A Wave of Discrimination: The Ebb and Flow of Transgender Civil Rights

 

A Wave of Discrimination: The Ebb and Flow of Transgender Civil Rights

1975 – The Tempestuous Wave of Transgender Discrimination

High levels of discrimination against transgender people have been noted throughout United States history. 1)(see, eg, Green, 1994; It’s Time Illinois, 2000). In the 1975 case of Voyles v. Ralph K. Davies Medical Center,2)403 F Supp 456 (1975). the District Court of California considered the meaning of sex under Title VII. Here, the Court was guided by an interpretation of its legislative history, took the view that sex discrimination was not intended to ‘embrace “transsexualdiscrimination or any permutation or combination thereof. In excluding transgender from the ambit of sex, the court constructed the phrase “sex discrimination” relationally between opposite sexes grounded in (bio)logic.

 

Dyad /ˈdīad/ something that consists of two elements or parts.The effect of the court’s reasoning is, as noted by Cindy Pearlman 3) (1995, p 862), to position transgender outside of sex irrespective of whether a litigant characterizes her/his status as inside or outside the male/female dyad.

 

For instance, male-to-female transgender claims of discrimination on the basis of femaleness are overlayed with transgender status as the basis for the discrimination while claims of discrimination on transgender grounds simply fall outside sex, constructed as it is around a (bio)logical understanding of maleness/femaleness. In Holloway v. Arthur Anderson, the United States Court of Appeals 9th Circuit took the view that ‘Title VII does not prohibit the discharge of an employee for initiating the process of sex transformation’4)566 F 2d pg. 659 (1977), pg. 659., claiming that ‘Congress had only the traditional notions of “sex” in mind’.5)Ibid. pg. 662; Ulane v. Eastern Airlines, 742 F 2d 1081 (1984), pg. 1085, the United States Court of Appeals 7th Circuit insisted that Title VII referred to ‘a traditional concept of sex’16 while in Dobre v. National Railroad Passenger Corporation (AMTRAK), 850 F Supp 284 (1993), pg. 285, the District Court of Pennsylvania defined the term to refer to ‘an individual’s distinguishing biological or anatomical characteristics and held transsexualism is neither a physical or mental impairment nor a perceived handicap.

1985 – Legislative Exclusion

Ten years after Voyles, the United States Appeals Court 8th Circuit heard the case Sommers v. Budget Marketing6)667 F 2d 748 (1982).. Audra Sommers’ maintained that she had been discriminated against “because of her status as a female.”7)Ibid., pg. 749, although a transwoman. Successive courts have inferred an intention on the part of Congress to exclude transgender from successful legislative resistance to attempts ‘to amend Title VII to prohibit discrimination based upon “affectational or sexual orientation”’. 8)Transgender Jurisprudence by Andrew Sharpe, Chapter 7: The ‘Limits’ of Anti-Discrimination Law Sex at pg. 141. The point is put explicitly by the Ulane court: “… [w]hile the proposed amendments were directed toward homosexuals, their rejection strongly indicates that the phrase in the Civil Rights Act prohibiting discrimination on the basis of sex should be given a narrow, traditional interpretation, which would also exclude transsexuals.” 9) Ibid., ¶¶ 1085–86.  

The view that sex excludes transgender was considered to be supported by the fact that Congress has continued to reject gay and lesbian law reform “even after courts have specifically held that Title VII does not protect transsexuals from discrimination”.10) Ibid., ¶ 1086. Courts have interpreted Title VII sex to capture discrimination where the perpetrator believes the victim to be of the opposite (bio)logical sex. For instance, in Ulane the court contended that “if Eastern Airlines considered Ulane to be female and had discriminated against her because she was female … then the argument might be made that Title VII applied”.

1993 – Maintaining a Cisgender Claim

The above-mentioned was clarified in Dobre, where the court stated that ‘if AMTRAK considered Dobre to be female and discriminated against her on that basis (that is, treated her less favorably than male employees), then Dobre would be able to maintain a Title VII action as a female’. 11)Dobre v. National Passenger Corporation, 850 F Supp 284 (1993), ¶ 287.

 

 

“The Right of Freedom and Dignity” vs. “The Equal Misery”?

 

At the time of the founding Treaty, the existence of sexual minorities was hardly conceivable. The Equal Treatment Directive,12) A. Cambell & H. Lardy, Discrimination Against Transsexuals in Employment, 21 EUR. L. REV. 413 (1996). in introducing the principle of equality, refers to the principle of equal treatment for men and women, but was not intended to take into consideration discrimination on ground of sex related to transsexual or homosexual issues.13) See Tridimas , supra note 14, at 69.

 

The trend of judicial insistence on sex as biology has left female-to-male individuals as the only similarly situated comparators for the transwoman for the purposes of evaluating a sex discrimination claim, but this strategy would collapse in the face of an ‘equal misery’ analysis.

2017 – Trumpism Era: Transgender Rights Under Attack

In 2017, US Attorney General Jeff Sessions sent a memo to US Attorneys stating that Title VII‘s prohibition on sex discrimination does not extend to discrimination based on gender identity. Although the 2nd U.S. Circuit Court of Appeals overruled prior decisions and said that a worker’s sex is necessarily a factor in discrimination based on sexual orientation in the 2018 case of Zarda v. Altitude Express, Inc., 14)15‐3775 (en banc) Zarda v. Altitude Express, Inc. The company has faced similar lawsuits have argued that when Congress adopted Title VII more than 50 years ago, it did not consider whether the law’s ban on sex bias included discrimination based on sexual orientation. the decision fails to put employers on notice and cite why it is necessary for LGBT, as well as transgender employees, to have these Title VII protections in the workplace during the Trumpian era. As a result, transgender employees will remain at the mercy of discriminatory workplace practices due to the ebb and flow of vaguely written jurisprudence.

 

References   [ + ]

1. (see, eg, Green, 1994; It’s Time Illinois, 2000).
2. 403 F Supp 456 (1975).
3. (1995, p 862)
4. 566 F 2d pg. 659 (1977), pg. 659.
5. Ibid. pg. 662; Ulane v. Eastern Airlines, 742 F 2d 1081 (1984), pg. 1085, the United States Court of Appeals 7th Circuit insisted that Title VII referred to ‘a traditional concept of sex’16 while in Dobre v. National Railroad Passenger Corporation (AMTRAK), 850 F Supp 284 (1993), pg. 285, the District Court of Pennsylvania defined the term to refer to ‘an individual’s distinguishing biological or anatomical characteristics and held transsexualism is neither a physical or mental impairment nor a perceived handicap.
6. 667 F 2d 748 (1982).
7. Ibid., pg. 749, although a transwoman.
8. Transgender Jurisprudence by Andrew Sharpe, Chapter 7: The ‘Limits’ of Anti-Discrimination Law Sex at pg. 141.
9. Ibid., ¶¶ 1085–86.
10. Ibid., ¶ 1086.
11. Dobre v. National Passenger Corporation, 850 F Supp 284 (1993), ¶ 287.
12. A. Cambell & H. Lardy, Discrimination Against Transsexuals in Employment, 21 EUR. L. REV. 413 (1996).
13. See Tridimas , supra note 14, at 69.
14. 15‐3775 (en banc) Zarda v. Altitude Express, Inc. The company has faced similar lawsuits have argued that when Congress adopted Title VII more than 50 years ago, it did not consider whether the law’s ban on sex bias included discrimination based on sexual orientation.

About Quianna Canada

Quianna Canada is an anti-police brutality activist, author, and opinion writer living in the United States.
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