Law: What is Title VII "sex"?

On Friday, I blogged about the first Title VII transgender lawsuit. This case is more than an interesting historical footnote. Judge Barlow's three arguments are the main legal arguments used today in defending against Title VII cases by transgender employees:

1. "Sex change" does not implicate Title VII "sex"
2. Title VII only covers discrimination against women as females, and discrimination against transgender persons does not occur on this basis.
3. Title VII "sex" has a narrow meaning

The case most often discussed in reference to this issue, Ulane v. Eastern Airlines, Inc., 742 F.2d 1081 (7th Cir.1984) decided almost ten years later, reiterates slight variations of Judge Barlow's arguments, as do all other judicial opinions denying transgender persons protection under Title VII, including the most recent one, Etsitty v. Utah Transit Authority, 2005 WL 1505610 (D.Utah Jun 24, 2005).

However, there are now a growing number of federal courts that have ruled that Judge Barlow's arguments no longer hold sway. Why have they done so? Let's take the first argument, that
sex change does not implicate Title VII "sex."

When Judge Barlow wrote his opinion, it was generally accepted by the scientific community that, with regard to sex, anatomy is destiny. Sex "reassignment" could not affect this psycho-biological imperative. In addition, it was generally accepted in the US legal community that Title VII, like the 14th Amendment, protected only "immutable" characteristics, such as race, that Title VII only protected women, and not men, and that change in sex would remain unprotected because it is not an immutable characteristic. Therefore, whether or not "sex reassignment" made Paula Grossman a "woman" (and the judge kindly conceded that she was a "woman" for purposes of his decision), discrimination against her did not, in fact, implicate the "sex" referred to in Title VII.

Now, however, it is generally accepted in the scientific community that anatomy is not destiny, and that sex is different from "gender," which is the psycho-social characteristics of the socially constructed sexes. In addition, it is generally accepted in US legal circles that Title VII can, in fact, protect mutable characteristics, such as religion, that it also protects men from discrimination, and that it prohibits discrimination on the basis of stereotypes about sex. Therefore, dismissal on the basis of sex reassignment does implicate Title VII "sex."

Whew, I am exhausted after just the first argument! I will save the latter two arguments for later in the week.