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« Sexual orientation Discrimination #32

Transsexual discrimination #33
by Ross Runkel at LawMemo

The law on discrimination against transsexuals is changing.

A transsexual is a person whose gender identity does not match the sex that was assigned at birth. Some transsexuals get medical treatment (surgery or hormones or both) in order to bring their body into alignment with their gender identity.

Title VII:

Title VII forbids discrimination "because of sex," and one legal question is whether this forbids discrimination because a person is a transsexual.

The bulk of the courts to address this issue hold that Title VII does not forbid discrimination because of transsexuality because that's not discrimination "because of sex."

A recently-developed theory discussed in some cases is that transsexuals are victims of "sexual stereotyping" as discussed in Price Waterhouse v. Hopkins, 490 US 228 (1989). The difficulty with this theory is that a person who came into life identified as female and is now male often acts in a typical male fashion, so there really is no "sexual stereotyping" involved.

A third theory is that transsexuals simply are being discriminated against "because of sex." This theory is new, not well developed, and has not been used by many courts. One example is Schroer v. Billington (D DC 03/31/2006).

I've suggested a fourth theory: I reason by analogy to religion discrimination. If an individual changes from being a Mormon to being a Baptist, and that's the reason the person gets fired (or not hired), then I think that would be a clear-cut case of discrimination "because of religion." If someone changes from being a man to being a woman, and that's the reason the person gets fired (or not hired), then that should constitute discrimination "because of sex." I don't know of any courts that have adopted this idea, and I can't figure out why.

The Americans with Disabilities Act (ADA):

The ADA, which protects against discrimination because an individual's disability, specifically excludes protection from discrimination on the basis of being a transsexual, or having a gender identity disorder or sexual behavior disorder.

State laws:

The laws of some states and some local governments do provide protection against transsexual discrimination.

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