Jottings By An Employer's Lawyer

Monday, June 07, 2004

Transsexual Discrimination - By Definition Sex Stereotyping and Actionable Under Title VII

My former summer clerk mate, then simply Guy Cole, now the Honorable R. Guy Cole, Jr. of the 6th Court of Appeals may well have opened a new fault line of social debate, just as the country is beginning to work through same sex marriages. Based on the Supreme Court's holding in Price Waterhouse v. Hopkins, in Smith v. City of Salem, Ohio (6th Cir. 6/01/04) [pdf] he finds that a fireman [masculine term purposely used], diagnosed with gender identification disorder, who had begun to adopt more feminine characteristics as the first steps toward a sex change, states a claim for gender discrimination under Title VII, whether based on "sexual stereotyping" or status as transsexual.

Interestingly, three news popular news sources seemed to have caught the story,, Gayapolis News and the Fox affiliate in Youngstown, WKBN.

If just reading the headline or the headnote, one might initially reject the argument, particularly the assertion that the status of transsexual alone is enough to gain Title VII protection. Before making that judgment, you should read Judge Cole's opinion before assuming even in circuits other than the 6th, that this is not a serious argument. And for future reference, at least in either the Supreme Court or the 6th Circuit, both have now rejected the use of quotes around the phrase sexual stereotyping.

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