered and declined coverage to transsexuals." [48] The court predicted that, if the issue were to reach the United States Supreme Court, the Court would recognize same-sex sexual harassment as actionable under Title VII, [49] such recognition would support a liberal interpretation of a remedial statute. The Maffei court examined sexual harassment precedent and determined that the Supreme Court has already interpreted liberally the term "sex" as it is used in Title VII. As the District Court for the Northern District of Illinois noted:

1 Like sexual orientation harassment, Congress did not specifically include sexual harassment as a cognizable Title VII claim. In 1986, the United States Supreme Court held that a claim of "hostile environment" sexual harassment was a form of sex discrimination actionable under Title VII. . . . We know from Supreme and Circuit Court decisions that the term "sex," at least as used in Title VII, connotes "gender," not sexual preference, identity or orientation. [50]

Moreover, in Price Waterhouse v. Hopkins, [51] the Court construed the literal words of 42 U.S.C. § 2000e-2(a)(1) to mean "that gender must be irrelevant to employment decisions." [52] The Price Waterhouse Court also rejected sex stereotyping under Title VII, noting that:

As for the legal relevance of sex stereotyping, we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group, for "[i]n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes." [53]

The Holloway court not only misconstrued the breadth of the term "sex" in Title VII; it also misapplied the equal protection analysis in refusing to protect sexual minorities. The court's refusal to afford equal protection to transsexuals, or sexual minorities in general, is a proposition unsupported by other case law. [54] Very recently, the Supreme Court in Romer v. Evans [55] held that an amendment to the Colorado Constitution which had the effect of excluding homosexuals from the legislative process was invalid under the Equal Protection Clause. [56] Colorado's "Amendment 2" [57] was passed by state referendum in 1992, and was quickly challenged in the District Court for the City and County of Denver. [58]

Writing for the majority, Justice Kennedy described Amendment 2 as

1 at once too narrow and too broad. It identifies persons by a single trait and then denies them protection across the board. . . . It is not within our constitutional tradition to enact laws of this sort. Central both to the idea of the rule of law and to our own Constitution's guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance. . . . Respect for this principle explains why laws singling out a certain class of citizens for disfavored legal status or general hardships are rare. [59]

The Court found that such a law "seems inexplicable by anything but animus toward the class that it affects," [60] and that it bears no rational relationship to any "legitimate governmental purpose." [61] Even without resorting to the argument for suspect classification for homosexual persons, the Court readily applied the Equal Protection Clause to this minority group.

The logical extension of the Court's application of equal protection analysis is illustrated by a decision by the United States Court of Appeals for the Seventh Circuit. In Nabozny v. Podlesny, [62] the plaintiff sued a school district and others, alleging that they denied him equal protection under the law when they refused to protect him against the abuse of his classmates, who harassed him mercilessly because of his sexual orientation. [63] The Western District Court of Wisconsin granted summary judgment for the defendants, and the Seventh Circuit reversed. [64]

In its decision, the circuit court set forth the rule it would follow:

1 [T]he Constitution prohibits intentional invidious discrimination between otherwise similarly situated persons based on one's membership in a definable minority, absent at least a rational basis for the discrimination. There is little doubt that homosexuals are an identifiable minority subjected to discrimination in our society. [65] The court reviewed Nabozny's claim under the rational relation test and was "unable to garner any rational basis for permitting one student to assault another based on the victim's sexual orientation, and the defendants do not offer us one." [66] The court concluded that a reasonable factfinder could find that the school district violated Nabozny's Fourteenth Amendment right to equal protection by discriminating against him based on his sexual orientation. [67]

Maffei points the direction in which courts must look to properly define "sex" for Title VII purposes. Romer and Nabozny draw us further away from Holloway's assertion that equal protection considerations are inappropriate for transgendered persons. The synthesis of these concurrent principles compels the inevitable negation of Holloway.

II. Discussion

A. "Transgender" as "Sex" Under Title VII

Despite the developments chronicled in Maffei, Romer, and Nabozny, courts have continued to follow Holloway. For example, in Ulane v. Eastern Airlines, [68] the Seventh Circuit relied on Holloway to deny a transsexual's employment discrimination claim, [69] despite the district judge's interpretation of "sex" for Title VII purposes:

1 I have previously held in denying defendant's motion to dismiss that I believed the complaint [of discrimination based on plaintiff's transsexualism] adequately alleged that the discharge was related to sex or had something to do with sex. I continue to hold that layman's reaction to the simple word and to the facts alleged in the complaint. [70]

With these words, District Judge Grady in Ulane v. Eastern Airlines [71] interpreted the simple language defining the term "sex" as it appears in Title VII. He then held that Eastern Airlines discriminated against the plaintiff on the basis of sex when it fired her after she underwent sex reassignment surgery. [72] On appeal, the Seventh Circuit disagreed with Judge Grady's interpretation, and determined that the "ordinary, common meaning" of "sex" should result in different consequences for Karen Ulane. [73] Holding that Title VII's plain meaning outlawed discrimination "against women because they are women and against men because they are men," [74] and did not prohibit discrimination on the basis of "sexual identity disorder," [75] the court followed the Holloway court's reasoning.

Such an interpretation of Title VII remains as invalid today as it was when it was first propounded in Holloway. A robust body of case law, including Supreme Court precedents, has developed which gives the term "sex" broad meaning by incorporating stereotypical characteristics and behaviors. [76] The courts have definitively recognized that, for Title VII purposes, one's "sex" encompasses the totality of one's sexual identity. When a person is discriminated against because she does not exhibit the "correct" stereotypical sexual characteristics, that person has a cause of action under Title VII. The Holloway line of cases, however, denies application of this legal doctrine to transgendered litigants, and only to transgendered litigants.

Transgenderism challenges the traditional notion that "sex" and "gender" are biologically interconnected. In the non-transgendered individual, one's gender, or psychosocial sense of being either a man or a woman, complements one's sex, i.e., the anatomic characteristics defining one as male or female. The transgendered individual sets this complementary relationship on its ear, and converts it into a contradiction. For the transgendered person, one's sense of being a man or woman has no relation to the anatomical characteristics that label her as male or female. [77]

As a general rule, courts have little difficulty in recognizing the traditional correlation between sex and gender, as numerous opinions which use the terms interchangeably illustrate. [78] The court in Shoiber v. Emro Marketing Co. [79] recognized this identity when it stated "[w]e know from Supreme and Circuit Court decisions that the term 'sex,' at least as used in Title VII, connotes 'gender'." [80] Indeed, the Supreme Court has stated that "[w]e take these words [prohibiting discrimination on the basis of sex] to mean that gender must be irrelevant to employment decisions." [81] Yet, in the context of the transgendered individual, the courts claim to see the distinction between sex and gender quite clearly: "Sex" is defined narrowly based on anatomical characteristics, [82] whereas "gender" is a psychosocial construct. [83]

The courts have differed in defining what is a male and what is a female. This issue, in the transgender context, was first addressed in Corbett v. Corbett, [84] a British case that decided the validity of a marriage between a post-operative transsexual woman and a male transvestite. The court determined that, despite the woman's female genitalia, she "is not, and was not, a woman at the date of the ceremony of marriage, but was, at all times, a male." [85] Some American jurisdictions have relied on this ruling to assert that one's sex at the time of birth remains one's sex forever, [86] but others have rejected Corbett. [87] At least one jurisdiction apparently has tried to find a third alternative, resulting in seemingly conflicting opinions, released only days apart. [88] The only certainty that can be distilled from this jumble of conflicting precedents is that sex is a legal function, not a biological one. [89]

In light of the judicial confusion regarding the basic question of "what is a person's sex," it seems disingenuous for the courts to rely on a "traditional notion of sex," i.e., anatomical or genital sex, when denying civil protections under a remedial statute to a particular classification of persons. Contrary to the courts' stated rationale for narrowly defining sex, the anatomical differences between the sexes go far beyond the difference in genitalia. The physical differences between males and females exist with regard to body and facial hair, fat distribution, scalp hair, vocal cords, skeletal features, and musculature. [90] The presence of discordant secondary sexual characteristics is often the trigger for discriminatory reactions from employers. [91] Yet, these very same biologically-determined, secondary sexual characteristics are ignored by the courts when addressing transgender issues.

Except for intimate contacts, people rarely see each other's genitals. Displaying one's genitalia publicly is generally considered a crime. [92] Despite the fact that their genitals are hidden, however, we usually have no problem assessing the sex of every person we meet, and tailor our interactions with them based upon those assessments. Distinct from the aforementioned secondary sexual characteristics which guide others in assessing one's sexual status, [93] society itself imposes relatively strict guidelines on how males and females should dress, act, feel, etc. Absent a clear display of genitalia, it is necessarily one's secondary characteristics and sex-typical behavior [94] that establishes one's maleness or femaleness within the social construct.

The Supreme Court has ruled that employment decisions based on sex-typical behavior, or the stereotypical characteristics of men and women, are unlawful under Title VII. In City of Los Angeles, Department of Water & Power v. Manhart, [95] the Court examined a pension plan that required women to make larger contributions than men, based on the assumption that women live longer than men, and would thus draw more from the fund upon retirement. [96] The Court found the plan violated Title VII. [97] In doing so, the Court stated, "[i]t is now well recognized that employment decisions cannot be predicated on mere 'stereotyped' impressions about the characteristics of males or females." [98] In rejecting such stereotypes, the Court embraced the Seventh Circuit's interpretation of Title VII's scope as enunciated in Sprogis v. United Airlines. [99]

The Sprogis court, while examining a United Airlines employment policy that disallowed the employment of married women as stewardesses, determined that Title VII prohibited discrimination based on stereotypes. In its discussion of the conduct proscribed by Title VII, the court declared, "[t]he scope of section 703(a)(1) is not confined to explicit discriminations based 'solely' on sex. In forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes." [100] In reaching this conclusion, the court reviewed the legislative history of Title VII, and discovered that Congress had specifically rejected just such an amendment to the Act that would have restricted Title VII's scope. [101]

Based on its acceptance of the principle underlying the Manhart and Sprogis decisions, the Supreme Court apparently has approved an interpretation of "sex" for Title VII purposes that would permit courts to consider characteristics other than the merely "anatomical." In light of this interpretation, Holloway's assertion that "sex" must be given its "plain meaning" falters.

The Supreme Court has since provided further authority for this broad interpretation of the term "sex" in Price Waterhouse v. Hopkins. [102] In Price Waterhouse, the Court held that a female associate of an accounting firm who was denied partnership despite her "outstanding performance" [103] had been discriminated against on the basis of sex. The ruling is significant for purposes of this discussion because the Court made its determination not by finding Hopkins was discriminated against because she was a woman, but because she was a woman who simply failed to exhibit the stereotypical characteristics expected of women.

In its review of the case, the Court examined the nature of the discrimination, and found it to be based on stereotypical notions of sex. It particularly noted the partners' comments justifying their decision not to offer Hopkins a partnership position. Such comments included descriptions of her aggressive personality as "macho," and as "overcompensating for being a woman." [104] One partner suggested that she take a charm school course, and another went so far as to suggest that her chances for partnership would improve if she would "walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry." [105] Commenting on such sex-stereotyping, the Price Waterhouse Court stated:

1 In saying that gender played a motivating part in an employment decision, we mean that, if we asked the employer at the moment of the decision what its reasons were and if we received a truthful response, one of those reasons would be that the applicant or employee was a woman. In the specific context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not, has acted on the basis of gender. . . . An employer who objects to aggressiveness in women but whose positions require this trait places women in an intolerable and impermissible catch 22: out of a job if they behave aggressively and out of a job if they do not. Title VII lifts women out of this bind. [106]

The Court finally proposed that "if an employee's flawed 'interpersonal skills' can be corrected by a soft-hued suit or a new shade of lipstick, perhaps it is the employee's sex [107] and not her interpersonal skills that has drawn the criticism." [108]

"Sex," as it is used in Title VII jurisprudence, goes far beyond mere genital anatomy and encompasses the totality of an individual's sexual identity, even allowing consideration of characteristics and behaviors which might be labeled "masculine" or "feminine." For a non-transgendered woman such as Hopkins, her "sex" includes her attitudes, her behaviors, her manner of interacting with others--her "shade of lipstick" and the hue of her suit. And if she is discriminated against because of these stereotypes, or, more importantly for this discussion, because she fails to exhibit these stereotypes (the catch-22 situation noted by the Price Waterhouse Court) [109] the discrimination she encounters is labeled sex discrimination. When a non-transgendered individual suffers from an adverse employment decision predicated upon stereotypical characteristics and behaviors that may or may not be complementary to her anatomical sex, that individual has a cause of action under Title VII. The implication for the transgendered employee of this prohibition against sex stereotyping seems obvious.

At what point does a non-transgendered woman such as Hopkins, who wears no make-up or jewelry, curses, and interacts with others "aggressively," cross the line and become a transgendered man? When she begins wearing pantsuits with a tie? When she cuts her hair short and binds her breasts? When she undergoes a hysterectomy and starts growing a beard and mustache? And at what point will the courts deny her protection under Title VII?

By definition, the transgendered person literally embodies a plethora of sexual stereotypes that are contrary to her birth sex. The sex of the transgendered person is only partially based upon her genitals; the rest is a sometimes strange admixture of complementary and competing anatomical secondary physical characteristics, behaviors, life histories, psychological presumptions, and stereotypes. Nevertheless, the combination of these factors is what comprises the transgendered person's "sex"--not always "either/or," but often "both." This is the "something to do with sex" that impressed itself upon Judge Grady. [110] The day when the sexes were rigidly defined by stereotypical behaviors and anatomies is gone. [111]

Transgendered persons do not constitute a sort of in-between "third sex," to which courts should give some type of recognition. "Society recognizes only the two disparate sexes." [112] But while society may still legally recognize only two sexes, we also now recognize that they are not absolutely disparate or discrete, nor is each one immutable. An individual may choose to legally change her sex in all but a few American jurisdictions. [113] "[T]he law must keep pace with our vibrant and dynamic society." [114]

Title VII has as its focus individuals, not classes of individuals. [115] To insist that Title VII's plain meaning outlaws discrimination only "against women because they are women and against men because they are men" [116] is to ignore both the sex of the transgendered individual and the "basic policy of the statute." [117] To deny summarily protection to an individual whose "condition has not yet become stationary" [118] is to deny her the right granted her non-transgendered brothers [119] and sisters: to present evidence in a Title VII claim that shows "treatment of a person in a manner which but for that person's sex would be different." [120] Such a judicial policy serves only to deny transgendered people protection under the law against discrimination based on their sex.

B. Statutory Interpretation and the Necessity for Constitutional Concurrence

Modern case law, as developed by the circuit courts and affirmed repeatedly by the Supreme Court, establishes that the term "sex" as it appears in Title VII is to be interpreted broadly, and should also include those aspects of one's sexual identity that are considered characteristics and behaviors. [121] A statute that was drafted narrowly to deny transgendered persons as a class the protections that the Supreme Court suggests are available to all individuals would raise serious equal protection considerations. Therefore, any court that uses the Holloway interpretation to narrowly construe the meaning of Title VII does so at the risk of violating the Equal Protection Clause of the Constitution. Courts have the choice between interpreting the statute to exclude only transgendered persons, thus raising constitutional concerns, or interpreting the statute broadly regardless of transgender status, which would avoid these constitutional problems. Established judicial principles demand the latter.

In 1803, Justice Marshall proclaimed, "[t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws." [122] Yet, as we have seen, the circuit courts routinely deny transgendered persons protection under those statutes that Supreme Court precedents suggest would apply. Had Congress expressly classified and excluded this minority from Title VII, the question of equal protection would be appropriately addressed by the courts. In this case, however, the courts themselves are imputing a congressional intent that, in turn, raises this issue.

As Justice Marshall noted in Marbury, "it is emphatically the province and duty of the judicial department to say what the law is." [123] Through this statement, Justice Marshall justified the Court's power to void legislative actions if they are contrary to the "law" of the Constitution. The corollary of this principle is that, when interpreting ambiguous statutes, the Court is obligated to make such interpretations in light of established constitutional principles. "[T]he framers of the constitution contemplated that instrument as a rule for the government of courts, as well as of the legislature." [124]

The Court has addressed the question of statutory interpretation and the corresponding constitutional issues involved. Justice Brandeis put forth the "cardinal principle" [125] of statutory interpretation: that "if a serious doubt of constitutionality is raised, . . . this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided." [126] Legislative acts are to be interpreted in such a fashion that will avoid constitutional challenges. In United States v. Congress of Industrial Organizations, [127] the Court recognized the "elementary" principle that "if the statute be reasonably susceptible of two interpretations, by one of which it would be unconstitutional and by the other valid, it is our plain duty to adopt that construction which will save the statute from constitutional infirmity." [128] The Court summarized this issue in the following manner: "The obligation rests also upon this Court in construing congressional enactments to take care to interpret them so as to avoid a danger of unconstitutionality." [129]

Constitutional and statutory interpretation were at the heart of the equal protection argument raised by Holloway. The Holloway court was faced with two options: (1) to declare that Title VII includes transgendered persons and protects them against sex discrimination; or (2) to find that Title VII does not include them. The court decided the question without the benefit of any legislative history demonstrating Congressional intent or consideration of transgendered persons in a protected class of individuals. [130] Holloway's contention was that if Title VII is interpreted to exclude transgendered persons, issues of equal protection would arise. Because the court is obligated to interpret statutes to avoid constitutional challenges, [131] the only alternative would be for the court to find that transgendered persons are covered under the statutes. This the court was loathe to do, and as a consequence, it rejected Holloway's argument.

The Holloway court asserted that, because transgendered persons are not a "discrete and insular minority," [132] they do not comprise a suspect class, and thus the rational relation test was appropriate to evaluate Holloway's equal protection claim. The court continued by declaring, "it can be said without question that the prohibition of employment discrimination between males and females and on the basis of race, religion or national origin is rationally related to a legitimate government interest." [133]

After deciding the proper level of constitutional scrutiny for Holloway's equal protection claim, the court then sidestepped the question completely. Holloway's complaint was dismissed under the reasoning that "[a]n equal protection argument is clearly not appropriate," [134] because Holloway had, in the court's view, not actually alleged discrimination based on sex in the first place; rather, she raised a complaint based on her choice to "change her sex." [135] Such a complaint, said the court, was not actionable under Title VII and "certainly not in violation of the doctrines of Due Process and Equal Protection." [136]

In so holding, the Holloway court never decided whether permitting discrimination against transgendered persons bears any rational relation to some legitimate government interest. However, because the Holloway court did not respond to a specific statute permitting transgender discrimination, the question more accurately becomes: Would a hypothetical statute, similar in purpose and scope to Title VII but specifically permitting discrimination against transgendered persons, withstand a constitutional challenge under the rational relation test?

C. Equal Protection and Transgender Classification

In addressing whether such a statutory exclusion to Title VII would survive the rational relationship level of judicial scrutiny, it is advantageous to examine "transgender exclusion" under two separate theories.

The first theory approaches the issue as one of active exclusion, and looks at the rationale behind that exclusion. The analogous scenario would be an interpretation of Title VII that extended protection from discrimination on the basis of race to everyone except Caucasians, or on the basis of sex to everyone except men. Laws that disadvantage a particular group may withstand a constitutional challenge only if they are rationally related to a legitimate governmental interest. [137] Upon review of the legislative history of trans-exclusive congressional debate [138] considering measures other than Title VII, [139] it is clear there is no legitimate governmental interest that is served by denying transgendered persons their right of protection under Title VII.

The second theory posits a lack of inclusion; that is, the courts interpret Title VII as a law designed to carve out specific classes of people for favored treatment, while withholding favorable treatment for similarly-situated classes of people. For instance, had Title VII been interpreted to extend civil protections on the basis of race to African-Americans only, or on the basis of sex to women only, the constitutionality of the statute would be seriously questioned.

Because Title VII is interpreted to offer protection only to men-born-as-men and women-born-as-women, transgendered persons are left unprotected based on reasoning that would be rejected if courts applied it to any other group. Because of their unfavored status, courts have not afforded protection against discrimination based on sex to women-born-as-men and men- born-as- women. The constitutionality of this situation is as questionable as any of the aforementioned hypothetical scenarios.

1. Constitutionality of Disfavored Class Status

Recent case law addressing equal protection issues for other sexual minorities, including gays and lesbians, is instructive. Increasingly, the view is being adopted that sexual minorities do comprise definable groups, and equal protection considerations may be extended to individuals based on their membership within those groups. In Romer v. Evans, [140] the United States Supreme Court voided as unconstitutional Colorado's Amendment 2, which prohibited the state, or any municipality or political subdivision within the state, from passing any statute or ordinance that prohibited discrimination on the basis of sexual orientation. [141]

The Supreme Court of Colorado initially had determined that the amendment infringed on homosexuals' fundamental rights to participate in the political process, [142] and deemed the amendment subject to the strict scrutiny standard. [143] The court concluded that the amendment was unconstitutional, finding the State's argument that the amendment was narrowly tailored to serve compelling state interests unpersuasive. [144] The United States Supreme Court rejected the view that Amendment 2 must be reviewed under a strict scrutiny standard. [145] Nevertheless, the Romer Court did find that, even under the minimal review standard of the rational relation test, [146] the Equal Protection Clause of the Fourteenth Amendment did reach gays and lesbians. [147]

In its review, the Court focused directly on the nature of the amendment and its effect on the targeted group, gays and lesbians. The Court found that the amendment had the effect of singling out this group and "impose[d] a special disability upon those persons alone." [148] The Court also declared that "Amendment 2 . . . identifies persons by a single trait and then denies them protection across the board. . . . It is not within our constitutional tradition to enact laws of this sort." [149] The amendment's nature raised the presumption that the disadvantaged status imposed on gays and lesbians was "born of animosity toward the class of persons affected." [150] Noting that a desire to harm a "politically unpopular group" does not constitute a legitimate government interest, [151] the Court concluded that no justification existed for permitting such over-reaching discrimination against gays and lesbians. [152]

The Seventh Circuit Court of Appeals went farther in establishing a rational relationship basis for the protection of sexual minorities in Nabozny v. Podlesny. [153] In reviewing Nabozny's § 1983 [154] complaint, the court held that school officials had, solely because of the plaintiff's sexual orientation and gender, unconstitutionally denied him equal protection of the school district's anti-harassment and anti-battery policy. [155]

The Nabozny court charged the plaintiff with the burden of showing that the "defendants acted with nefarious discriminatory purpose, . . . based on his membership in a definable class." [156] Addressing the first requirement, the court deduced from the plaintiff's evidence and the defendants' admissions that Nabozny had been treated differently than other students, and that the discriminatory treatment was motivated by Nabozny's sexual orientation. [157] As to the second requirement, the court noted that numerous statutes exist which prohibit discrimination on the basis of sexual orientation, and therefore concluded that homosexuals are an identifiable minority. [158] The court invoked the rational relation test, and, after stating that it was "unable to garner any rational basis for permitting one student to assault another based on the victim's sexual orientation," [159] held for the plaintiff. [160]

The preceding discussion is the foundation, factually and legally, for the following discussion of equal protection for transgendered persons. First, the question must be raised whether transgendered persons are treated differently than all other possible classes as a result of the Holloway rationale. Second, the author will examine whether that different treatment is based on transgender status. Third, and finally, the author will search for a rational reason justifying that different treatment, which allegedly furthers a legitimate government interest.

a. Different Treatment of Transgendered Persons

The first issue to be addressed is the question of whether transgendered persons are treated differently from other persons when they are denied the protection of Title VII. Title VII is a remedial statute, with a broad scope, [161] and is intended to be "liberally construed in favor of the victims of discrimination." [162] Courts must avoid technical constructions when interpreting the statute. [163] Finally, a review of legislative history is unnecessary if the words of the statute are clear. [164] These are all familiar rules of statutory construction, and have been followed by courts interpreting Title VII. Yet, every one of them is breached when courts determine the applicability of Title VII to transgendered persons. The Seventh Circuit's opinion in Ulane v. Eastern Airlines [165] is illustrative. [166]

The court began by noting the remedial nature of Title VII and by acknowledging that many people may reasonably define "sex" and "sexual identity" as being identical. [167] Disagreeing with the district judge's finding to this effect, however, the court "scrounged around" [168] the legislative history of Title VII in an effort to ascertain a technical construction of the word "sex."

The Ulane court, like the Holloway court, looked at various failed legislative attempts to add "affectional or sexual orientation" into the Title VII classifications, and determined that Congress expressly voiced its intent to exclude homosexuals from Title VII's coverage. [169] From this exclusion, the court inferred that "sex" should be given a narrow meaning that excludes not only homosexuals but transsexuals and transvestites as well. [170] The court reasoned that, because Congress had rejected the amendments even after other courts had determined that transgendered persons were not covered under Title VII, Congress intended to incorporate the court decisions into the statute. [171] This inference is contrary to the fact that nowhere in the legislative history of any of these proposed, but failed, amendments does the word "transsexual" appear.

One glaring flaw in the Ulane opinion is the conflation of "sexual identity" with "sexual identity disorder." [172] The court begins its discussion of Title VII by characterizing the trial court's decision in the following statement:

1 The district court . . . agreed that homosexuals and transvestites do not enjoy Title VII protection, but distinguished transsexuals as persons who, unlike homosexuals and transvestites, have sexual identity problems; the judge agreed that the term "sex" does not comprehend "sexual preference," but held that it does comprehend "sexual identity." . . . We must disagree. . . . The words of Title VII do not outlaw discrimination against a person who has a sexual identity disorder. [173]

In this, the Seventh Circuit seems to have misapprehended the district court's argument entirely. The Seventh Circuit equated "sexual identity" with a pathological disorder. [174] The district court judge had instead determined that sex is more than mere anatomy, including such components as psychology, self-perception, and societal perception. [175] Thus, the district court's reasoning is more consistent with the intent of the Price Waterhouse Court than is the Seventh Circuit's opinion. [176]

As previously discussed in section II.A., Title VII jurisprudence has established that "sex" encompasses more than just one's anatomy. The line of cases following Holloway, however, has taken a different track by adhering to a narrow definition of sex. It appears, on its face, that once a court realizes it has a complaint of transgender discrimination before it, it blindly follows Holloway [177] without further examining the evolving definition of "sex." Such an analysis disregards cases after Holloway that expand the definition of sex. [178] Ignoring these recent cases, and adhering exclusively to the older precedent, denies transgendered litigants the benefits of evolving case law, and clearly treats them differently than non-transgendered litigants. Thus, a construction of Title VII that precludes a cause of action to transgendered persons based on a narrow definition of "sex" has the effect of treating them differently solely because of their transgender status.

b. Transgendered Persons as a Definable Class

The next task is to determine whether transgendered persons constitute a definable class for equal protection purposes. [179] The Holloway court asserted that transsexuals are not a "discrete and insular minority," [180] and concluded that they do not comprise a suspect class. [181] It is true that not all transgendered persons are identifiable "on sight." But the mere lack of a suspect classification does not impute a lack of identification as a minority for equal protection purposes. [182] The significance of suspect classification lies merely in the level of review the courts will employ to address equal protection claims. Having previously determined that the focus of this discussion is judicial review under the rational relation test, [183] we need only ascertain whether transgendered persons constitute a minimally- definable class of persons.

The Nabozny court looked at statutory provisions that both grant and prohibit protection on the basis of sexual orientation, and acknowledged the reality that gays and lesbians comprise an identifiable group. [184] In an analogous fashion, transgendered persons can be shown to comprise a definable class of persons as well.

The most blatant examples of transgender classification are found in the Americans With Disabilities Act ("ADA") and the Rehabilitation Act of 1973 ("Rehabilitation Act"). There, by successive amendments, transsexuals, transvestites, and others suffering from gender identity disorders were excluded from protection under these statutes. [185] In addition, several states have adopted similar language in their state disability statutes to the same exclusionary effect. [186] On the other hand, some municipalities have worded their non-discrimination ordinances so as to extend protections specifically to transsexuals or other transgendered categories of persons, on the basis of gender identity. [187]

These examples, coupled with the reasoning of the Nabozny court, demonstrate that transgendered persons comprise a definable class of persons. Furthermore, the conclusion is inescapable that transgendered persons, when denied equal protection under Title VII because of their transgenderism, are discriminated against because of their membership in this definable minority group.

c. Rational Basis for Transgender Discrimination

Having established that transgendered persons, as a class, fall within the ambit of equal protection doctrine, we must address the question of whether there could be a rational basis for Congress to narrowly exclude transgendered persons from Title VII.

As previously noted, no legislative history exists to indicate that Congress ever considered transgendered persons when drafting or amending Title VII. [188] There is, however, a small amount of legislative history behind Congress's exclusion of transgendered persons from the ADA and the Rehabilitation Act. A review of this history does not suggest any rationale that would withstand even the minimal level of judicial review.

Transgendered persons were excluded from protection under the ADA by way of an amendment sponsored by Senator Armstrong of Indiana. [189] In support of his amendment, Senator Armstrong recognized the fact that the question of "what constitutes impairment" under the ADA would necessarily need to be determined by the specific facts, on a case-by-case basis. He suggested that a "coached witness" would be able to state the facts in such a way as to more likely prevail in a discrimination lawsuit. [190] He cited Blackwell v. United States Department of Treasury [191] and Doe v. United States Postal Service [ 192] as examples of transgendered persons who had successfully stated claims under the Rehabilitation Act. Based on these precedents, Armstrong concluded that, should these and other "mental disorders" remain actionable under the ADA, the private sector would be "swamped" with mental disability litigation. [193] His amendment was calculated to exclude "some of the mental disorders that would have created the most egregious lawsuits." [194] However, Armstrong offered no rationale for choosing the particular disorders he identified as "most egregious" for exclusion from the legislation.

Armstrong's argument rationalizing the exclusion of transgendered persons fails for a number of reasons. First, Armstrong's fear that allowing a transgender cause of action would "swamp" the private sector with litigation is unfounded. Statistics show that transgendered persons, while growing as a class, still comprise a fraction of a percentage of the United States population. [195] In light of the small numbers involved, it is difficult to see how transgender inclusion would inundate the courts with an unmanageable amount of litigation. [196] More importantly, though, the Armstrong amendment has the effect of classifying transgendered persons merely for the sake of classification, and denies them protection of the ADA under all circumstances.

When considering other employment rights bills, Congress has continually refused to discuss the plight of the transgendered employee. The Employment Non-Discrimination Act ("ENDA"), a bill designed to protect gays and lesbians from employment discrimination, is a case in point. Transgender activists testifying before the United States Senate Labor and Human Resources Committee [197] pleaded for transgender inclusion in ENDA. There is nothing in the record of congressional debate, though, that indicates that these pleas were ever considered.

Outside the arena of employment rights legislation, attempts have been made to declare Congress's view of transgendered persons. Specifically, Senator Hutchinson attempted to attach an amendment to the Foreign Relations Revitalization Act. [198] Hutchinson's amendment was intended to provide guidance to the United States delegation to the 1995 United Nations Conference on Women in Beijing, China. [199] The amendment expressed especial concern that the United Nations' definition of "gender" was inclusive of transsexuality, [200] and that the "sense of Congress" [201] should be that gender should be defined as "the biological classification of male and female, which are the two sexes of the human being." [202]

In support of the Hutchinson amendment, Senator Helms argued that "there is already too much kowtowing to fringe elements," declaring that such "fringe elements" seek to peddle their "bizarre views" which include, inter alia, the concept that gender might include transsexualism. [203] Despite the forceful arguments in favor of the Hutchinson amendment, it was withdrawn on December 14, 1995, [204] and thus, the "sense of Congress" that transgendered persons should be excluded from Congress's view of what constitutes gender was not adopted.

The foregoing constitutes the extent of Congress's consideration of transgender issues. It is a sparse record, but one which gives voice to two reasons why Congress may wish to exclude transgendered persons from Title VII.

The first reason is the one advanced by Senator Armstrong, that exclusion of transgendered persons serves to reduce the threat of an overwhelming number of lawsuits. Assuming that such a concern may be legitimate, excluding transgendered persons is not a permissible means of achieving that goal. As noted previously, the Armstrong amendment classifies transgendered persons for the mere sake of classification, while offering no rationale as to why transgendered persons were selected for disadvantaged status. Indeed, the status accorded transgendered persons is certainly one of active disadvantagement: Having gained civil protections as a class via the courts, [205] transgendered persons had that protection rescinded by way of the Armstrong amendment.

Congress's status-based action runs counter to the doctrine of constitutional equal protection as set forth by the Supreme Court in Romer v. Evans. As stated by the Court, it is imperative that "classifications are not drawn for the purpose of disadvantaging the group burdened by the law." [206] Accordingly, the argument for transgender exclusion, as set forth by Senator Armstrong, fails on constitutional grounds.

The unvoiced rationale for excluding transgender persons lies in the Hutchinson amendment, and provides further reason why transgender exclusion is constitutionally invalid. The Hutchinson amendment expressed the belief of some in Congress that "sex" may not include transgenderism. While the amendment was subsequently withdrawn, the force of argument in its favor belies the pedigree of its origin. Characterizing the proponents of transgender inclusion as "fringe elements" peddling their "bizarre views" is pure animosity toward the transgendered. As noted by the Romer Court, a classification may not be "born of animosity toward the class of persons affected." [207] Therefore, such animosity is prohibited as a rationale for exclusion. [208]

2. The Constitutionality of Favored Class Status

Title VII affords individuals protection against discrimination on the basis of race, color, religion, sex, or national origin. [209] As noted in section II.C.1.a, Title VII is a remedial statute, designed to provide a civil remedy against discriminatory practices. The categories of protection are purposefully broad, and are meant to be interpreted liberally in order to accomplish Title VII's goals. [210]

Title VII does not provide a definition of sex, just as a similar definition for the term "race" was also omitted. It had once been suggested that the intent of Title VII was to operate primarily to the benefit of women. [211] It is now generally recognized that Title VII is intended to prohibit discrimination against all individuals, regardless of their sex. [212] It has never been suggested, though, that Title VII was intended to offer protection only to non-transgendered persons, that is, women who were born as women and men who were born as men. However, that is the direct consequence of Holloway's rationale.

When a transgendered person suffers from an adverse employment decision, it is generally because the employer objects to the fact that she [213] is "really" a man, or that she used to be a man. [214] What the employer is objecting to is the fact that the employee no longer exhibits the stereotypical characteristics and behaviors of the sex the employer considers his or her employee to be. This reason flies in the face of the reality that the transgendered individual often exhibits many of the stereotypical traits of her new sex flawlessly. On its face, this motivation and resulting action violates Title VII. [215]

The underlying rationale, though, is that the transgendered employee is being "tracked" or monitored by her employer over the course of her life as a means of defining what her sex "really" is. Particularly in the case of a post-operative transsexual, this "past-tracking" has no relevance to her present reality. Yet, the courts have permitted this, and have found that Title VII will not extend to women who were born as men, or vice versa. [216] As such, the effect of Title VII is to extend protections against sex discrimination only to non-transgendered men and women.

The Ulane decision is again illustrative of the argument. Following Holloway, the Ulane court ruled that Ulane was not protected on the basis of her transsexuality because Title VII does not extend to transsexuals. [217] But Ulane also argued that Eastern discriminated against her because she was a female. [218] While acknowledging Holloway's dicta that "transsexuals claiming discrimination because of their sex, male or female, would clearly state a cause of action under Title VII," [219] the court dismissed Ulane's action, typifying her complaint of discrimination not as being based on the fact that she was a female who was fired from the same job she did as a male, [220] but because she was "transsexual--a biological male who takes female hormones, cross-dresses, and has surgically altered parts of her body to make it appear to be female." [221]

By disputing Karen Ulane's legal status as a female, the Court of Appeals for the Seventh Circuit not only denied Ulane her cause of action, but also the fundamental class status necessary to assert a claim. This denial disregarded the fact that Illinois had issued a new birth certificate to reflect her new sex. [222]

The court, in denying Ulane's female status, asserted that she was in fact discriminated against because she was a transsexual, not because she was a female. However, the court also noted that "[b]ecause of our holding in section A [that transsexuals are not covered under Title VII], however, we need not and do not decide whether Eastern actually discriminated against Ulane because of her transsexuality." [223] This kind of tautological reasoning is specious.

By merely impugning that Ulane was discriminated against because of her transsexualism, Eastern effectively estopped Ulane from filing any cause of action under Title VII against it. In effect, the court held that Ulane's past sex was of far more importance than her present sex. However, her past sex could not form the basis for a present cause of action. Ulane was therefore barred from stating a claim as to either sex, effectively removing Title VII from her reach. This is the state of Title VII as applied to transgendered persons: Because of one's past sex, the statute is inapplicable as to either sex.

By enacting Title VII, Congress decided to extend protection against discrimination on the basis of sex. But, does an interpretation of Title VII that grants protection only to men-born-men and women-born-women bear any rational relationship to the governmental interest behind its enactment of Title VII?

Again, the proper level of judicial review is minimal. [224] Taking the reverse of the arguments set forth in section II.C.1, it is established that non-transgendered persons are granted a preferred position under Title VII over transgendered persons, and that this preference is solely because of their non- transgendered status. It remains to be determined whether this preference for non-transgendered persons is rationally related to any legitimate government interest.

The fundamental purpose of Title VII is to "make men and women equals in the market place." [225] To this end, courts have held that either men or women can state a claim of discrimination under the statute. [226] There is nothing in the statute to suggest, however, that one's classification for protection purposes is in any way time-dependent. [227]

For instance, when one files a complaint alleging sex discrimination, one may allege that she was discriminated against "because she is a female." How then should the statute become inapplicable once a plaintiff alleges she was discriminated against "because she is now a female" ? As even the Holloway court admitted, the government has a legitimate interest in prohibiting employment discrimination on the basis of sex. [228] It is irrational to suggest that, by denying a plaintiff a present cause of action because of her past sexual status, she will be assured of equal treatment in her new sexual status. To quote Justice Marshall, "[t]his is too extravagant to be maintained." [229]

There is no rational basis for holding that Title VII's definition of sex extends to non-transgendered persons only. Therefore, the courts have the duty to "say what the law is," [230] and declare that Title VII reaches to all persons, regardless of their past sexual status.


It is clear that the Holloway court, given the two options presented to it, chose wrongly. Instead of acknowledging Ramona Holloway's protection against sex discrimination under Title VII, the court chose to interpret the statute to exclude Holloway. Holloway's flawed exclusion of transgendered persons from Title VII runs afoul of equal protection doctrine, and every case that follows Holloway's rationale perpetuates this injustice.

One may suggest that in 1977, the Holloway court had little in the way of Title VII jurisprudence to guide its discussion regarding the question of sex under the statute. Such a view, however, fails to explain the court's apparent ignorance of Sprogis, decided seven years earlier; nor does it address the court's failure to anticipate the United States Supreme Court's Manhart decision, rendered the following year. Given the tortured and conclusory rationale the Holloway court offered for its reasoning, one can wonder whether it might not fall analogously within that category of laws the Supreme Court has characterized as being "so discontinuous with the reasons offered for it" that it "seems inexplicable by anything but animus toward the class it affects." [231]

Regardless of its origin, however, the Holloway precedent must be abandoned. The impact that Holloway has on the transgender community is devastating. The word "transsexual" (or "transgender") has a talismanic effect on the courts; once the word is uttered in a complaint, the rule of Holloway is too often invoked. But by automatically invoking Holloway, the courts deny the transgendered litigant benefit--and equal protection--of the history of favorable precedents that have developed in Title VII jurisprudence since 1977.

Our society has become vastly different from what it was in 1977. Science has thrust technology and medicine forward and politics has done the same for tolerance of social diversity. Both have had radical impacts on the transgender community. Yet, transgender jurisprudence has been frozen in time, locked into a mode of thinking that is, literally, decades old. It is a thinking that has oppressed a small, but growing, segment of society.

As the European Court of Justice opined in P. v. S. & Cornwall County:

1 Such discrimination is based, essentially if not exclusively, on the sex of the person concerned. Where a person is dismissed on the ground that he or she intends to undergo, or has undergone, gender reassignment, he or she is treated unfavorably by comparison with persons of the sex to which he or she was deemed to belong before undergoing gender reassignment. . . .To tolerate such discrimination would be tantamount, as regards such a person, to a failure to respect the dignity and freedom to which he or she is entitled, and which the Court has a duty to safeguard. [232]

The American legal system, as the arbiter of law within one of the most liberated societies in existence, owes its transgender litigants no less a duty. It is, as the Tenth Circuit has suggested, [233] time to reevaluate Holloway.


1. Christine Jorgensen was born as George Jorgensen, Jr., in 1926. Christine Jorgensen, Christine Jorgensen: A Personal Autobiography 6 (1967). After a brief stint as an army clerk processing discharged soldiers after World War II, id. at 36-43, she traveled to Denmark, ostensibly to visit relatives and to photograph Scandinavia as a free-lance cinematographer. Id. at 94-95. Her real reason for traveling to Europe, though, was to seek treatment under Dr. Christian Hamburger in Copenhagen, Denmark. Id. Dr. Hamburger had been exploring the possibility of "converting" gender dysphoric men into women, and under his ministrations, Christine successfully completed her transition from man to woman. However, upon her return to the United States in 1953, she became the center of a flurry of sensationalist media attention. Id. at 184- 201.

2. See, e.g., Jordan Park, Half (1953). Half claims to be the story of a male "hermaphrodite" who underwent sexual reassignment surgery nine years before Christine Jorgensen's transition became popularized. The novel intimates that "sex change" operations are merely corrective procedures on abnormal genitals, rather than true conversions performed on anatomically intact men and women.

3. "Transgender" is a term that has recently come into general usage to inclusively describe the burgeoning social and political community which is developing around and which embraces the following subgroups:

Transsexuals--individuals who identify emotionally and psychologically with the sex opposite to their birth sex and seek surgical alteration of their genitalia to conform to that sex. This includes male-to-female (M2F or MTF) and female-to-male (F2M or FTM) persons. Transsexuals often distinguish among themselves those who have had sex reassignment surgery (post operative, or post-ops) and those who have not (pre-ops). Transvestites--individuals, usually heterosexual males, who occasionally adopt some or all of the clothing, mannerisms and other artifacts of the opposite sex. Most transvestites prefer the term "cross-dresser" as a label to distinguish transvestism having a gender dysphoric etiology from fetishistic (erotic) transvestism. Transgenderists--individuals who identify themselves as members of the opposite sex and often live as the opposite sex, but do not seek genital surgery, although they may undergo hormonal therapy and other reconstructive surgery to present an image more in keeping with their chosen sex. Transgenderists are sometimes considered as "non-op" transsexuals. Drags--individuals, often gay males, who employ dramatic clothing and mannerisms of the opposite sex, either for entertainment purposes or for their shock value.

Gender Vocabulary, fact sheet distributed by Action AIDS, 1216 Arch Street, Philadelphia, Pennsylvania 19107. See also Martine Rothblatt, The Apartheid of Sex 16-19 (1995) (discussing distinctions between transsexuals and crossdressers within the transgender community); Debbie Mitchell, Defining Transvestism, 70 Tapestry J. 35, 35-36 (1995) (discussing different subdivisions of transgendered persons).

4. While the American public seemingly loves RuPaul and the "To Wong Foo" gals in To Wong Foo, Thanks for Everything, Julie Newmar (Walt Disney Pictures 1996), the reality off the stage is much different. In her involvement with the transgender community, this author has met those who have been ostracized by their families, churches, or communities (singly or in varying combinations); have been demoted at work, lost jobs, and lost careers; have lost their health, lost limbs, and lost their lives. As one transsexual woman remarked to this author, "[T]here isn't one of us in this community who hasn't lost something dear to them." See also J.J. Allen, The Man in the Red Velvet Dress: Inside the World of Cross-Dressing 104 (1996) (discussing non-economic costs associated with transgender transitions).

5. By "generation," this author refers to both chronological and attitudinal changes in the transgender community over the past 45 years. The transgender community from 1952-1969 could be characterized as one in search of a foundation. This was a period when medical management and surgical techniques used by a large segment of the community were being developed and perfected, and small enclaves of transgendered persons were pulling together and identifying themselves. The community was in an internalized mode of development, looking inward for answers to questions about self and substance. In 1969, the "Stonewall Riots" and subsequent events marked a shift in the transgender community to outward expression, a period of greater public awareness and eventual assimilation into mainstream society. The last two or three years have seen another shift in the focus of the transgender community. Having gained at least the promise of parity with their non-transgendered neighbors, many activists are now directing their energies into the political arena. This new activism is evidenced by the existence of no less than seven national transgender organizations (American Educational Gender Information Service, FtM International, the International Conference on Transgender Law and Employment Policy, Inc., the International Foundation for Gender Education, It's Time America!, Renaissance Education Association, Inc., and the Society for the Second Self), and the chartering of the Gender Public Advocacy Coalition (GenderPAC), on Nov. 2, 1996, in Philadelphia, PA. GenderPAC exists, inter alia, to lobby federal legislators and to act as a political liaison between the transgender community and Congress. See generally Articles of Association for the Gender Public Advocacy Coalition, presented November 2, 1996 (on file with Temple Law Review) (establishing GenderPAC organization, outlining its purpose and policies, and defining responsibilities of member organizations).

6. Figures released by the American Psychiatric Association ("APA") and the International Foundation for Gender Education estimate the prevalence of post- operative transsexuals at approximately 1/30,000 of the male population electing to change their sex to female, and 1/100,000 of the female population electing to change their sex to male. Figures for pre-operative and non- operative transsexuals/transgenderists are much higher, at approximately one out of 1,600 persons in the general population. Estimating the United States population at 340,000,000, these figures suggest a transgender population of nearly 225,000. Marla Aspen, De-Medicalization of Transsexualism and De- Classification of Sex, 65 Tapestry J. 11, 11, 20 (1993). The ability of many transgendered persons to "rewrite their pasts," however, renders such figures suspect.

7. "Woodworking" refers to those transsexual persons who have integrated themselves quietly and completely into society as the sex of their choice, and are not generally known to be transsexual, sometimes even to their spouses and children.

8. The scope of this Comment is intended to reach only to employment-related areas of discrimination. It will not address special discriminations often faced by transgendered people, such as name change difficulties, redesignation of gender on official documents, marriage, etc.

9. Compare Doe v. Boeing Co., 846 P.2d 531, 536 (Wash. 1993) (finding transsexual not protected under state disability discrimination statute) with Seattle Municipal Code chapters 14.04 et seq. (Fair Employment Practices) (defining "sexual orientation" as including transsexuality and transvestism).

10. Transgendered persons are not protected under federal laws prohibiting discrimination on the basis of a handicap or disability. See generally Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12211(b)(1) (1994); Rehabilitation Act of 1973 ("Rehabilitation Act"), 29 U.S.C. § 706(8)(F)(i) (1994). The following state statutes contain language substantially similar to the ADA and Rehabilitation Act, denying similar benefits under the relevant disability and/or housing law to transgendered persons: Ind. Code Ann. § 22-9-5-6(d)(3) (Burns Supp. 1992); Iowa Code Ann. § 15.102(5)(b)(1)(b) (West 1995); La. Rev. State. Ann. § 51.2232(11)(a)(iii)(b) (West Supp. 1997); Neb. Rev. Stat. § 48- 1102(9) (1993); Ohio Rev. Code Ann. § 4112.01(A)(16)(b)(ii) (Anderson 1995); Okla. Stat. tit. 25, § 1451(6) (West Supp. 1997); Tx. Prop. Code Ann. § 301.003(6) (West 1995); Va. Code Ann. § 36-96.1:1 (Michie 1996). See also Doe, 846 P.2d at 536 (protection under state disability statute does not extend to transsexuals); Dobre v. National R.R. Passenger Corp. ("AMTRAK"), 850 F. Supp. 284, 289-90 (E.D. Pa. 1993) (same).

Additionally, courts have generally found that transgendered persons are not protected under ordinances prohibiting discrimination on the basis of sexual orientation. See, e.g., Underwood v. Archer Management Servs., 857 F. Supp. 96, 98 (D.D.C. 1994) (holding that District of Columbia Human Rights Act defines "sexual orientation" to include "male or female homosexuality, or bisexuality," but not transsexuality); Maffei v. Kolaeton, 626 N.Y.S.2d 391, 394 (N.Y. Sup. Ct. 1995) (citing Underwood, and holding that New York City ordinance prohibiting discrimination on basis of sexual orientation does not apply to transsexuals).

11. See Eric Matusewitch, Does Title VII Protect Transsexuals at Work: Federal Prohibitions Against Discrimination are Nonexistent, Legal Intelligencer, Jan. 22, 1996, at 9 (discussing general overview of transgender civil rights under Title VII).

12. "Cross-gendered behavior" refers to gender-specific behavior which is inconsistent with one's biological sex. Examples of cross-gendered behaviors include feminine mannerisms in men and crossdressing.

13. Courts have consistently relied on the narrow definition of the term "sex" in Title VII as set forth in Holloway v. Arthur Anderson, Co., 566 F.2d 659 (9th Cir. 1977). See infra notes 31-32 and accompanying text for a discussion of the Holloway court's definition of "sex" in Title VII.

14. This Comment examines the argument favoring a "rational relation" between the Holloway interpretation and the goals of Title VII. As such, a court's review of that relationship is minimal.

15. See, e.g., Romer v. Evans, 116 S. Ct. 1620, 1627-28 (1996) (declaring that law disadvantaging lesbians and gays may be voided as unconstitutional under minimal judicial review).

16. 990 F.2d 319 (7th Cir. 1993).

17. Id. at 320. The Haas court used the term "transsexualism" in the passage quoted. For reasons of political necessity and the desire for self- identification and self-definition, many of the more activist members of the "trans" movement have adopted the term "transgender" as the inclusive label for this minority group. See Rothblatt, supra note 3, at 16 (commenting on "grass- roots transgender movement"). One prominent transgender activist suggests that "[s]ometimes we need to subsume our transsexual identity for political purposes." Jessica Xavier, addressing annual organizational meeting of It's Time, Maryland!, Sept. 9, 1996.

18. See, e.g., Anonymous v. Mellon, 398 N.Y.S.2d 99, 102-03 (N.Y. Sup. Ct. 1977) (holding that Bureau of Vital Records is not required to show changed sex on birth certificate). But see Darnel v. Lloyd, 395 F. Supp. 1210, 1214 (D. Conn. 1975) (holding that state's refusal to change sex designation on post-operative male-to-female transsexual's birth certificate violated her equal protection rights and possibly substantive due process by implicating fundamental interest in marriage).

19. See, e.g., In re Ladrach, 513 N.E.2d 828, 832 (Ohio Prob. Ct. 1987) (denying male-to-female transsexual a marriage license to marry male). But see M.T. v. J.T., 355 A.2d 204, 211 (N.J. Super. Ct. 1976) (refusing to annul marriage between male and post-operative male-to-female transsexual as being unlawful).

20. See, e.g., Pinneke v. Preisser, 623 F.2d 546, 549 (8th Cir. 1980) (holding that state regulation refusing Medicaid funding for sexual reassignment surgery is not consistent with objectives of federal Medicaid statute); Doe v. State, Dep't of Pub. Welfare, 257 N.W.2d 816, 820 (Minn. 1977) (holding that state regulation denying Medicaid payments for sexual reassignment surgery violates federal regulations).

21. See, e.g., Farmer v. Brennan, 511 U.S. 825, 114 S. Ct. 1970, 1984-85 (1994) (finding that placing pre-operative male-to-female transsexual prisoner in general male prison population may constitute cruel and unusual punishment).

22. 566 F.2d 659 (9th Cir. 1977). Applicability of Title VII protection to transsexuals had been previously addressed in two federal district court cases. See generally Voyles v. Ralph K. Davies Med. Ctr., 403 F. Supp. 456, 457 (N.D. Cal. 1975) (denying Title VII relief to transsexual), aff'd, 570 F.2d 354 (9th Cir. 1978); Grossman v. Bernards Township Bd. of Educ., 11 Empl. Prac. Dec. (CCH) P10,686, 6884-85 (D. N.J. 1975) (same), aff'd, 538 F.2d 319 (3d Cir. 1976). Subsequent courts addressing the issue, however, have relied primarily on the Holloway circuit court decision. See also Terry v. Equal Employment Opportunity Comm'n, 35 Fair Empl. Prac. Cas. (BNA) 1395, 1396- 97 (E.D. Wisc. 1980). The Terry court summarized Holloway as follows:

The [Holloway] court concluded that Title VII does not reach the situation... the court also analyzed equal protection arguments and concluded that equal protection arguments were inappropriate.... Title VII and the Constitution do not protect [transsexuals]. The law does not protect males dressed or acting as females and vice versa.


23. Plaintiff was a male-to-female transsexual. Out of respect for the difficult life choices made by the different parties within this Comment, each person's chosen and expressed gender will be used as an identifying feature, regardless of her or his actual anatomic sex.

24. Holloway, 566 F.2d at 661.

25. Id.

26. Id.

27. Specifically, 42 U.S.C. § 2000e-2(a)(1) (1994) reads:

It shall be an unlawful employment practice for an employer--(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individual's race, color, religion, sex, or national origin.


28. Holloway, 566 F.2d at 661.

29. Id.

30. Id. at 662.

31. Id.

32. Id.

33. Id. at 662 n.6.

34. The court summarized Holloway's argument as follows:

[Appellant argues that] we must follow the "cardinal principle" of statutory construction as expressed by Justice Brandeis.... That principle is that one must construe statutes so that constitutional questions may be avoided if at all possible. Therefore, the proper construction of Title VII, according to appellant, is that transsexuals are protected, thus avoiding all possible equal protection problems.

Id. at 663 (citing Ashwater v. Tennessee Valley Auth., 297 U.S. 288, 347 (1936)).

35. Id.

36. Id. at 663-64.

37. Id. at 664.

38. Id. (Goodwin, J., dissenting).

39. Such an assertion, however, contradicts later court rulings. See, e.g., Ulane v. Eastern Airlines, 742 F.2d 1081, 1087 (7th Cir. 1984) (holding that post-operative transsexual cannot state claim of sex discrimination based upon her new female sex).

40. Holloway, 566 F.2d at 664 (Goodwin, J., dissenting).

41. Id. (Goodwin, J., dissenting).

42. Subsequent circuit court decisions have relied on the same reasoning put forth in Holloway, often citing the Holloway opinion directly. See, e.g., Ulane, 742 F.2d at 1085 (recognizing distinction between transsexualism and homosexuality, but holding that "sex" means "biological male or biological female," not "sexual identity"); Sommers v. Budget Mktg., 667 F.2d 748, 750 (8th Cir. 1982) (finding that because Congress refused to amend Title VII to include "sexual preference," a narrow definition of "sex" should be enforced); James v. Ranch Mart Hardware, Inc., 881 F. Supp. 478, 481 (D. Kan. 1995) (holding that transsexuals cannot state claim under Title VII); Dobre v. National R.R. Passenger Corp. ("AMTRAK"), 850 F. Supp. 284, 286 (E.D. Pa. 1993) (defining "sex" by anatomical characteristics, not sexual identity); Wood v. C.G. Studios, 660 F. Supp. 176, 178 (E.D. Pa. 1987) (reasoning that Title VII does not extend to include transsexuals); Powell v. Read's, Inc., 436 F. Supp. 369, 370 (D. Md. 1977) (holding that Title VII does not extend to transsexuals, homosexuals, or bisexuals).

43. In contrast to American judicial precedent, the Court of Justice of the European Communities, applying a liberal interpretation to the term "sex," recently reasoned in Case C-13/94, P. v. S. & Cornwall County Council, 2 C.M.L.R. 247 (1996), that transsexuals are included within the purview of sex non-discrimination statutes. In the opinion written by Mr. Giuseppe Tesauro, the European court reviewed American jurisprudence regarding transgender discrimination, and expressly rejected its underlying reasoning. Mr. Tesauro characterized the American thinking as finding no sex discrimination because "'female transsexuals' are not treated differently from 'male transsexuals.' In short, both are treated unfavourably, hence there can be no discrimination at all." Id. at 256. Mr. Tesauro took particular note of Holloway, stating that the Holloway case was "exactly like this one, in which it was held to be lawful to dismiss a transsexual for starting treatment to become a woman." Id. at 257 n.22.

44. 626 N.Y.S.2d 391 (N.Y. Sup. Ct. 1995). The plaintiff, Daniel Maffei, a female-to-male transsexual, charged that his employer had discriminated against him in violation of New York City regulations, which prohibit discrimination on the basis of sex.

According to the court, the Administrative Code of City of New York § 8- 107(1) reads:

It shall be an unlawful discriminatory practice:

(a) For an employer or an employee or agent thereof, because of the actual or perceived age, race, creed, color, national origin, gender, disability, marital status, sexual orientation or alienage or citizenship status of any person, to refuse to hire or employ or to bar or to discharge from employment such person or to discriminate against such person in compensation or in terms, conditions or privileges of employment.

Id. at 392.

The employer filed a motion to dismiss, arguing that transsexuals were not covered under any of the enumerated classes of persons protected by the regulation. The trial court, while agreeing that Maffei was not protected under the category of sexual orientation, denied the motion to dismiss, holding that transsexuals were protected under the regulation's proscription against gender discrimination. Id. at 396.

45. Id. at 394-95 (citations omitted).

46. Id. at 394.

47. Id. at 395-96.

48. Id.

49. Id. at 396 n.1.

50. Shoiber v. Emro Mktg. Co., 941 F. Supp. 730, 733-34 (N.D. Ill. 1996) (citing Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 73 (1986)).

51. 490 U.S. 228 (1989).

52. Id. at 240.

53. Id. at 251 (quoting Los Angeles Dep't of Water & Power v. Manhart, 435 U.S. 702, 707 n.13 (1978)). The Manhart Court relied for its wording on Sprogis v. United Air Lines, Inc., 444 F.2d 1194, 1198 (7th Cir. 1971). Sprogis was one of the first circuit court decisions to state that employment decisions based upon stereotypical beliefs regarding one sex or another violated Title VII's prohibition against sex discrimination. Id. at 1197- 98. The significance of this expansion to the current discussion is examined infra in section II.A. For a general discussion of sex stereotyping and its application to cross-gender characteristics and behaviors, see Mary Anne C. Case, Disaggregating Gender from Sex and Sexual Orientation: The Effeminate Man in the Law and Feminist Jurisprudence, 105 Yale L.J. 1 (1995).

54. Equal protection arguments for transgendered defendants charged with violating crossdressing ordinances have been successful in numerous earlier cases. See, e.g., Doe v. McConn, 489 F. Supp. 76, 80-81 (S.D. Tex. 1980) (holding that city anti-crossdressing ordinance infringes on fundamental liberty interest of transsexuals); Chicago v. Wilson, 389 N.E.2d 522, 525 (Ill. 1978) (holding that city anti-crossdressing ordinance infringes on fundamental liberty interest to dress as one chooses); Cincinnati v. Adams, 330 N.E.2d 463, 466 (Hamilton Co. Mun. Ct. 1974) (declaring that anti- crossdressing ordinance was unconstitutional as violative of fundamental right to dress as one chooses). The reasoning in Chicago v. Wilson is illustrative. In Wilson, Wallace Wilson and Kim Kimberley were arrested as they left a restaurant where they had just eaten breakfast. Both defendants, although possessing male genitalia, were dressed in female clothing, complete with brassieres and garter belts. Wilson, 389 N.E.2d at 522. Despite the fact that they were under medical treatment for transsexualism and were required, as part of their treatment, to dress as females and adopt female life-styles, both were subsequently charged with violating section 192-8 of the Municipal Code of the City of Chicago, which prohibited a person from wearing the clothing of the opposite sex with the intent to conceal his or her true sex. Id. at 523.

Wilson and Kimberley filed a motion to dismiss the charges on the grounds that the ordinance was unconstitutional, in that it infringed upon their freedom of expression and privacy rights. The trial court denied the defendants' motion to dismiss, as did the Illinois Appellate Court. Id. at 522. The trial court subsequently found Wallace and Kimberley guilty of crossdressing in violation of the ordinance. However, the Illinois Supreme Court reversed, finding that the overly-broad ordinance did indeed violate the defendants' constitutional liberty interest in their appearance. Id. at 525. Significantly, to reach its decision, the court applied the rational relation test, a level of constitutional review that the Holloway court stated would not offer equal protection to transgendered persons.

The Wilson court first looked to decisions of the United States Supreme Court to determine whether the defendants had a liberty interest in their appearance, and found that they did under Kelly v. Johnson. Id. at 523 (citing Kelly v. Johnson, 425 U.S. 238 (1976)). While acknowledging that choice of appearance is not a fundamental right, the court relied on Kelly to determine that some constitutional principles operated to restrict the municipality's authority over its citizens' life-styles. In doing so, the Wilson court focused on whether the ordinance was rationally related to the city's legitimate objectives. The city argued that the ordinance was necessary in order: "(1) to protect citizens from being misled or defrauded; (2) to aid in the description and detection of criminals; (3) to prevent crimes in washrooms; and (4) to prevent inherently antisocial conduct which is contrary to the accepted norms of our society." Id. at 524. The Wilson court concluded that, while the ordinance might not be facially invalid, it impermissibly infringed on the constitutional liberty interests of the transsexual defendants. Id. at 525.

Courts have applied the unenumerated privacy and autonomy rights guaranteed under the Constitution to other instances involving transsexuals. See, e.g., Darnell v. Lloyd, 395 F. Supp. 1210, 1214 (D. Conn. 1975) (holding that post-operative male-to-female transsexual's inability to obtain birth certificate congruent with her present sex impermissibly impinged upon her fundamental interests in marriage or privacy); Diaz v. Oakland Tribune, Inc., 188 Cal. Rptr. 762 (Cal. Ct. App. 1983) (holding that in libel suit, newspaper violated transsexual plaintiff's fundamental right to privacy by publishing fact of her prior sex change).

55. 116 S. Ct. 1620 (1996).

56. Id. at 1623.

57. According to the Court, Amendment 2 reads:

No Protected Status based on Homosexual, Lesbian or Bisexual Orientation. Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination. This section of the Constitution shall be in all respects self-executing.

Id. at 1623.

58. Id. at 1624.

59. Id. at 1628. Amendment 2 amended a state constitution, and as such, had a broader and more fundamental impact than a statutory provision would have. After examining the amendment's uniqueness and the broad exclusion from the political process it imposed, the Court proceeded to analyze it as it would any other statutory provision. Id. at 1624-29.

60. Id. at 1627.

61. Id. at 1629.

62. 92 F.3d 446 (7th Cir. 1996).

63. Id. at 449.

64. Id. The court affirmed in part and reversed in part.

65. Id. at 457.

66. Id. at 458.

67. Id. The court also held that Nabozny had stated an equal protection claim based on gender. The facts supporting that claim, however, are dissimilar to the facts under consideration here and, consequently, are omitted from this discussion. Id. at 460.

68. 742 F.2d 1081 (7th Cir. 1984).

69. Id. at 1086.

70. Ulane v. Eastern Airlines, 581 F. Supp. 821, 822 (N.D. Ill. 1984).

71. Id.

72. Id. at 839. Karen Ulane had been a pilot for Eastern Airlines. With her company's foreknowledge, she underwent SRS during an extended personal leave. She was discharged from Eastern upon her return to work as Karen.

73. Ulane v. Eastern Airlines, 742 F.2d 1081, 1085 (7th Cir. 1984)

74. Id.

75. Id.

76. See infra notes 95-109 and accompanying text for a discussion of the breadth of the term "sex" in Title VII.

77. The Diagnostic and Statistical Manual IV, characterizes Gender Identity Disorder, the psychiatric diagnosis underlying transsexualism and transgenderism, as:

[A] strong and persistent cross-gender identification, which is the desire to be, or the insistence that one is, of the other sex ... [n]ot merely a desire for any perceived cultural advantages of being the other sex. There must also be evidence of persistent discomfort about one's assigned sex or a sense of inappropriateness in the gender role of that sex ... [excluding] a concurrent physical intersex condition...[and] clinically significant distress or impairment in social, occupational, or other important areas of functioning.

American Psychiatric Ass'n ("APA"), American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders 532-33 (4th ed. 1994).

78. See, e.g., J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 157 n.1 (1994) (Scalia, J., dissenting) (noting Court's interchangeable use of the terms "sex" and "gender"); Price Waterhouse v. Hopkins, 490 U.S. 228, 240- 41 (1989) (discussing Court's use of terms "sex" and "gender" to describe similar characteristic); DeSantis v. Pacific Tel. & Tel. Co., 608 F.2d 327, 329 (9th Cir. 1979) (same).

79. 941 F. Supp. 730 (N.D. Ill. 1996).

80. Id. at 734.

81. Hopkins, 490 U.S. at 240.

82. Holloway v. Arthur Anderson, Co., 566 F.2d 659, 662 (9th Cir. 1977). Incredibly, the court relied on only part of the definition of "sex" as given in Webster's Seventh Collegiate Dictionary, while it disregarded that part of Webster's definition which would have given Holloway a cause of action: "Sex is defined as '1: either of two divisions of organisms distinguished respectively as male or female, 2: the sum of the structural, functional, and behavioral peculiarities of living beings that subserve reproduction by two interacting parents and distinguish males and females ...." Id. at 662 n.4 (emphasis added). The behavioral component of sex which distinguishes individuals as male or female was completely disregarded in Holloway's definition of sex.

83. Justice Scalia has stated that "[t]he word 'gender' has acquired the new and useful connotation of cultural or attitudinal characteristics (as opposed to physical characteristics) distinctive to the sexes. That is to say, gender is to sex as feminine is to female and masculine to male." J.E.B., 511 U.S. at 157 n.1 (Scalia, J., dissenting).

The Holloway court also considered Webster's definition of "gender:" "Gender is defined as 1: SEX, 2a: any of two or more subclasses within a grammatical class of language ...." Holloway, 566 F.2d at 662 n.4. Not surprisingly, the court chose to disregard the obvious connection between sex and gender drawn by the dictionary.

84. 2 All E.R. 33 (P. 1970) (Eng.).

85. Id. at 50.

86. See In re Ladrach, 513 N.E.2d 828, 832 (Stark Co. Prob. Ct. 1987) (holding that male-to-female transsexual was still considered male under Ohio law).

87. See M.T. v. J.T., 355 A.2d 204, 208-09 (N.J. Super. Ct. 1976) (holding that male-to-female transsexual considered female under New Jersey law for the purposes of marriage).

88. Compare Richards v. United States Tennis Ass'n, 400 N.Y.S.2d 267 (N.Y. Sup. Ct. 1977) (decided Aug. 16, 1977; concluding that somatic primary and secondary physical characteristics sufficient to establish plaintiff as female) with Anonymous v. Mellon, 398 N.Y.S.2d 99, 102-03 (N.Y. Sup. Ct. 1977) (decided Aug. 23, 1977; recognizing that "sexual gender" is not merely matter of anatomy, but finding rational Department of Vital Statistics' argument that refusing to put either male or female designation on transsexuals' amended birth certificates protected public against fraud).

89. "A person's sex becomes fixed by operation of a court order, not by virtue of an ambiguous natural order." Katherine M. Franke, The Central Mistake of Sex Discrimination Law: The Disaggregation of Sex from Gender, 144 U. Pa. L. Rev. 1, 52 (1995). Such an observation runs counter to the quip often heard in transgender circles, "you change your sex in the operating room, not the court room."

90. The subtle differences in secondary sexual characteristics that exist between men and women have been summed up as follows:

We tend to think of sexual differentiation in terms of the major organs, those of reproduction and intercourse, taking for granted the familiar secondary characteristics that, except in intimate contacts, actually spell "male" or "female." Aside from the breasts...there exist innumerable subtleties of gender that must be mastered or at least worked over by the transsexual who is struggling to change the portrait in the mirror.

The familiar ABC of secondary sexual appearance [includes:] Facial Hair: female--normally absent, eyebrows fine-haired; male--present, eyebrows rough- haired.

Body Hair: female--fine and/or sparse on legs and arms, triangular ending in a V in pubic region, present in armpits; male--noticeably present on legs and arms, often on hands, continuing towards navel, in pubic region, generally present on torso, present in armpits.

Fat Distribution: female--over-all fat layer generally greater, fat layers on breasts conspicuous often without correlation to plumpness of rest of body; male--over-all fat layer generally minimal, prominent fat layer on breasts only when fat is also conspicuous on rest of body.

Scalp Hair: female--thinning gradually with age, remaining even in distribution; male-pattern baldness, sometimes appearing in youth with bald spots or "high foreheads."

Voice: female--vocal cords short, larynx small, tone generally high; male-- vocal cords longer than female, larynx often prominent (the Adam's apple), tone generally low.

Skeletal Shape: female--wider pelvis and consequently more acutely angled thigh bone, forearm set at angle to elbow; male--narrower pelvis, thigh bones minimally angled from pelvis, forearms not angled.

Musculature: female--straplike; male--tending to bunch into rounded nodes.

M.J. Lukas, Let Me Die a Woman: The Why and How of Sex-Change Operations 51-53 (1978).

91. See, e.g., Underwood v. Archer Management Servs., 857 F. Supp. 96, 98 (D.D.C. 1994) (noting that employer discriminated against plaintiff on basis of "personal appearance," in that she "retained some masculine traits").

Franke makes the point that these traits--i.e., hand and foot size, Adam's apple, cheek bones, and facial hair--are more accurately characterized as "male" characteristics, rather than "masculine" characteristics. Franke, supra, note 89, at 34-35. This distinction is consistent with Scalia's J.E.D. dissent, in that the characteristics themselves are biological traits, rather than psychosocial constructs. See Case, supra note 53, at 10-11 (noting Justice Scalia's distinction between "male" and "masculine").

92. See generally 50 Am. Jur. 2d Lewdness, Indecency, and Obscenity § 17 (1995) (discussing elements of "indecent exposure"); Michael J. Yaworsky, Annotation, Indecent Exposure: What is "Person", 63 A.L.R. 4th 1040, 1046- 49 (1988) (commenting on exposure of genitalia as violation of indecent exposure statutes).

93. See supra note 90 for a discussion of sex-specific secondary characteristics.

94. "Sex-typical behavior" refers to that behavior an individual exhibits that is socially indicative of his or her sex. Such behaviors include his or her mode of dress, way of speaking, and mannerisms.

95. 435 U.S. 702 (1978).

96. Id. at 705.

97. Id. at 717.

98. Id. at 707.

99. 444 F.2d 1194 (7th Cir. 1971).

100. Id. at 1198.

101. Id. at 1198 n.4. This particular piece of Title VII's legislative history is also noted in Price Waterhouse v. Hopkins, 490 U.S. 228, 241 n.7 (1989).

102. 490 U.S. 228 (1989) (plurality opinion).

103. Id. at 233-34.

104. Id. at 235.

105. Id.

106. Id. at 250-251.

107. Id. at 256. Note that Justice Brennan did not use the word "gender" in this particular passage. It would seem that he considers the two terms to be identical, or at least interchangeable, in contrast to Justice Scalia's contention that the two terms represent different concepts. See supra note 83 for a discussion of Justice Scalia's proposition.

108. Id.

109. Id. at 251.

110. Ulane v. Eastern Airlines, 581 F. Supp. 821, 822 (N.D. Ill. 1984), rev'd, 742 F.2d 1081 (7th Cir. 1994).

111. This current reality runs counter to the view adopted by the courts twenty years ago. "[W]ith respect to gender, a person was either male or female, and no three ways about it." Anonymous v. Mellon, 398 N.Y.S.2d 99, 100 (N.Y. Sup. Ct. 1977).

112. In re Anonymous, 314 N.Y.S.2d 668, 669 (N.Y. Civ. Ct. 1970). The European Court of Justice also rejected the notion that transsexuals constitute a third sex, finding as a matter of principle that the directive prohibiting sex discrimination would recognize transsexuals' right to a sexual identity. See Case C-13/94, P. v. S. & Cornwall County Council, 2 C.M.L.R. 247 (1996).

113. Some states have legislation that permits a post-operative transsexual to change the legal sex designation on her birth certificate. See, e.g., Cal. Health & Safety Code § 103425 (West 1996); Haw. Rev. Stat. Ann., tit. 19, § 338-17.7(a)(4)(B) (1996); Iowa Code Ann. § 144.23(3) (West 1989); La. Rev. Stat. Ann. 40:62 (West 1992); Utah Code Ann. § 26-2-11 (1989); Wis. Stat. Ann. § 69.15(1) (West 1990). Other states permit changes to a transsexual's birth certificate by regulation. See, e.g., Ill. Admin. Code tit. 77, § 500.40(a)(1)(C); Minn. R. 4600.3700(4); Va. Regs. Reg. 5- 550-320. By contrast, Tennessee expressly forbids the modification of a transsexual's birth certificate to reflect his or her new sex after undergoing transsexual surgery. Tenn. Code Ann. § 68-3-203(d) (1992). Additionally, Ohio has forbidden the change of a transsexual's birth certificate by common law. In re Ladrach, 513 N.E.2d 828, 832 (Prob. Ct. Stark Co. Ohio 1987). Other state courts have refused to compel administrative agencies to change birth certificates absent clear legislative directive. Anonymous v. Mellon, 398 N.Y.S.2d 99 (N.Y. Sup. Ct. 1977); K. v. Health Div., Dep't of Human Resources, 560 P.2d 1070, 1072 (Or. 1977). The remainder of states seem to accommodate the needs of transsexuals on an informal, ad hoc basis.

114. Gold v. DiCarlo, 235 F. Supp. 817, 819-20 (S.D.N.Y. 1964).

115. "Even if the statutory language were less clear, the basic policy of the statute requires that we focus on fairness to individuals rather than fairness to classes." City of Los Angeles, Dep't of Water & Power v. Manhart, 435 U.S. 702, 709 (1978).

116. Ulane v. Eastern Airlines, 742 F.2d 1081, 1085 (7th Cir. 1984).

117. Manhart, 435 U.S. at 709.

118. Holloway v. Arthur Andersen & Co., 566 F.2d 659, 664 (9th Cir. 1977) (Goodwin, J., dissenting).

119. While the courts have established the doctrine of extending Title VII protections to women who exhibit "masculine" traits, there has been a marked resistance to extending the same protections to men who exhibit "feminine" traits. See Davis v. Sheraton Society Hill Hotel, 907 F. Supp. 896, 902 (E.D. Pa. 1995) (holding that evidence that coworkers questioned plaintiff's "sexual identity," i.e., male femininity, may not be used to establish reverse sex discrimination). In light of the doctrine set forth in Price Waterhouse, this reluctance seems to be a throw-back to the Holloway view that equates homosexuality with cross-gender behavior and is not protected under Title VII. For a more thorough discussion of this judicial phenomenon, see supra notes 22-40 and accompanying text; Case, supra note 53, at 49-57.

120. Manhart, 435 U.S. at 711 (citing Sprogis v. United Air Lines Inc., 444 F.2d 1194, 1205 (7th Cir. 1971) (Stevens, J., dissenting)).

121. See supra notes 95-109 and accompanying text for a discussion of "sex" as defined in Title VII.

122. Marbury v. Madison, 5 U.S. 137, 163 (1803).

123. Id. at 177.

124. Id. at 179-80.

125. Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 348 (1936) (Brandeis, J., concurring).

126. Id.

127. 335 U.S. 106 (1948).

128. Id. at 121 n.20 (quoting Knights Templars' & Masons' Life Indemnity Co. v. Jarman, 187 U.S. 197, 205 (1902)).

129. Id. at 120-21.

130. Given the fact that when Title VII was being debated on the House and Senate floors the "transsexual phenomenon" was barely a decade old and had made its presence felt no further than the tabloids, it is extremely unlikely any of the legislators considered Title VII in light of its effect on transgendered persons. Judge Goodwin, writing in dissent, agreed with the Holloway majority "that Congress probably never contemplated that Title VII would apply to transsexuals." Holloway v. Arthur Andersen & Co., 566 F.2d 659, 664 (9th Cir. 1977) (Goodwin, J., dissenting).

As early as 1979, commentators noted Congress's minimal knowledge of transsexuals. "Congressional unfamiliarity with transsexualism and the group's negligible political power has been recently demonstrated by legislative attempts to amend Title VII to include 'sexual preference or orientation,' but not transsexualism." Stuart A. Wein & Cynthia Lark Remmers, Employment Protection and Gender Dysphoria: Legal Definitions of Unequal Treatment on the Basis of Sex and Disability, 30 Hastings L.J. 1075, 1106 n.191 (1979).

Awareness breeds contempt, however. Both the ADA and the Rehabilitation Act contain amendments which provide that the definition of handicap shall not include, "transvestism, transsexualism,...[or] gender identity disorders not resulting from physical impairments." 42 U.S.C. § 12211(b)(1) (1995); 29 U.S.C. § 706(8)(F)(i) (Supp. 1996). It has also been suggested that transgendered persons were, through the machinations of the Human Rights Campaign Fund (a gay and lesbian rights lobbying group), specifically excluded from the language of the Employment Non-Discrimination Act ("ENDA"), H.R. 1863 IH, 104th Cong. (1995), a civil rights bill intended to protect gays and lesbians from employment discrimination. See generally Phyllis R. Frye, Employment Non-Discrimination Act of 1995 Is a Bad Bill: It Intentionally Omits One-Quarter of the Lesbian, Gay, Bisexual and Transgender Community, The ICTLEP Reporter (International Conference on Transgender Law and Employment Policy, Inc., Houston, Tex.), Aug./Oct. 1995, at 1, 6 (commenting on lack of transgender inclusion in draft of proposed Employment Non-Discrimination Act). Prospects for transgender inclusion in future introductions of ENDA seem similarly dim. See Reports 97-1 though 97-6 from Dana Preising, GenderPAC lobbyist, to e-mail recipients (Jan. 15, 1997 to Feb. 13, 1997) (on file with Temple Law Review) (describing reactions of congressional leaders to GenderPAC lobbying efforts).

131. See supra notes 122-29 and accompanying text for a discussion of Supreme Court precedents requiring courts to interpret statutes so as to avoid constitutional challenges.

132. Holloway, 566 F.2d at 663. It was this aspect of the Holloway decision the Tenth Circuit recently suggested should be reevaluated:

The Ninth Circuit has held that transsexuals are not a protected class.... In Holloway, the court reasoned that transsexuality did not meet the traditional indicia of a suspect classification because transsexuals are not a discrete and insular minority, and because the plaintiff did not establish that "'transsexuality is an immutable characteristic determined solely by the accident of birth' like race, or national origin."

Recent research concluding that sexual identity may be biological suggests reevaluating Holloway.

Brown v. Zavaras, 63 F.3d 967, 971 (10th Cir. 1995) (citations omitted). Note, though, that the Brown court also perpetuates the common mistake of equating transgenderism with homosexual orientation. See Case, supra note 53, at 49-57, for a discussion on the legal aggregation of the concepts of gender and sexual orientation in transgendered persons.

This author acknowledges the theory that transgenderism may be biologically based. Scientific evidence that links transgenderism with brain structure is mounting. See Curt Suplee, Possible Transsexual Brain Trait Found. Study Finds Part of Hypothalamus Is Smaller Than in "Ordinary" Men, Wash. Post, Nov. 2, 1995, at A3, available in 1995 WL 9270198 (reporting results of Amsterdam study). Should a definitive physical basis for transgenderism be determined, a "suspect classification" argument asserting civil protection would become more tenable. The plight of the transgendered employee, however, cannot await the glacial pace of scientific discovery.

133. Holloway, 566 F.2d at 663-64. Interestingly, the court substituted its own wording "between males and females" for the term "sex" in the statute.

134. Id. at 664.

135. Id.

136. Id.

137. Romer v. Evans, 116 S. Ct. 1620, 1627 (1996).

138. "Trans-exclusive Congressional debate" refers to debate regarding the exclusion of transgendered persons from legislative considerations.

139. See infra notes 189-204 and accompanying text for a discussion of such debate.

140. 116 S. Ct. 1620 (1996).

141. For the text of Amendment 2, see supra note 57.

142. Evans v. Romer, 854 P.2d 1270, 1285 (Colo. 1993).

143. Id. at 1282.

144. Id. at 1286.

145. Romer, 116 S. Ct. at 1624.

146. Id. at 1627.

147. Id. at 1629.

148. Id. at 1627.

149. Id. at 1628.

150. Id.

151. Id. (citing Department of Agric. v. Moreno, 413 U.S. 528, 534 (1973)).

152. Id. at 1628-29.

153. 92 F.3d 446, 458 (7th Cir. 1996).

154. 42 U.S.C. § 1983 (1994). Section 1983 provides a civil remedy against a person, acting with state authority, who deprives another of her constitutional rights, privileges, or immunities.

155. Nabozny, 92 F.3d at 454-57.

156. Id. at 453 (citations omitted). "The gravamen of equal protection lies not in the fact of deprivation of a right but in the invidious classification of persons aggrieved by the state's action." Id. (citations omitted).

157. Id. at 457.

158. Id. The court, however, also noted the Sixth Circuit's contrary position on this issue, i.e, that "[b]ecause homosexuals are not identifiable 'on sight'...they cannot constitute a suspect class or a quasi-suspect class." Id. at 457 n.10. The Nabozny court questioned the Sixth Circuit's apparent assertion that an individual must belong to a suspect or semi-suspect class to trigger equal protection. "The Sixth Circuit's analysis appears to conflate the requirement that discrimination be based on membership in a definable class to trigger equal protection analysiswith the requirement that the class have 'obvious, immutable, or distinguishing characteristics' to trigger heightened or strict scrutiny." Id. (citation omitted).

159. Id. at 458.

160. Id. at 460. The circuit court's Nabozny decision was a review of the district court's order granting summary judgment to the defendants.

161. See International Bhd. of Teamsters v. United States, 431 U.S. 324, 381 (1977) (Marshall, J., concurring & dissenting) (noting remedial nature of Title VII); Veprinsky v. Fluor Daniel, Inc., 87 F.3d 881, 888 (7th Cir. 1996) (same).

162. Mahroom v. Hook, 563 F.2d 1369, 1375 (9th Cir. 1977).

163. See Babrocky v. Jewel Food Co., 773 F.2d 857, 863 (7th Cir. 1985) ("[W]hen interpreting the statute, courts should avoid technical constructions.").

164. Veprinsky, 87 F.3d at 888 ("[W]hen the meaning of a provision is made clear by the words of the statute, we need not scrounge about the legislative history looking for an alternate meaning.").

165. 742 F.2d 1081 (7th Cir. 1984). For a brief summary of Ulane, see supra notes 68-75 and accompanying text.

166. Although Holloway used the same basic argument as Ulane, the latter gives a much more complete analysis of its reasoning.

167. Ulane, 742 F.2d at 1084.

168. This sort of "scroung[ing] about" was recently rejected by the Seventh Circuit in Veprinsky, where the court found that the meaning of a provision was made clear by the words of the statute. Veprinsky, 87 F.3d at 888.

169. Ulane, 742 F.2d at 1085-86.

170. Id. at 1085-86. See supra note 130 for a discussion of Congress's lack of awareness of the transsexual population.

171. Id. at 1086.

172. Id. at 1085.

173. Id. at 1084-85 (emphasis added).

174. The court's use of the term "sexual identity disorder" seems analogous to the APA term "gender identity disorder." See supra note 77 and accompanying text for a discussion of the APA definition of "gender identity disorder."

175. Ulane, 742 F.2d at 1084. "Sex is not a cut-and-dried matter of chromosomes." Id. See supra note 68-70 and accompanying text for a discussion of the district judge's definition of "sex" under Title VII.

176. See supra notes 102-11 and accompanying text for a discussion of the Price Waterhouse definition of sex.

177. See, e.g., Ulane, 742 F.2d at 1084 (citing Holloway as supporting of its reasoning). See also supra notes 22, 42, for a discussion on subsequent courts' treatment of the Holloway precedent.

178. Holloway was decided in 1977, Manhart was decided in 1978, and Price Waterhouse in 1989.

179. This analysis only sets forth the elements needed to prevail under an equal protection rational relation level of scrutiny. Although additional arguments can be made for suspect or quasi-suspect classification of transgendered persons, such arguments are beyond the scope of this Comment.

180. Holloway v. Arthur Andersen & Co., 566 F.2d 659, 663 (9th Cir. 1977) (citation omitted).

181. Id.

182. Nabozny v. Podlesny, 92 F.3d 446, 457 n.10 (7th Cir. 1996).

183. See supra section II.C.1, and note 54, for a discussion of the lack of suspect classification for transgendered persons and the courts' application of the minimal standard of review.

184. Nabozny, 92 F.3d at 457.

185. See infra section II.C.1.c for a discussion of the rationale for transgender exclusion from the ADA. See supra note 10 for the transgender classification under the ADA and the Rehabilitation Act.

186. See supra note 10 for a discussion of state statutes that specifically exclude transgendered persons from coverage.

187. See Ordinance 95-3697 (1995), Iowa City, Iowa (defining "gender identity" as "a person's various individual attributes, actual or perceived, in behavior, practice or appearance, as they are understood to be masculine and/or feminine," and outlawing discrimination on the basis of gender identity); Ordinance 433-94 (1994), San Francisco, Cal. (defining "gender identity" as "a person's various individual attributes as they are understood to be masculine and/or feminine," and outlawing discrimination on basis of gender identity); Seattle Fair Employment Practices Seattle, Wash., Ordinance 112903 § 2 (1986) (includes transsexuality and transvestism under definition of sexual orientation, and outlaws discrimination on the basis of sexual orientation); Pittsburgh, Pa. Code of Ordinances tit. 6, § 651.04(hh) (defining "sex" as "gender of person, as perceived, presumed or assumed by others, including those who are changing or have changed their gender identification").

188. See supra note 130 and accompanying text for a discussion of Congress's failure to consider transgendered persons when debating Title VII.

189. 135 Cong. Rec. S20,571-76 (1989).

190. Id. at S20,572.

191. 656 F. Supp. 713 (D.D.C. 1986), opinion vacated but judg. aff'd, 830 F.2d 1183 (D.C. Cir. 1987).

192. 37 Fair Empl. Prac. Cas. (BNA) 1867 (D.D.C. 1985).

193. 135 Cong. Rec. at S20,574.

194. Id.

195. See supra note 6 for a discussion on the prevalence of transgenderism in the general population.

196. See Wein & Remmers, supra note 130, at 1107-08 (discussing unlikelihood that "floodgates" of litigation would be opened by so few transsexuals in United States).

197. Testimony of Karen Ann Kerin, 1994 WL 392888, July 27, 1994; Testimony of Phyllis Randolph Frye, 1994 WL 392889, July 29, 1994.

198. 141 Cong. Rec. S10,964 (daily ed. July 31, 1995). The Hutchinson amendment number 2033 was attached as an amendment to a separate amendment sponsored by Senator Dole, number 2025.

199. Id.

200. Id. at S10,965.

201. Id. at S10,964.

202. Id.

203. 141 Cong. Rec. S11,050 (daily ed. Aug. 1, 1995).

204. 141 Cong. Rec. S18,617 (daily ed. Dec. 14, 1995).

205. See Blackwell v. United States Dep't of Treasury, 43 Fair Empl. Prac. Cas. 1804, 1805 (D.D.C. 1986) (declaring that transvestites are handicapped class for Rehabilitation Act purposes); Doe v. United States Postal Serv., 37 Fair Empl. Prac. Cas. 1867, 1869 (D.D.C. 1985) (holding that transsexuals may state claim of handicap discrimination under Rehabilitation Act).

206. Romer v. Evans, 116 S. Ct. 1620, 1627 (1996).

207. Id. at 1628.

208. This argument finds its best expression in City of Chicago v. Wilson, 389 N.E.2d 522 (Ill. 1978). For the facts in the case, see supra note 54. In holding the Chicago anti-crossdressing ordinance unconstitutional, the Illinois Supreme Court stated,

[T]he city has not articulated the manner in which the ordinance is designed to protect the public morals. It is presumably believed that cross-dressing in public is offensive to the general public's aesthetic preference. There is no evidence, however, that cross-dressing, when done as a part of a preoperative therapy program or otherwise, is, in and of itself, harmful to society. In this case, the aesthetic preference of society must be balanced against the individual's well-being.

Id. at 525 (emphasis added).

209. 42 U.S.C. § 2000e-2(a) (1994).

210. See supra notes 161-64 and accompanying text for a discussion of the remedial nature of Title VII and principles of statutory construction.

211. Sommers v. Budget Marketing, 667 F.2d 748, 750 (8th Cir. 1982); Holloway v. Arthur Andersen & Co., 566 F.2d 659, 662 (9th Cir. 1977) (citing Baker v. California Land Title Co., 507 F.2d 895, 896 n.2 (9th Cir. 1974); Rosenfeld v. Southern Pac. Co., 444 F.2d 1219, 1225 (9th Cir. 1971).

212. EEOC v. Superior Temporary Servs., Inc., 56 F.3d 441, 446 (2d Cir. 1995).

213. The examples for this hypothetical discussion are given for the male-to- female transgendered persons.

214. There are variations of these reasons. The most common is the "dress code violation," wherein the transgendered employee is disciplined or terminated because she wears clothing inappropriate to her "real" (anatomical) sex. Another variant involves the "bathroom" issue. The transgendered employee is accused of sowing discontent in the workplace because some of her coworkers refuse to use the same restroom as she, under the mistaken belief that she does not "really" belong there. See generally Northwest Pa. Training Partnership Consortium, Inc. v. Unemployment Compensation Bd. of Review, No. 2297, C.D. 1993, slip op. at 2-3 (Pa. Commw. Mar. 29, 1994) (recounting reasons employer gave for discharging employee); Holt v. Northwest Pa. Training Partnership Consortium, Inc., 4-6 (unpublished slip opinion, Job Training Partnership Act State Level Review, Pa. Dep't Labor & Industry, Mar. 15, 1994) (on file with Temple Law Review) (outlining employer's dress and bathroom prohibitions enforced against employee).

215. See supra section II.A for a discussion of Title VII and the prohibition against sex-stereotypical behavior prohibited under the Act.

216. See generally Wood v. C.G. Studios, 660 F. Supp. 176, 177-78 (E.D. Pa. 1987) (applying Title VII, court would not construe "sex" as used in Pennsylvania Human Relations Act, to reach post-operative transgendered plaintiff who had undergone surgery before beginning employment with defendant employer).

217. Ulane v. Eastern Airlines, 742 F.2d 1081, 1086-87 (7th Cir. 1984).

218. Id. at 1082.

219. Id. at 1087.

220. Id. There were no changes in Ulane's FAA qualifications as a pilot during the period of her transition from male to female. The only difference between the time of her hire and her termination was the fact that she had become female. "But for" the reason that she was now female, she would have retained her position; hence, the basis of part of her discrimination complaint. See Ulane v. Eastern Airlines, Inc., 581 F. Supp. 821, 837 (N.D. Ill. 1983), rev'd, 742 F.2d 1081 (7th Cir. 1984).

221. Ulane, 742 F.2d at 1087.

222. Id.

223. Id. at 1087 n.13.

224. "[I]f a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end." Romer v. Evans, 116 S. Ct. 1620, 1627 (1996). Because "sex" is the issue being debated, it might seem that a heightened scrutiny level of review accommodating a quasi-suspect classification may be more appropriate. However, it is not the classification by sex that is being challenged, but the classification by means of one's past sex that is at issue.

225. EEOC v. Joslyn Mfg. & Supply Co., 706 F.2d 1469, 1475 (citing Legislation to Prohibit Sex Discrimination on the Basis of Pregnancy: Hearing on H.R. 5055 and H.R. 6075 Before the Subcommittee on Employment Opportunities of the Committee on Education and Labor, 95th Cong., 1st Sess. 172 (1977) (statement of Drew Days, Attorney General for Civil Rights, Department of Justice)), vacated, 724 F.2d 52 (7th Cir. 1983).

226. EEOC v. Superior Temp. Servs., Inc., 56 F.3d 441, 446 (2d Cir. 1995).

227. There are examples of statutes which have conferred special benefits upon classes defined by durational requirements. See generally Hooper v. Bernalillo County Assessor, 472 U.S. 612, 614 (1985). Such statutes have generally been declared unconstitutional. Id. at 622-23.

228. Holloway v. Anderson, 566 F.2d 659, 663-64 (1977).

229. Marbury v. Madison, 5 U.S. 137, 179 (1803).

230. Id. at 177.

231. Romer v. Evans, 116 S. Ct. 1620, 1627 (1996).

232. Case C-13/94, P. v. S. & Cornwall County Council, 2 C.M.L.R. 247, 263 (1996).


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