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This is not legal advice, which can only be given by an attorney admitted to practice law in your jurisdiction after hearing all of the facts and circumstances in a particular case.

Tuesday, April 11, 2006

Issue: More Title VII Twists

Today's link is from the blog of Professor Arthur Leonard, of New York Law School, who discusses Diane Schroer's lawsuit against the Library of Congress, discussed here in a previous post.

Professor Leonard reviewed the judge's opinion, which reveals something surprising. The judge calls this a "sexual identity" case, which refers to the issue of whether one is male or female. The court said that it intends to take medical testimony on the issue of Shroer's biological "sexual identity," including chromosomal, gonadal, hormonal, and neurological factors, as well as social, psychological, and legal conceptions of gender.

This is surprising because it does not follow the landmark 2004 decision in Smith v. City of Salem, which used a "sexual stereotyping" theory to hand a win to a transgender employee. "Sexual stereotyping" is a contrasting legal theory that refers to the issue of whether one acts masculine or feminine.

Male/female -- masculine/feminine: the differences between these might seem, to the uninitiated, to be similar to questions about how many angels can dance on the head of a pin. However, appeals courts have always thrown male/female "sexual identity" cases out of court since the first one was brought in the 1970s (here's a famous one, if you want to see an example), whereas the masculine/feminine "sexual stereotyping" cases (like Smith v. City of Salem) have recently had increasing success.

The tension between these various understandings can cause conceptual confusion for well-intentioned but uninformed HR and diversity managers. The failure of the "sexual identity" theory has long angered transsexual advocates, who feel that the courts have ignored the scientific validity of the surgical cure for the conflict between their anatomy and their opposite-sex neuro-psych identity as male or female. Surgery is the sine qua non here, and distinguishes real transsexuals from cross-dressing "transgenderists." On the other hand, many transgender advocates were never comfortable with the "sexual identity" theory, and were happy to see it disappear. It's their contention that "gender identity" policies are important to protecting a broad range of employees from sexism, sexual harassment and homophobia in the workplace, including women who are macho go-getters and men who aren't.

Adding "gender identity" to the company's EEO statement has different implications, depending on who you talk to. Does it affect the application of sex-differentiated policies to all employees, like dress codes, identification records and bathroom policies? Is its effect limited to those employees who have sex reassignment surgery?

The "sexual identity" theory used by the court in the Schroer case may lead to a split between courts that view transgender discrimination as a matter of sexual identity, and those that view it as a matter of gender stereotyping. It should also be noted that the term "sexual identity" is an older term not in favor among many transgender advocates because it alludes to an anatomical/biological view of identity. The preferred term used by the those now driving the transgender law movement is "gender identity," which implies that psychological gender has no relation to anatomical sex.

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