I am busy writing a full length article, which is what good professors are supposed to do with their summers off, with a working title of "The Supreme Court and Transgender Coverage of Title VII." My thesis is that the Supreme Court will be faced with this issue in the next few years, and that it will likely rule that transgender employees are covered by Title VII. This has led me to do some historical research into the issue, which brings me to today's issue. The first reported judicial opinion on the subject is Grossman v. Bernards Township Board of Education, No. 74-1904 (D.N.J. September 10, 1975). The decision was never reported in the official law reports, probably because it was deemed not to be of general precedential value, which in English means it seemed like a subject that was unlikely to come up much. Thirty years later, the subject is back with a vengeance.
Paula Grossman, a music teacher working with 4th, 5th and 6th graders, was dismissed after sex reassignment surgery. The school district cited potential psychological harm to students as its reason. Ms. Grossman sued the school district in federal court. The judge, looking at Title VII's prohibition of employment discrimination "because of sex," came up with three arguments that have surprisingly stood the test of time. Although Ms. Grossman was obviously discharged because of her new "sex," the judge ruled that she was not fired "because of sex" and found that Title VII afforded no protection. Rather, he reasoned that there is a distinction between one's "sex" and a "change in sex," removing the school district's action from the reach of Title VII. Interestingly, the judge specifically noted that Title VII would have protected her if the school district fired her because of any "stereotypical notions of sex." However, the school board's concern about the formerly male employee's adoption of a female name, use of female attire and use of female hormones to alter her bodily characteristics was not, the judge said, based on a stereotype of proper behavior for males. The judge also noted that the failure of Congress to provide any guidance as to its intent regarding transgender employees was a signal that the term "sex" was to be restricted to its "plain meaning."
This case is more than an interesting historical footnote. The three arguments raised are the main legal arguments used today in defending against Title VII cases by transgender employees. On Monday, I will assess the viability of these three defenses based on the intervening thirty years of legal history.
