Essay: Price Waterhouse – transgender employment issues

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  • Price Waterhouse - transgender employment issues
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The Supreme Court broadened the notion of discrimination “because of sex” under Title VII in Price Waterhouse v. Hopkins by holding that discrimination against women based on failure to conform to female stereotypes violated Title VII. After Price Waterhouse, a Circuit Split emerged. Representing one side of the Circuit Split, the First, Sixth, Ninth, and Eleventh Circuits have improperly used the limited holding in Price Waterhouse to bootstrap protection for transsexual orientation into Title VII . On the other side of the Circuit Split, the Seventh and Tenth Circuits have explicitly held that Title VII does not protect transgender employees from discrimination on the basis of their gender identity. The latter Circuits have properly applied the canons of statutory interpretation narrowly, interpreting the term “sex” to mean “anatomical sex.” These Circuits reasoned that Congress never intended Title VII to protect transgender status. Thus, broadening Title VII to cover gender identity would contradict the plain language of Title VII and be an “impermissible overreach” of the court’s adjudicatory role.
This is an issue of first impression in the 13th Circuit and this Court should shadow the stronger reasoning of the Seventh and Tenth Circuits and hold that transgender is not a protected class under Title VII. Therefore, there is no genuine issue of material fact as to whether Plaintiff is a member of a protected class under Title VII and Defendant First National Bank is entitled to judgment as a matter of law under Fed. R. Civ. P. 56(c).

A. This court should adopt the position of the 7th and 10th Circuits and hold that transgendered individuals are not a protected class under Title VII until further Congressional action is taken.

While the Thirteenth Circuit has not specifically ruled on a transgender case, the 7th and 10th Circuits have. In Ulane v. Eastern Airlines, a pilot decided he wanted to have a sex change and Eastern Airlines terminated his employment. The Seventh Circuit held that discrimination based on transgender status does not fall under Title VII protection. Ulane held the term “sex” should be given its “common and traditional interpretation” for purposes of interpreting Title VII. Id. at 1086. Therefore, it is only “unlawful to discriminate against women because they are women and men because they are men.” Id. at 1085. Since Mr. Ulane could only argue that he was discriminated against as a transgender individual, rather than as a biological man or a woman, the Ulane court held Title VII protection was not applicable. Id. at 1086-87.
In Etsitty v. Utah Transit Authority, the Tenth Circuit granted summary judgment in a in a case similar on all four corners to Employees claims. Mr. Etsitty brought a claim for transgender discrimination and prohibited sexual stereotyping. Mr. Etsitty was a bus driver for the Utah Transit Authority (“UTA”). Mr. Etsitty began to wear makeup, jewelry, taking hormones and planned a sex change after he saved enough money. He also started using the women’s restrooms along his bus route. Id. Consequently, UTA terminated Mr. Etsitty because of its legitimate concern about liability over his use of the woman’s restroom. The Etsitty court agreed and fell in line “with Ulane and the vast majority of federal courts to have addressed this issue and concluded discrimination against a transgender based on the person’s status as a transsexual is not discrimination because of sex under Title VII.” Etsitty at 1221.

After the Supreme Court interpreted Title VII in Price Waterhouse v. Hopkins, the 6th Circuit in Smith v. City of Salem argued that the reasoning of Ulane and its progeny, that “sex” meant only biological sex, is superseded by Price Waterhouse. However, Sweet v. Mulberry Lutheran Home, shows this is not the case:

“Long after Price Waterhouse was decided, courts have continued to hold that discrimination on the basis of sexual preference or orientation is not actionable under Title VII because it is not discrimination based on a person’s sex.” See also Creed v. Family Express Corp. (the net effect of Price Waterhouse is it appears that the holding in Ulane—that discrimination against transgenders because they are transgenders isn’t discrimination “because of … sex”—remains “controlling law.”).

Furthermore, the D.C Circuit in Schroer v. Billington held that transgender individuals are protected under Title VII on public policy grounds but conceded that Price WaterHouse does not apply to transgender individuals. Ms. Schroer applied for and was hired as a Terrorism Research Analyst while still appearing as a man. Upon informing her supervisor of her plan to transition sexes, her offer was rescinded. The D.C Circuit rejected the application of Price Waterhouse in Smith v. City of Salem, arguing, “protection against sex stereotyping is different, not in degree, but in kind, from protecting men, whether effeminate or not, who seek to present themselves as women.” The opinion stated, Ms. Schroer was seeking recognition not as a feminine man, but as a traditional woman. The court held that Price Waterhouse was not applicable because Ms. Schroer’s intent was not to “transgress stereotypes,” but to adopt an entirely new gender and conform to its stereotypes. Therefore, both sides of the Circuit Split offer support that Ulane and its progeny are still good law. Under the Ulane analysis, Plaintiff’s claim for sexual stereotyping discrimination under Title VII fails as a matter of law and should be dismissed.

1. The plain language and the legislative history of Title VII exemplify Congress’s intent to not include transgender as a protected class.

Prior to the 1990s, not a single court found transgender plaintiffs protected under Title VII or similar state laws . After Price Waterhouse, there was an increase of people publicly acknowledging sexual orientation or gender or sexual identity issues. However, the word “sex” in Title VII has never been interpreted to encompass transgender individuals. When interpreting a federal statute legislative history is a significant factor for a court to consider. In Train v. Colorado Public Interest Research Group, the Supreme Court went so far as to hold that interpreting a federal statute without looking at its legislative history was “reversible error.”

There is a lack of legislative history regarding the of “sex” as a prohibited class of employment discrimination in Title VII. House Report No. 914, 88th Cong., 2d Sess. (1964) states that Title VII was amended to include the category of “sex” without any prior legislative hearings or debate. Grossman v. Bernards Twp. Bd. of Educ.,.The amendment was proposed by Congressmen Smith of Virginia. Despite the lack of legislative history, Mr. Smith’s remarks exemplify Congress’s intent to not include transgender as a protected class under Title VII:
“Now, I am very serious about this amendment. […] I think it will do some good for the minority sex.” 110 Congressional Record (88th Congress, 2nd Session, 1964), 2,577. Further, Congressmen Gathings added, “The amendment of the gentleman from Virginia to protect the employment rights of all women should be agreed to.” In addition, Ulane went through an extensive analysis of Title VII’s legislative history and concluded that “had Congress intended more, surely the legislative history would have at least mentioned its intended broad coverage of […] transsexuals and would no doubt have sparked an interesting debate.”

The Congressional Record coupled with Ulane demonstrates that the word “sex” under Title VII was intended for the “minority sex” meaning that the intent of Congress in 1964 was to restrict the term “sex” to its plain biological meaning. This position is bolstered, discussed below, in Oiler v Winn-Dixie and by the Supreme Courts hesitancy to interpret Title VII without further congressional action.

In Oiler, the court granted summary judgment in an analogues case to the instant matter. Oiler, who was a transgender individual that cross-dressed when off duty, was fired from his job at Winn-Dixie. Id. at 3-14. Oiler claimed he was being discriminated against because he was transgender and because of prohibited sexual stereotyping under Price Waterhouse. Oiler completed an “extensive analysis” of analogous transgender cases, past jurisprudence and legislative history. Id. at 18-35. The court found that over thirty proposals to amend Title VII to include sexual orientation, sexual identity issues have been submitted in the Congress and none have passed. Id. at 22. Congress still has not passed any such proposal. The Oiler opinion’s extensive analysis of past jurisprudence and legislative history strongly supports the view that Title VII should not be expanded without further Congressional action. See also Holloway v. Arthur Anderson & Co., (the “clear intent” of Title VII was to remedy the “economic deprivation of women as a class” and that “Congress had only the traditional notions of ‘sex’ in mind.”)

Consistent with its holding on the importance of legislative history in Colorado Public Interest Research Group, above, the Supreme Court has shown its hesitancy in Title VII cases to go a direction without clear expression from Congress. See, e.g., Landrgaf v. USI Film Products, (finding no clear evidence of congressional intent that § 102 of the Civil Rights Act of 1991 should apply to cases arising before its enactment, the Court refused to extend § 102, remedy for Title VII violations, without further congressional action). This hesitancy to await Congressional action prior to further interpretation of Title VII is strongly supported by the Supreme Court’s consistency in denying Certiorari to transgender Title VII cases . Thus, Congresses reluctance to pass a proposal to include transgender individuals under Title VII and the Supreme Courts deference to Congressional action, reinforces the view that Title VII means nothing more than its plain meaning. This coupled with a reading of Etsitty, Ulane and analogous cases indicates attempts by Employee to use Price Waterhouse’s sexual stereotyping doctrine is plainly an attempt to fabricate a viable claim where one does not exist.

2. The Canons of Statutory Construction strongly favor the 10th Circuit’s holding that Title VII should be interpreted narrowly.

It may be conceded that a major shift in judicial philosophy from legislative intent to textualism has happened in the past 40 years . The Tenth Circuit in Etsitty acknowledged that the plain meaning of Title VII and “not the primary intent of Congress that guides our interpretation of Title VII”. The court expressed willingness to change its interpretation should “scientific research someday cause a shift in the plain meaning of the term ‘sex’.” Consequently, Etsitty reasoned that “sex” means now, as it meant in 1964, only the binary conception of male and female anatomy. Therefore, the court held that Title VII protection extends to transgender employees only if they are discriminated against because they are male or female.

The plain language of the word “sex” to mean “anatomical sex,” is supported by the Supreme Court decision in Frontiero v. Richardson, “sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth”. Moreover, the Supreme Court’s holding in Price Waterhouse consistently refers to “sex” as “woman.” No Supreme Court decision to date has ever extended the meaning of “sex” past its plain meaning. Case law makes evident that Supreme Court interprets the word “sex” by its plain meaning as man and woman. See also City of Los Angeles, Dep’t of Water & Power v. Manhart, ( [in forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes).
It may also be conceded that Title VII is a remedial statute. The rules of canons of statutory construction ordinarily interpret remedial statutes broadly. However, this doesn’t overcome the fact that the purpose of the canons of statutory construction is to give effect to legislative intent . In Perrin v. U. S., the Supreme Court held that “a fundamental canon of statutory construction is that unless otherwise defined words will be interpreted as taking their ordinary, contemporary, common meaning.” See e.g. Ulane (“even though Title VII is a remedial statute, our responsibility is to interpret [Title VII] and determine what Congress intended when it decided to outlaw discrimination based on sex.”) Therefore, this Court should follow the stronger plain meaning rule because a narrow interpterion gives effect to legislative intent, which is more consistent with the purpose of the canons of statutory construction.

It may be offered that with the passing of time legislative intent has shifted towards a broader interpretation of the word “sex” based on the passing of the Gender Motivated Violence Act (GMVA). Under this statute, a crime is motivated by gender if it is “committed because of gender or on the basis of gender, and due, at least in part, to an animus based on the victim’s gender.” § 13981(d)(1). In Schwenk v. Hartford, the court held that protection of the GMVA extends to transgender individuals. The Schwenk opinion has no bearing on Title VII cases, as argued below. Thus, the contention that legislative intent has changed fails on multiple grounds:

First, the GMVA is concerned only with gender; Title VII is restricted to “sex”. Though the Supreme Court seldomly interchanges the words gender and “sex,” the two are not synonymous. Chief Justice Rehnquist’s stand point in J.E.B. v. Alabama, joined by Justice Scalia and Thomas, bolsters this line of reasoning:

“throughout this opinion, I shall refer to the issue as sex discrimination rather than (as the Court does) gender discrimination. The word ‘gender’ has acquired the new and useful connotation of cultural or attitudinal characteristics (as opposed to physical characteristics) distinctive to the sexes. The present case does not involve peremptory strikes exercised on the basis of femininity or masculinity. The case involves, therefore, sex discrimination plain and simple.”

Chief Justice Rehnquist illustrates the Courts position the terms are distinguishable as a matter of law. Furthermore, Senate Report No. 138, 103RD Cong., which accompanied the GMVA, states that “this legislation is in no way intended to undermine existing civil rights protections under [..] title VII. [GMVA] should be read in harmony with, not in derogation of, [Title VII].” S. REP. 103-138, 53. Also, as previously expressed, Congress has had ample opportunities to further interpret the meaning of “sex” under Title VII, yet every proposal has failed. Accordingly, since the terms “sex” and gender are constrained to their respected statutes, attempts to use the GMVA to show legislative intent for Title VII is misguided.

This Court should adopt the 10th Circuit’s plain meaning approach for interpreting “sex” under Title VII because “sex” means now, as it meant in 1964, only one’s anatomical status as a natal male or female. Logically, “sex” cannot refer to discrimination based on transgender identity because transgender status is not sex; it is changing sex, a different concept altogether. Therefore, employment discrimination based on transgender identity is not discrimination “because of sex,” as meant by Title VII.
3. Further legislative authority from Title IX and the American Disability Act that transgender is not a protected class.

An analogous route taken by a federal court on the instant matter is found in Johnston v. University of Pittsburgh of Com. System of Higher Educ. Johnston, a transgender university student, was expelled because he refused to stop using male-designated locker room and bathroom facilities. The Court held that Johnston could not state Title IX discrimination claim against the university based on his transgender identity because Title IX’s prohibition on discrimination “on the basis of sex” only referred to the traditional binary conception of sex. The Court found no federal court case that had squarely decided this issue in the Title IX context. However, the Court reviewed the relevant Title VII cases and found: “nearly every federal court that has considered the question in the Title VII context has found that Title VII does not provide an avenue for a discrimination claim on the basis of transgender status.” Johnston’s congruent analysis of Title IX and Title VII cases bolsters the position that Title VII should not be expanded without further Congressional action. See also transgender bathroom cases, Johnson v. Fresh Mark, Inc., 337 F. Supp. 2d 996 (requiring a male transgender employee to use only men’s restrooms was not sex stereotyping under Title VII).

With regard to Congressional action, the American Disability Act specifically excluded transgender individuals from coverage. See 42 U.S.C. § 12211(b) (“Under this chapter, the term ‘disability’ shall not include […] transsexualism.”) Plainly, allowing “sex” discrimination claims under Title VII to protect employees in their fascination to dress and behave as the opposite sex is repugnant to the unmistakable intent of Congress. It is merely an attempt to improperly use Title VII to impose a “general civility code” in the workplace, which the Supreme Court has barred. Oncale v. Sundowner Offshore Services, 523 U.S. 75, 81 (1998). As the Supreme Court specified in Oncale, “[Title VII] does not reach genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex.” Id.

For these reasons, this Court should hold that Title VII does not protect transgender employees until further Congressional action.
B. Plaintiff’s claim fails as a matter of law because while Price Waterhouse extended Title VII’s prohibition of discrimination on the basis of sex to include “sexual stereotypes”, the phrase “sexual stereotypes” has not been interpreted to include transgender employees.
In an effort to overcome the fact that Congress did not include transgender as a protected class under Title VII, a transgender employee argued, based on Price Waterhouse, that he can nonetheless state a Title VII claim if he alleges that he as discriminated against because he failed to conform to stereotypes about how his biological sex “ought” to behave or appear. See, e.g., Smith v. City of Salem, 369 F.3d 912 (6th Cir. 2004).

In Price Waterhouse, Ms. Hopkins was denied partnership at an accounting firm because some hiring partners believed she was “macho” and did not conform to the employers notions of how women should act and appear in the workplace. Ms. Hopkins was told that she could increase her odds for partnership if she were to take “a course at charm school,” “walk more femininely, talk more femininely, dress more femininely, wear makeup, have her hair styled and wear jewelry.” Id. at 235. The Supreme Court held that such stereotypical comments were evidence of sexual discrimination because Title VII barred discrimination focused on stereotypical notions about how a woman “ought” to act in the office setting. The Court specified further that:
“An employer who objects to aggressiveness in women but whose positions require this trait places women in an intolerable and impermissible catch 22: out of a job if they behave aggressively and out of a job if they do not. Title VII lifts women out of this bind.” Id. at 251.

The holding of Price Waterhouse was limited to its facts. Nevertheless, a line of cases has emerged in which a Title VII cause of action can exist under the right set of facts when an employee is discriminated against for failure to conform with his or her sexual stereotype. See Lopez v. River Oaks Imaging & Diagnostic Group, Inc., 542 F. Supp. 2d 653, 660 (S.D. Tex. 2008) (while transgender discrimination did not violate Title VII, transgender man could still bring sex stereotyping claims under the Act if he failed to act sufficiently ‘masculine’ enough for an employer).

However, Price Waterhouse is distinguished by the current matter because the issue is not that Employee has some traits traditionally associated with women, or that Employee does not possess particular mannerisms affiliated with men. Instead, this is a matter of a person of one sex assuming the role of a person of the opposite sex, an issue not within the narrow scope of Price Waterhouse.
Responding to limited application of Price Waterhouse, the Tenth Circuit in Etsitty v. Utah Transit Authority, discussed above, granted summary judgment in a case similar on all four corners to Employee’s claims. Mr. Etsitty was using the women’s restrooms along his bus route. As a result, UTA fired Etsitty because of its concern about liability over his use of the women’s restroom on his bus routes.
Etsitty distinguished Price Waterhouse because Mr. Etsitty’s actions were not similar to the behavior of Ms. Hopkins in Price Waterhouse. Ms. Hopkins may not have acted as the hiring partners beleived a woman should have, but she never pretended to be a man or adopted a masculine persona. Such a drastic action cannot be fairly characterized as a mere failure to conform to “sexual stereotypes.” Specifically, the Etsitty court held that “there is a huge difference between a woman who does not behave as femininely as her employer thinks she should, and a man who is attempting to change his sex and appearance to be a woman.” See also Oiler (Price Waterhouse is distinguishable because the transgender plaintiff was not exhibiting stereotypical behavior, but rather was “pretend[ing] to be a woman.”). The Tenth Circuit held that while Title VII’s prohibition of discrimination “because of sex” includes “sexual stereotypes,” the phrase “sex” has not been interpreted to include transgender individuals. See also Dobre v. National R.R. Passenger Corp.,(if employee was discriminated against at all, it was because she was perceived as a male who wanted to become a female. Thus, transgender employee was not discriminated against as a female in violation of Title VII.)
Therefore, Price Waterhouse cannot be legitimately stretched so that “sexual stereotyping” encompasses discrimination based solely on transgender status because transgender identity is not sex; it is changing sex, a different concept altogether.
1. The Sixth Circuit erred by extending the Price Waterhouse stereotyping doctrine to bootstrap protection under Title VII for transgender individuals because doing so contravenes the unmistakable intent of Congress.
The Sixth Circuit in Smith v. City of Salem, Ohio, 378 F.3d 566, 574 (6th Cir. 2004) and Barnes v. City of Cincinnati, 401 F.3d 729, 737 (6th Cir. 2005), has acknowledged “it follows that employers who discriminate against men because they do wear dresses and make up, or otherwise act femininely, are also engaging in sex discrimination, because the discrimination would not occur but for the victim’s sex.” Smith, 378 F.3d at 574. A thorough examination of both the Smith and Barnes shows the error in the 6th Circuits reasoning:
First, the 6th Circuit foregrounds its reasoning on the unprecedent assumption that Price Waterhouse has overruled Ulane and its progeny, which the Court states gives Smith and Barnes a cause of action under Title VII. This assumption received backlash from the D.C circuit. In Schroer, as previously discussed, the D.C Circuit rejected the application of Price Waterhouse in Smith v. City of Salem, arguing, “protection against sex stereotyping is different, not in degree, but in kind, from protecting men, whether effeminate or not, who seek to present themselves as women, or women, whether masculine or not, who present themselves as men.” The court reasoned that Price Waterhouse did not apply because Schroer’s goal was not to transgress stereotypes, but to adopt an entirely new gender and conform to its stereotypes. Further, Price Waterhouse was limited to its facts. As a result, the 6th circuit simply uses the term-of-art created by Price Waterhouse, “sexual stereotyping”, as an end run around both Smith and Barnes’ transgender discrimination allegations. Which the sounds reasoning of Ulane and its progeny coupled with legislative intent have established are not sustainable claims because Title VII does not prohibit discrimination based on an individual’s transgender identity.
The 6th Circuit also heavily relies on the Equal Employment Opportunity Commission (EEOC) to offer some legitimacy, if any, to its reasoning. However, in a case similar on all four corners to Smith, the court in Hinton v. Virginia Union University held that Title VII did not protect against discrimination based on transgender orientation and could not be “supplanted by the merely persuasive power of the EEOC.” See also Tuma v. American Can Co., (the final determination of the EEOC is in no manner binding on this Court). The Sixth’s misguided reasoning is nothing more than attempting to boot strap a colorable claim under Price Waterhouse where one does not exist. It is likely the Sixth has extended Price Waterhouse beyond what either this Court or even what the current Supreme Court would do .

Therefore, in the current matter, Employee’s claim is distinguishable from Price Waterhouse because the current issue is not that Employee does not possess particular traits traditionally associated with women, but rather, that Employee is assuming the role of a person of the opposite sex. For these reasons, this Court should hold that Title VII does not protect transgender employees and summary judgment should be granted dismissing Employee’s Title VII claims.

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