Jottings By An Employer's Lawyer

Sunday, April 02, 2006

Transsexuality - A Third Way

One area that I have been following recently for a speech I have given and will be giving, The Changing Face of Discrimination Law, covers the recent cases focusing on gender stereotyping and the 6th Circuit's rather startling break with the traditional view that transsexuals are not protected under Title VII. Based on language from Price Waterhouse, their decisions have an appealing logic but do seem to stretch the wording not only further intended, but perhaps to a breaking point.

That is the view of District Judge James Robertson of the District of Columbia, who now argues for a different model to deal with such cases -- simply to treat those discriminated against because of dysphoria as being discriminated against because of their sex. Schroer v. Billington, (D. D.C. 3/31/06) [pdf]. That view would require rejection of the long standing precedent of the 7th Circuit, Ulane v. E. Airlines, the case generally cited for the traditional view of non-coverage.

A hat tip to Professor Paul Secunda and his report, Transexual Can Sue for Sex Discrimination Under Title VII. Like the Professor, this is an area I will be following.

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