The first crack in this uniform line of cases against transgender employees was Ulane v. Eastern Airlines in 1983. In that case, Judge John F. Grady, of the federal district court for the Northern District of Illinois, after a full trial, ruled that Title VII covered transgender employees.
His opinion is remarkable because, instead of relying simply on assumptions about sex, as the former cases had, it utilized scientific evidence to understand sex. This is not entirely surprising, for it was the first Title VII transgender judicial opinion case to come after review of legal evidence. All the previous opinions were in response to motions to dismiss prior to trial.
Judge Grady's opinion tore apart Judge Williams' argument that legislative attempts to amend Title VII to cover "sexual affection and preference" demonstrated Congressional understanding that it did not cover transsexuals. He did so by distinguishing such legislative efforts from the "sexual identity" issues of transsexuals, noting that "It seems to me an altogether different question as to whether the matter of sexual identity is comprehended by the word, 'sex.'"
Prior to my participation in this case, I would have had no doubt that the question of sex was a very straightforward matter of whether you are male or female. That there could be any doubt about that question had simply never occurred to me. I had never been exposed to the arguments or to the problem. After listening to the evidence in this case, it is clear to me that there is no settled definition in the medical community as to what we mean by sex.Unlike Judge Barlow, to whom "sex" could only mean male or female, Judge Grady learned a more nuanced understanding of the term "sex" from the expert witnesses.
The plaintiff's expert witnesses said that sexual identity is in part a psychological question. "That is to say, it is a question of one's own self-perception: How does one perceive oneself in terms of maleness or femaleness? It is also a social matter: How does society perceive the individual?" Thus, Judge Grady noted, as do many academicians studying the matter, that "sex" is not only a reference to a physical fact, but also to a psychological fact and a social fact.
He rejected Judge Barlow's argument about Congressional intent in limiting the meaning of the word "sex" to its narrowest meaning, stating that "Congress never intended anything one way or the other on the question of whether the term, 'sex,' would include transsexuals." Based on the scientific evidence, he found that the term "sex" literally applies to transsexuals. He used an analogy to the word "race" in Title VII to bolster his argument. He noted that "race", although it literally applies to genetically inherited characteristics, had properly been held to include discrimination based on Hispanic ethnic identity. He also noted that sex is not a cut-and-dried matter of chromosomes because some states permit the issuance of an amended birth certificate, and specifically found that Ulane's post-operative legal status was that of a female.
Judge Grady's opinion was very well informed. Sadly, it was doomed. The following year, the 7th Circuit Court of Appeals reversed Judge Grady, using the same arguments as Judge Barlow. His opinion went into the dustbin of history. In fact, the name "Ulane" is now practically synonomous with the idea that transgender plaintiffs are unprotected by Title VII. This slammed the door shut for transgender plaintiffs for the next twenty years. One court went so far as to state that the daily use of derogatory names at work, such as "fag," "punk bitch," "whore bitch," and "freak mother fucker," could not support a discrimination claim because they were "related" to the employee's transsexual identity. (Cox v. Denny's, Inc., 1999 WL 1317785, M.D.Fla.)
Since 2001, a number of judicial opinions have found that Title VII covers transgender plaintiffs, but they have been based on entirely different reasoning from Judge Grady's 1983 Ulane lower court opinion. I will discuss those next week. Most legal experts thought Judge Grady's arguments entirely dead. Surprisingly, Judge Grady's opinion has recently been revived and pointed to admiringly in the 2006 case of Shroer v. Billington, from the federal district court for the District of Columbia.
Judge Grady's opinion is not without difficulties. After all, he had only the benefit of a few days' testimony from experts, and scientific knowledge about transgender issues has increased since then. In particular, he uses the terms "transsexual" and "transvestite" as if these terms were settled. He confidently proclaimed that "transsexuals" are protected and "transvestites" are not. He incorrectly stated that the "transsexual" has an issue of "sexual identity," whereas the "transvestite" does not, based on the substantial disagreement between the parties about whether Ulane was a transsexual or transvestite. In fact, arguments about whether the label "transsexual" or "transvestite" applies to an individual are meaningless. The relevant question, in today's terms, is whether the individual has a "gender identity" issue. The discussion of what that means is too long to engage in here. Suffice it to say that the issue is going to come up in the Schroer case, and we will take up that discussion at that time.