Transgender and Title VII: Time to Change?

According to his complaint, Jimmie Smith was a lieutenant in the Salem Fire Department and had worked there for 7 years without incident. Smith, a male by birth, was diagnosed with Gender Identity Disorder (GID). After this diagnosis, Smith began to express a more feminine appearance on a full-time basis, including at work. This change in appearance was consistent with international medical protocols for treating GID.5

Not all of Smith's co-workers embraced his transition: They began questioning him about his appearance and commenting that his appearance and mannerisms were not “masculine enough.” Smith decided to tell his immediate supervisor, Thomas Eastek, about the GID diagnosis and treatment. He also told Eastek that it was likely his treatment for GID would eventually include a complete physical transformation from male to female. Eastek then told Fire Chief Walter Greenway about Smith's behavior and diagnosis.

Greenway was not thrilled with Smith's situation, and met with the City's Law Director “with the intention of using Smith's transsexualism and its manifestations as a basis for terminating his employment,” according to the complaint. At a meeting of the City's executive body in April 2001, a plan was hatched to get Smith to terminate his employment. It was agreed that the Salem Civil Service Commission would require Smith to undergo three separate psychological evaluations with physicians of the City's choosing. The hope was that Smith would either resign or refuse to comply. If he refused to comply, it was reasoned, the City could terminate Smith's employment on the ground of insubordination.

Two days later, Smith's lawyer called the City's lawyer to tell him that Smith was aware of the plan. Smith's lawyer promised legal action if the plan was executed. Four days after that, Fire Chief Greenway suspended Smith for one 24-hour shift, based on an alleged infraction of a City and/or Fire Department policy. Smith appealed the suspension and, after a hearing before the Salem Civil Service Commission, the suspension was upheld. Smith appealed the Commission's decision to state court, which reversed the suspension.

Smith then sued the City and various individual defendants in federal court, alleging sex discrimination and retaliation in violation of Title VII, violation of 42 U.S.C. ' 1983, and state law claims of invasion of privacy and civil conspiracy. The District Court dismissed the federal claims and declined to exercise supplemental jurisdiction over the state law claims. Smith appealed.

The Appeal

On appeal, The Sixth Circuit noted that the only real dispute before it was whether Smith properly alleged a claim of sex stereotyping under Price Waterhouse v. Hopkins, and whether Smith alleged that he suffered an adverse employment action. Smith alleged that he suffered discrimination and retaliation “because of … sex” in violation of Title VII. The district court had dismissed the Title VII claims on the ground that Smith had merely “invoked” the term-of-art created by Price Waterhouse, that is, “sex-stereotyping.” Smith's “real” claim, said the court, was “based upon his transsexuality,” and “Title VII does not prohibit discrimination based on an individual's transsexualism.”

The Sixth Circuit rejected this analysis, holding that Smith's claim that he was a victim of discrimination because of his “gender non-conforming conduct,” and because of his identification as a transsexual, qualified for coverage under Title VII. As to the sex stereotyping claim, the court noted that in Price Waterhouse, the court concluded Title VII bars not just discrimination because of sex, but also because of sex stereotyping — that is, discrimination because in that case, Hopkins failed to act like a woman. That is, “sex” discrimination includes “gender” discrimination — “gender” being the term “borrowed from grammar to designate the sexes as viewed as social rather than biological classes.”

The Price Waterhouse court had stressed that “in the context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender.” The court emphasized that “we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group.”

The Ruling

The Sixth Circuit agreed with Smith that he stated a Price Waterhouse claim in his complaint. Smith alleged that, after being diagnosed with GID, he began to express a more feminine appearance and manner on a regular basis, including at work. His co-workers commented that he was not masculine enough. His supervisors knew about this allegedly unmasculine conduct and appearance. Smith's supervisors allegedly planned to take action to compel his resignation, by forcing him to undergo multiple psychological evaluations regarding of his gender non-conforming behavior.

In reaching this conclusion, the court held that the district court erred in relying on the pre-Price Waterhouse cases that found “Congress had a narrow view of sex in mind” and “never considered nor intended that [Title VII] apply to anything other than the traditional concept of sex.” The Sixth Circuit concluded that after Price Waterhouse, “an employer who discriminates against women because, for instance, they do not wear dresses or makeup, is engaging in sex discrimination because the discrimination would not occur but for the victim's sex. It follows that employers who discriminate against men because they do wear dresses and makeup, or otherwise act femininely, are also engaging in sex discrimination, because the discrimination would not occur but for the victim's sex.”

Sex stereotyping based on a person's gender non-conforming behavior, said the court, “is impermissible discrimination, irrespective of the cause of that behavior; a label, such as 'transsexual,' is not fatal to a sex discrimination claim where the victim has suffered discrimination because of his or her gender non-conformity.”

The Sixth Circuit went farther, however, and held that even if Smith had alleged discrimination based only on his self-identification as a transsexual — as opposed to his specific appearance and behavior — that claim too was actionable. “By definition,” said the court, “transsexuals are individuals who fail to conform to stereotypes about how those assigned a particular sex at birth should act, dress, and self-identify. Ergo, identification as a transsexual is the statement or admission that one wishes to be the opposite sex or does not relate to one's birth sex. Such an admission … itself violates the prevalent sex stereotype that a man should perceive himself as a man.” The court then made the observation that “discrimination based on transsexualism is rooted in the insistence that sex (organs) and gender (social classification of a person as belonging to one sex or the other) coincide. This is the very essence of sex stereotyping.” On these grounds, it permitted Smith's case to proceed.

If you have practiced employment law for more than a decade, you probably assume that Title VII does not cover transsexuals, transvestites or other transgendered individuals. It's simple: A lot of cases have held that “sex” discrimination does not extend beyond traditional notions of “male” and “female.” Besides, an individual's sexual orientation is not protected under Title VII, so why should the transgendered be protected?

Such an assumption is no longer necessarily valid. There appears to be a growing trend toward recognizing a cause of action for sex discrimination under Title VII when a transgendered employee suffers an adverse employment action. This development is grounded in the Supreme Court's decision in Price Waterhouse v. Hopkins , 420 U.S. 228 (1989), the case that found sex stereotyping can violate Title VII. Recently, in Smith v. City of Salem, Ohio , 369 F.3d 912 (6th Cir. 2004), the Sixth Circuit used the Price Waterhouse analysis to hold that a transitioning pre-operative transsexual could proceed with his claim of sex discrimination both because of sex stereotyping and because transgendered individuals are covered under the Act.

The Case

According to his complaint, Jimmie Smith was a lieutenant in the Salem Fire Department and had worked there for 7 years without incident. Smith, a male by birth, was diagnosed with Gender Identity Disorder (GID). After this diagnosis, Smith began to express a more feminine appearance on a full-time basis, including at work. This change in appearance was consistent with international medical protocols for treating GID.5

Not all of Smith's co-workers embraced his transition: They began questioning him about his appearance and commenting that his appearance and mannerisms were not “masculine enough.” Smith decided to tell his immediate supervisor, Thomas Eastek, about the GID diagnosis and treatment. He also told Eastek that it was likely his treatment for GID would eventually include a complete physical transformation from male to female. Eastek then told Fire Chief Walter Greenway about Smith's behavior and diagnosis.

Greenway was not thrilled with Smith's situation, and met with the City's Law Director “with the intention of using Smith's transsexualism and its manifestations as a basis for terminating his employment,” according to the complaint. At a meeting of the City's executive body in April 2001, a plan was hatched to get Smith to terminate his employment. It was agreed that the Salem Civil Service Commission would require Smith to undergo three separate psychological evaluations with physicians of the City's choosing. The hope was that Smith would either resign or refuse to comply. If he refused to comply, it was reasoned, the City could terminate Smith's employment on the ground of insubordination.

Two days later, Smith's lawyer called the City's lawyer to tell him that Smith was aware of the plan. Smith's lawyer promised legal action if the plan was executed. Four days after that, Fire Chief Greenway suspended Smith for one 24-hour shift, based on an alleged infraction of a City and/or Fire Department policy. Smith appealed the suspension and, after a hearing before the Salem Civil Service Commission, the suspension was upheld. Smith appealed the Commission's decision to state court, which reversed the suspension.

Smith then sued the City and various individual defendants in federal court, alleging sex discrimination and retaliation in violation of Title VII, violation of 42 U.S.C. ' 1983, and state law claims of invasion of privacy and civil conspiracy. The District Court dismissed the federal claims and declined to exercise supplemental jurisdiction over the state law claims. Smith appealed.

The Appeal

On appeal, The Sixth Circuit noted that the only real dispute before it was whether Smith properly alleged a claim of sex stereotyping under Price Waterhouse v. Hopkins, and whether Smith alleged that he suffered an adverse employment action. Smith alleged that he suffered discrimination and retaliation “because of … sex” in violation of Title VII. The district court had dismissed the Title VII claims on the ground that Smith had merely “invoked” the term-of-art created by Price Waterhouse, that is, “sex-stereotyping.” Smith's “real” claim, said the court, was “based upon his transsexuality,” and “Title VII does not prohibit discrimination based on an individual's transsexualism.”

The Sixth Circuit rejected this analysis, holding that Smith's claim that he was a victim of discrimination because of his “gender non-conforming conduct,” and because of his identification as a transsexual, qualified for coverage under Title VII. As to the sex stereotyping claim, the court noted that in Price Waterhouse, the court concluded Title VII bars not just discrimination because of sex, but also because of sex stereotyping — that is, discrimination because in that case, Hopkins failed to act like a woman. That is, “sex” discrimination includes “gender” discrimination — “gender” being the term “borrowed from grammar to designate the sexes as viewed as social rather than biological classes.”

The Price Waterhouse court had stressed that “in the context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender.” The court emphasized that “we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group.”

The Ruling

The Sixth Circuit agreed with Smith that he stated a Price Waterhouse claim in his complaint. Smith alleged that, after being diagnosed with GID, he began to express a more feminine appearance and manner on a regular basis, including at work. His co-workers commented that he was not masculine enough. His supervisors knew about this allegedly unmasculine conduct and appearance. Smith's supervisors allegedly planned to take action to compel his resignation, by forcing him to undergo multiple psychological evaluations regarding of his gender non-conforming behavior.

In reaching this conclusion, the court held that the district court erred in relying on the pre-Price Waterhouse cases that found “Congress had a narrow view of sex in mind” and “never considered nor intended that [Title VII] apply to anything other than the traditional concept of sex.” The Sixth Circuit concluded that after Price Waterhouse, “an employer who discriminates against women because, for instance, they do not wear dresses or makeup, is engaging in sex discrimination because the discrimination would not occur but for the victim's sex. It follows that employers who discriminate against men because they do wear dresses and makeup, or otherwise act femininely, are also engaging in sex discrimination, because the discrimination would not occur but for the victim's sex.”

Sex stereotyping based on a person's gender non-conforming behavior, said the court, “is impermissible discrimination, irrespective of the cause of that behavior; a label, such as 'transsexual,' is not fatal to a sex discrimination claim where the victim has suffered discrimination because of his or her gender non-conformity.”

The Sixth Circuit went farther, however, and held that even if Smith had alleged discrimination based only on his self-identification as a transsexual — as opposed to his specific appearance and behavior — that claim too was actionable. “By definition,” said the court, “transsexuals are individuals who fail to conform to stereotypes about how those assigned a particular sex at birth should act, dress, and self-identify. Ergo, identification as a transsexual is the statement or admission that one wishes to be the opposite sex or does not relate to one's birth sex. Such an admission … itself violates the prevalent sex stereotype that a man should perceive himself as a man.” The court then made the observation that “discrimination based on transsexualism is rooted in the insistence that sex (organs) and gender (social classification of a person as belonging to one sex or the other) coincide. This is the very essence of sex stereotyping.” On these grounds, it permitted Smith's case to proceed.