Here is the latest turn of events, according to material provided by the International Conference on Transgender Law & Employment Policy.
LEGAL OPINION:
Despite HRCF'S continuing pronouncements, transgenders are NOT covered by Title VII of the Civil Rights Act.
From 1977 through 1984, three federal appellate courts ruled that:
1. "Sex" under Title VII does not encompass transexuals and that
2. Job discriminiation against transexuals is actually based on "change of sex" and therefore not prohibited by Title VII.
Further, the DC court ruled in July 1994 that "courts have firmly distinguished transexuality from homosexuality" (in a Title VII context. Meanwhile, HRCF continues to assert that Title VII covers the transgendered. Why does HRCF do that?
A letter dated 09 August 1995 and sent to an ICTLEP Director by the Human Rights Campaign Fund (HRCF) states" to the extent transgendered people are discriminated against based on gender they are covered under Title VII of the Civil Rights Act:".*
Nothing could be further from the truth.
TRANSGENDERED PEOPLE HAVE NO LEGAL PROTECTION AS TRANSGENDERED PEOPLE UNDER TITLE VII OF THE CIVIL RIGHTS ACT! See Ulane v. Eastern Airlines, Inc., 742 F.2d 1081 (7th Cir. 1984); Holloway v. Arthur Anderson and Company, 566 F.2d 659 (9th Cir. 1977); Sommers v. Budget Marketing, Inc., 667 F.2d 748 (8th Cir. 1982).
To date no court has found Title VII of the 1964 Civil Rights Act applicable to discrimination cases brought by transexuals. Courts have uniformly held that federal non- discrimination laws do not apply to transexuals (whether pre, non or post surgical) or crossdressers. The courts in the cases cited above concluded that there was no legislative history to support broadening the definition of "sex" to include transexuals. In other words, you cannot discriminate against men because they are men or women because they are women, but you can legally discriminate against transexuals because they are transexuals.
In Sommers v. Budget Marketing, Inc., 667 F.2d 748 (8th. Cir. 1982) the Court of Appeals held that the word "sex" in Title VII ban on sex discrimination in employment is to be given its "plain meaning" and does not encompass transexuals. In this case the employer dismissed Sommers because she misrepresented herself as an anatomical female on her job application. Budget Marketing further alleged that the misrepresentation led to a disruption of the company's work routine in that a number of female employees said they would quit if Sommers were allowed to use female rest room facilities. Sommers' attorney alleged that she had been discriminated against because of her status as a female with the anatomical body of a male and the fact that she had not yet had sexual conversion surgery should not prevent her from being classified as female.
The Court of Appeals went on to emphasize that Title VII did not have sufficient legislative history to indicate that Congress intended for the term "sex" to have anything more than its plain meaning. ("Sex" is not defined anywhere in the Act, nor did the court attempt to define it.) The legislative history clearly indicates that the major thrust of Title VII was toward providing equal opportunities for women. THERE IS NO PROTECTION UNDER TITLE VII FOR TRANSGENDERED PEOPLE, WHETHER THEY ARE TRANSEXUALS (WHETHER PRE, NON OR POST SURGICAL) OR CROSSDRESSERS, TRANSVESTITES, ALL OF THE ABOVE, OR ANY COMBINATION OF THE ABOVE.
Just last year, in Underwood v. Archer Management Services, Inc., (DC, 94-428, 7-12- 94), a federal judge dismissed claims of discrimination on the basis of sex and sexual orientation, citing cases holding the under Title VII of the 1964 Civil Rights Act, sex "does not encompass transexuality" and "being discharged on the basis of one's transexuality does not violate the D.C. law." In dismissing the sexual orientation discrimination claim, the judge noted that the D.C. statute defined the term "sexual orientation" as "male or female homosexuality, heterosexuality and bisexuality, by preference or practice." The court went on to state "courts have firmly distinguished transexuality from homosexuality" (in a Title VII context).
Thus, it appears that the only way to ensure that there is federal protection against discrimination for all Americans is to make sure that NO ONE is left out ENDA, whether purposefully or inadvertently. It is clear from a number of federal court decisions that there is NO FEDERAL LAW PROTECTION FOR TRANSGENDERED PEOPLE.
The 09 August 1995 HRCF letter also stated, "HRCF supports federal protection against discrimination for all Americans, including transgendered people" and further stated, "We will continue to work diligently towards helping create a society in which every American is safe and is judged by their merits alone." IF HRCF REALLY MEANS THESE TWO STATEMENTS, THEN IT MUST WORK TOWARDS TRANSGENDER INCLUSION IN THE ENDA BILL.
In 1993, Minnesota enacted the first state non-discrimination statute that specifically includes transgendered persons within a "protected class." Minnesota statutes, 1992, section 363.01 was amended to add an inclusive "sexual orientation" as a protected class along with race, color, creed, religion, sex, age, etc.
Subdivision 45 inclusively defined "sexual orientation" as follows: "Sexual orientation" means having or being perceived as having an emotional, physical or sexual attachment to another person without regard to the sex of that person or having or being perceived as having an orientation for such attachment, or having or being perceived as having a self image or identity not traditionally associated with ones biological maleness or femaleness. "Sexual orientation" does not include a physical or sexual attachment to children by an adult.
The subdivision 45 language is all encompassing. It includes heterosexuals, homosexuals, transexuals, crossdressers, transvestites, gay drags, lesbians, gays, bisexuals, and any combination thereof.
Including transgenders in legislation can be and HAS BEEN DONE. It needs to be done by HRCF, in the case of ENDA, if HRCF truly believes what it spins in its response letters.
Laura E. Skaer
Attorney
Employment Law Moderator
ICTLEP, Inc.
Phyllis Randolph Frye
Attorney
Executive Director
ICTLEP, Inc.
*(NOTE: When the ICTLEP Director inquired of HRCF (as an HRCF member) about
HRCF's deliberate and knowing exclusion of transgenders in the 1994 and 1995
ENDA bills, she did not identify herself as being an ICTLEP Director.
Therefore, we must assume by the response letter on HRCF letterhead that, as
of the 09 August 1995, HRCF was sending out the above spins and falsehood in
a "form letter" format to all similar inquiries.)
(NOTE: on 15 January 1995, the Directors of the National Lesbian and Gay Law Association (NLGLA, affiliated with the American Bar Association) UNANIMOUSLY passed a resolution on transgender inclusion. In part, it read, "(2) [NLGLA] strongly urges Members of Congress to include the transgendered in the Employment Non-Discrimination Acto of 1994 (ENDA) and any successor or amended bills,".)
(NOTE: On 16 June 1995, Stephen Whittle, Associate Professor, University of Manchester Law School, Manchester, England, while lecturing at the 4th Annual ICTLEP Conference (in Houston) entitled "TRANSGEN95: YOUR JOBS, YOUR INSURANCE AND HEALTH, YOUR RIGHTS AND YOUR DOCUMENTS," stated the following:
"I think the issue [in England] is increasingly becoming an employment issue, employment protection. Because birth certificates can't be changed, people don't have employment protection under the sex discrimination law in England.
I would argue that there has been a pretty disasterous effort here in the States, too. You [in the States] lack employment protection completely. And the case that is going [from England] to the European Court of Justice actually highlights this point that in England you are not of your new gender role. And all any employer has to say is that they would sack somebody going the other way. So if you are female to male and they sacked you they'd say, 'Well ,we'd do the same thing to a male to female.' If you are male to female, they'd say, 'Well, we'd do the same to a female to male.' "
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