In my last law blog, I discussed the cases that have followed Judge O'Malley's 2001 ruling in Doe v. United Consumer Financial Services, holding that transgender employees are protected by case law that forbids "sex stereotyping" by employers.
In one of these cases, Schroer v. Billington, which I think is going to be quite influential, Judge James Robertson, of the federal district court for the District of Columbia, ruled that transgender employees dismissed because they transition on the job (or express an intention to) are not protected by a lawsuit for "sex stereotyping," but are nonetheless covered by Title VII. In so doing, he ruled that Judge O'Malley's legal theory was all wet, agreeing with the courts in Utah and Louisiana that refused to protect such employees. But he does not explain what he means, and he probably cannot do so in any principled way.
It's confusing. He says that transgender employees are not protected by "sex stereotyping" lawsuits if they have a "sexual identity" issue. At the same time, he says that transgender employees are protected by "sex stereotyping" lawsuits if they are an effeminate man or a macho woman, but not if they are a man wearing a dress and makeup.
Judge Robertson's opinion harks back to Judge Grady's 1983 lower court ruling in Ulane. In that opinion, Judge Grady said that Title VII includes transsexuals, but not transvestites, because the former have a "sexual identity" issue, whereas as the latter do not. This reasoning has been abandoned to the legal graveyard since the 7th Circuit reversed Judge Grady on appeal in 1984.
Personally, I have a sense it ought to remain in the legal graveyard. This rule is too open to manipulation because of the ambiguity of the terms involved. No one knows where "sexual identity" ends and "gender identity" begins. No one can authoritatively distinguish between "transgender," "transsexual," "transvestite," "crossdresser," and "genderqueer." It is difficult to nail down whether "transition" means with sex reassignment surgery or without. Judge Robertson's rule willy-nilly includes and excludes various transgender employees.
In a Judge Roberston world, it is more difficult to figure out who's covered and who's not. His ruling says that Title VII covers someone with a "sexual identity" issue. Does that mean the person must have (or intend to have) sex reassignment surgery? (It seems that it means yes.) Does it protect someone who transitions without intending to undergo such surgery? (It seems that it means no.) But which of the many types of surgery in aid of sexual reassignment does it refer to? What defines a person's "intention" in such a regard? If I intend to have it next year or 20 years from now, does that count?
At the same time, Judge Robertson explicitly contradicts himself when he states that transgender employees are protected from firing based on sex stereotyping if they are effeminate males or macho females (and, I suppose, their employer is dumb enough to make or allow open comments about that). Thus, an effeminate male-to-female transsexual or transvestite is protected, as is a stereotype-grinding genderqueer, or a masculine female-to-male transsexual or transvestite. But a masculine male-to-female transsexual or transvestite, or a feminine female-to-male transsexual or transvestite is not covered.
Confused yet? I am. Anyway, must run. I'm at the annual Law and Society Association conference and registration starts in 45 minutes.
