Federal policy improvements for trans people (day 3 of 5)

Day 3 of recent policy changes that improve the lives of trans and LGBQ individuals.

The Supreme Court found in the 1989 case Price Waterhouse v. Hopkins that “Title VII’s reference to ‘sex’ encompasses both the biological differences between men and women, and gender discrimination, [] discrimination based on a failure to conform to stereotypical gender norms.”[xvi]  Case law arising under Title VII and other nondiscrimination statutes has by now firmly established that adverse action taken against transgender people due to their perceived failure to conform to gender stereotypes is a form of discrimination “on the basis of sex.”[xvii]  In addition, the United States District Court of the District of Columbia held in 2008 that discrimination based on sex includes discrimination based on gender identity.[xviii] The court found that an employer who revoked a job offer because of the applicant’s transgender status “violated Title VII’s prohibition on sex discrimination.”[xix]

Subsequent cases illustrate that it would be sound and reasonable for OVC interpret sex discrimination prohibitions as prohibiting discrimination based on sexual orientation.  In several cases that have been brought by LGB plaintiffs on a gender stereotyping theory, courts have recognized the inseparability of discrimination based on gender stereotyping and discrimination based on sexual orientation.  The difficulty in distinguishing one type of discrimination from the other arises because “[s]tereotypical notions about how men and women should behave will often necessarily blur into ideas about heterosexuality and homosexuality.” [xx]

Indeed, evidence presented by plaintiffs in such cases often looks the same because “gender-loaded language can easily be used to refer to perceived sexual orientation and vice versa.” [xxi]  The overlap has been problematic for courts, which have reached inconsistent decisions in these cases.  For example, a judge of the District Court for the District of Massachusetts denied summary judgment to the defendant in a case where the harassment was obviously related to the plaintiff’s sexual orientation—the plaintiff’s co-workers “placed a sign stating, ‘Heterosexual replacement on Duty’ at his [work space,]…taped pictured of Richard Simmons in ‘pink hot pants’ to [his work space, and]…asked [him] if he would be marching in a gay parade and asked him if he had gotten AIDS yet.” [xxii]


[xvi] Glenn v. Brumby, 724 F. Supp. 2d 1284, 1299 (N.D. Ga. 2010) aff’d, 663 F.3d 1312 (11th Cir. 2011) (summarizing the Supreme Court’s finding in Price Waterhouse v. Hopkins).

[xvii] See, e.g., Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005) (Title VII); Smith v. City of Salem; 378 F.3d 566 (6th Cir. 2004) (same); Rosa v. Park W. Bank & Trust Co., 214 F.3d 213 (1st Cir. 2000) (Equal Credit Opportunity Act); Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000) (Gender Motivated Violence Act); Schroer v. Billington, 577 F. Supp. 2d 293, 305-06 (D.D.C. 2008) (Title VII); Lopez v. River Oaks Imaging & Diag. Group, Inc., 542 F. Supp. 2d 653, 660 (S.D. Tex. 2008) (same); Mitchell v. Axcan Scandipharm, Inc., No. Civ. A. 05-243, 2006 WL 456173 (W.D. Pa. Feb. 17, 2006) (same); Tronetti v. TLC HealthNet Lakeshore Hosp., No. 03-CV-0375E(SC), 2003 WL 22757935 (W.D.N.Y. Sept. 26, 2003) (same); Doe v. United Consumer Fin. Servs., No. 1:01 CV 1112, 2001 WL 34350174 (N.D. Ohio Nov. 9, 2001) (same).

[xviii] Schroer v. Billington, 577 F. Supp. 2d 293, 308 (D.D.C. 2008) (“[T]he Library’s refusal to hire Schroer after being advised that she planned to change her anatomical sex by undergoing sex reassignment surgery was literally discrimination ‘because of … sex.’”) (original emphasis).

[xix] Id.

[xx] Howell v. N. Cent. College, 320 F. Supp. 2d 717, 723 (N.D. Ill. 2004).

[xxi] Henderson v. Labor Finders of Virginia, Inc., No. 3:12cv600, 2013 U.S. Dist. LEXIS 47753 (E.D. Va. Apr. 1, 2013).

[xxii] Centola v. Potter, 183 F. Supp. 2d 403, 407, 410 (D. Mass. 2002).