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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.

Monday, June 19, 2006

Law: Cases After Judge Barlow

I have previously blogged about the first-ever transgender employee case under the Civil Rights Act of 1964, Grossman v. Bernards Township, and the three enduring arguments (count em, one, two, three) in the judicial opinion issued by District Judge Barlow. Judge Barlow's ruling was upheld summarily by the Federal Circuit Court of Appeals for the Third Circuit, and the U.S. Supreme Court denied certiorari (a fancy way of waving the ten-foot-pole).

Many cases have followed Judge Barlow's reasoning throughout the years, with only one additional argument surfacing. In a case one month after Grossman, Judge Spencer Williams, from the Federal District Court in California decided Voyles v. Ralph K. Davies Medical Center (403 F.Supp. 456 ) . He argued that there was no way that "sex" could include "sex reassignment," and that Congress had clearly showed its intent not to include "sex reassigment." Judge Williams divined this from the fact that because legislation had recently been proposed to add "sexual affection and preference" to Title VII (the employment section of the Civil Rights Act of 1964). If Congress understood Title VII to include "sex reassignment," reasoned Judge Williams, then no such legislation would be necessary.

Judge Williams argument is interesting, but the "sexual affection and preference" legislation of 1975 did not logically imply what he suggested. Rather, it was more likely a case of Congress reacting to court rulings excluding gay employees from Title VII. If anything, the legislation showed that some members of Congress disagreed with the narrowed interpretation imposed by conservative judges. A federal court had ruled in 1973, two years before the introduction of the legislation, that homosexuals were not covered under Title VII, in Smith v. Liberty Mut. Ins. Co. (1973 WL 11513). The legislation was likely prompted by Congressional concern about this recent judicial limitation of Title VII, refuting Judge Williams' assertion about the limitations of Title VII.

Another serious flaw in Judge Williams' argument is his conflation of "sexual affection and preference" with "sex reassignment." These are different categories of identity, and have little relationship. In fact, courts addressing the issue have ruled that statutes protecting gay employees do not protect transgender employees. (For an example, take a look at Underwood v. Archer Management Services, Inc., 857 F.Supp. 96, D.D.C.,1994.) Thus, legislation on the subject of "sexual affection and preference" can have no effect on Title VII's coverage of transgender employees.

For about ten years, all courts faced with the issues reiterated Judge Barlow's arguments. Later in the week, I'll discuss the first pro-transgender opinion.

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