Title VII Protection and Gender Non-Conformity:
What does "Sex" mean in Title VII?
Travis Taylor
Civil Rights Investigator
Seattle Office for Civil Rights
The primary purpose of the paper is to identify, understand, and criticize courts' analysis and application of Title VII's proscription of "sex" discrimination in the context of gender non-conformity. Discrimination "based on sex", for example, has been expanded by the courts to include sex stereotyping, sexual harassment, hostile work environment, and same-sex harassment claims. At the same time the courts fail to recognize harassment based on sexual orientation and transsexuals as correlated in any way to "sex" discrimination. It is this dichotomy which the paper addresses.
Part I lays a foundation for the terminology necessary to understand the distinct but interrelated characteristics of "sexual identity" and shows that part of the courts' difficulty in applying Title VII is semantic. "Sexual identity" is made up of sex, gender, gender identity, and sexual orientation. Each is related but not necessarily caused by another.
Gender non-conformists are those people who do not fit the stereotypes which society (and the law) says go along with a person's birth sex. Among gender non-conformists are those whose gender, gender identity, or sexual orientation are not congruent with their birth sex. For example, a masculine female (regardless of her sexual orientation) would be a gender non-conformist. A homosexual masculine male is another example of a gender non-conformist.
Part II discusses the circumstances in which a plaintiff alleging "sex" discrimination will clearly prevail. Among these are disparate treatment and disparate impact cases, where plaintiffs are either directly or indirectly treated differently because of their sex. In addition, the Supreme Court has interpreted Title VII as prohibiting sexual harassment.
Part III describes the situations not currently explicitly covered by Title VII, such as discrimination against gays and transgendereds. Notably, courts have routinely interpreted the lack of legislative history on what Congress intended "sex" to mean as an indication that Congress had only traditional notions (i.e. only males and females) of "sex" in mind. Plaintiffs have been routinely denied even an opportunity to prove that the discrimination they suffered was based on their sex since courts as a matter of law determine that they were discriminated against because of their sexual orientation or "decision to change sex". Courts ignore the social construction of "sex" when faced with gays or transgendereds, but have no problem recognizing it when faced with heterosexual plaintiffs.
Part IV Section A analyzes the notion of sex stereotyping in light of Price Waterhouse v. Hopkins. On the one hand, courts have broadened the definition of "sex" to include harassment and sex-stereotyping claims. On the other hand courts rigidly hold onto the binary medical conception of sex. The bulk of the paper deals with how and when Courts have recognized harassment claims for heterosexual and homosexual plaintiffs. It is this dichotomy of treatment between the two, in the context of harassment claims that provides some insight into the invidious and hidden discrimination presently occurring in the courts.
Part IV Section B posits that Courts should analyze cases
involving plaintiffs who have partners of the same sex in a similar fashion
to cases involving plaintiffs who have partners of different races. Just
as it is discrimination "because of race" when employees are
discriminated against because of the race of their partner, it is discrimination
"because of sex" when employees are discriminated against because
of the sex of their partner.
Part V provides conclusions about the current state of discrimination
law, including the argument that certain rulings should be deemed unconstitutional
in light of Romer v. Evans and gives recommendations to lawyers, policy
makers, and judges dealing with these issues.