When it comes to sexual harassment law, probably one of the knowledgeable and insightful writers I’ve seen on the subject Joanna Grossman of FindLaw Writ. I’m not an attorney, but FindLaw Writ is one of my favorite news websites, and Ms. Grossman is one of my favorite writers at the site.
In her (longwindedly headlined) column Recent Firings Serve as a Reminder of the Employment Struggles Unjustly and Sometimes Illegally Faced by Transsexuals, she writes about the recent discriminatory workplace actions against Julie Nemecek and Steve Stanton in particular, and about employment discrimination transsexuals face in general.
And, of course she brings up Price Waterhouse v. Hopkins, informing us as to why discrimination against transsexuals likely goes directly against this Supreme Court prescience.
Transsexuals have generally been unsuccessful in establishing rights under federal anti-discrimination laws. Most courts have held that neither transsexuals, nor gays and lesbians, comprise a protected class under Title VII. Efforts to enact federal legislation to protect against both these forms of discrimination have been undertaken, but thus far have been unsuccessful.
Fourteen states have adopted statutes banning sexual orientation discrimination, but only four of those statutes explicitly extend to discrimination on the basis of transsexualism. Many cities, however, protect transsexuals against discrimination through local ordinances.
I believe some of her numbers are a little off — the numbers have improved in the last few years to nine states currently that have civil rights protections based on gender identity, and seventeen states have civil rights protections based on sexual orientation. Although frankly, if one looks on the web one can still find the older numbers she references in greater frequency than the current numbers.
Nemecek has a better prognosis for her discrimination suit, and seems to be aware of that fact: Unlike Stanton, she has filed a complaint with the EEOC, an act that is the required precursor to filing a lawsuit. Her situation is legally more complicated than Stanton’s, but more likely to work out in her favor.
Nemecek is fortunate that, unlike Stanton, she can invoke the 2004 ruling from the U.S. Court of Appeals for the Sixth Circuit (in whose jurisdiction the state of Michigan falls) in Smith v. City of Salem. In that case, a transsexual firefighter argued that he had suffered adverse employment actions and retaliation because of a gender identity disorder that led him to “express a more feminine appearance on a full-time basis,” including at work. Contrary to rulings from several other federal appellate courts, the Sixth Court ruled that the plaintiff was indeed discriminated against on the basis of his sex, as Title VII requires, when he suffered discrimination on the basis of his transsexualism.
In what way does firing a transsexual employee constitute sex discrimination? The roots of the theory lie in Price Waterhouse v. Hopkins, the decision in which the Supreme Court ruled that sex-stereotyping in the workplace is actionable under Title VII. In that case, a very successful woman employee at Price-Waterhouse was turned down for partnership at least in part because she wasn’t “feminine” enough. Despite her superb rainmaking abilities, partners at the firm charged with evaluating her criticized her for being “too macho” and advised her to wear more jewelry and go to charm school.
That sort of gender policing, the Court ruled, violates Title VII. A woman should not have to “act like a woman” (particularly a stereotypical one) in order to keep her job if she’s otherwise good at it. In a quote that’s often repeated, the majority observed that: “[W]e are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associate with their group.”
This was a watershed case in sex discrimination law and, yet, it has been underutilized as a precedent in the 18 years since it was decided.
Granted, this precedent has enabled some gay male employees to successfully challenge harassment or other forms of discrimination even though Title VII has been held not to protect against sexual orientation discrimination. Thanks to Price-Waterhouse v. Hopkins, if an effeminate gay male is singled out for adverse treatment, whether by the employer or by co-workers who harass him, he can allege illegal sex-stereotyping. In Nichols v. Azteca Restaurant Enterprises, Inc., for example, the U.S. Court of Appeals for the Ninth Circuit concluded that harassment of a gay, male employee reflecting hostility toward him because he was too “feminine” constituted illegal sex-stereotyping. (I considered this legal theory further in an earlier column).
But that theory is of no use for gays and lesbians who do conform to gender expectations. The simple fact that they may choose a same-sex partner has not been treated as “gender” nonconformity with the meaning of Price-Waterhouse, even though stereotypes still hold that they should choose an opposite-sex partner instead.
One might predict that the limited protection for gays and lesbians under Title VII bodes poorly for transsexuals, an even more ostracized gender minority. However, the premise of Price-Waterhouse – that employers cannot punish employees for gender non-conformity – is actually a better fit for discrimination on the basis of transsexualism, than for discrimination on the basis of sexual orientation. After all, gender non-conformity is the essential trait of transsexualism, while many gays and lesbians do not exhibit it.
The Sixth Circuit in Smith relied on this reasoning to hold that the transsexual firefighter was protected by Title VII. Discriminating against a male who assumes a female identity is a form of gender policing as well, it concluded: According to stereotype, a “real” man wouldn’t “switch” genders away from the one assigned to him at birth, and so a man who does so is singled out for maltreatment.
Joanna Grossman concludes:
In sum, while there may be some recourse for those within the range of the Sixth Circuit’s jurisdiction, the overwhelmingly majority of transsexual employees still face hard times in the current legal regime.
Thus, though an obvious target for bigotry and discrimination, transsexuals have little or no protection against it. Price-Waterhouse provides a way out of this regime, and a mandatory one at that. No court should be able to justify refusing to protect employees against transsexual discrimination, since the very essence of it is precisely the kind of gender policing that Price Waterhouse stressed was a noxious form of gender discrimination.
It’s employment, housing, and public accommodation discrimination that propels me into transgender activism– the kind of discrimination that Ms. Grossman commented on in her article. Transpeople have to do legwork to fight discrimination to fight anti-transgender discrimination.Â
Frankly, I believe people like me — and my transgender peers — should be part of the solution to anti-transgender employment, housing, and public accommodation discrimination.   We can’t all sit back and wait for someone else to do the work — if everyone waited for someone else to do the work, nothing would get done.
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Further reading:
Dr. Jillian Weiss is writing some insightful legal commentary in her blog Transgender Workplace Equality. She has several informative pieces up on both the Steve Stanton and Julie Nemecek firings. One of her most recent pieces on Steve Stanton’s firing is Update on Law Covering Steve Stanton – Dr. Weiss in this piece goes over some Florida State case law she’s recently researched out, and how this may impact the Stanton case.
Woo-hoo! Litigation!! 
