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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.

Wednesday, June 14, 2006

Law: When is dismissal based on "sex reassignment"?

Earlier in the week, I blogged about how some contemporary courts are re-imagining the issue of whether transgender employees are covered by Title VII, specifically addressing the question of whether "sex reassignment" implicates "sex" discrimination.

As noted earlier, in the first federal lawsuit on the subject, Grossman v. Bernards Township, decided in 1975, Judge Barlow ruled that "sex reassignment" does not implicate "sex." Legalistically (sic), however, that was not sufficient to exclude Paula Grossman from Title VII protection. In order to dismiss the case before trial, the judge needed proof that the employer's action was, in fact, based on "sex reassignment," and not "sex." If Grossman's termination could be seen as based on her "sex," rather than her "sex reassignment," then the school's case wasn't open-and-shut and Judge Barlow would have had to schedule a full trial. Anyone who knows the court system knows that the name of the game, from the judge's point of view, is to clear cases off the overburdened docket as soon as possible.

The employer itself made this rather difficult for Judge Barlow. It was arguing ("vigorously", according to Judge Barlow) that the main issue was Paula Grossman's sex. It was arguing this because it saw this as the silver bullet that would put the case to an end, for it was then an accepted legal principle that Title VII only covered discrimination against women, and not men. But if Judge Barlow had focused on this complex issue of sexual identity, then he would have had to admit that the employer's dismissal was based on Paula Grossman's sex, and he would have had to endure a time-consuming jury trial filled with confusing psychiatric testimony. It was necessary to somehow sidestep the school's position on sexual identity.

In a master stroke of genius, the judge conceded that Paula Grossman was a "woman" (for purposes of this decision only -- you can do that in the law). At the same time, he ruled that the discrimination directed against her was not based on being a woman, and thus not covered by Title VII. The judge reasoned that the school fired her after her sex reassignment, and Paula Grossman complained about being fired after her sex reassignment, therefore, the lawsuit must be about dismissal based on sex reassignment. He was then able to dismiss the case without a trial.

In a present-day federal court, Judge Barlow's arguments would not pass muster. First, it is no longer the law that "sex discrimination" means discrimination only against females. The sex of the victim does not matter. In addition, it is no longer the law that the plaintiff must prove that the employer has hostility against all females on a single basis, a Herculean task. Rather, the contemporary plaintiff need only show that the employer's hostility was based on his or her failure to adhere to stereotypes associated with his or her sex. In Paula Grossman's case, 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 clearly based on a stereotype of proper behavior for males. Some federal courts have ruled that such concerns, based as they are on "sex stereotypes," fall within Title VII "sex discrimination," regardless of whether the plaintiff is considered "transgender" or not. Others have not, making it necessary, sooner or later, for the Supreme Court to step in and resolve the conflict between the different regions of the country.

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