Reblogging for history only.
An Examination of Strategies to Obtain Legislation that Prohibits Discrimination Based on Gender Identity in the State of Maryland
The purpose of this paper is to explore the ways in which civil rights advocates in Maryland may win the fight to obtain protections against discrimination based on gender identity. For the purposes of this paper, we assume that we must advocate for civil rights laws inclusive of gender identity, but that we must be strategic in the way we accomplish this goal. In the words of one Maryland delegate, “(I)t needs to be covered – the question is how do we do it.”1
For the purposes of this paper, the term gender identity2 will be used to include transsexualism and transgendered identity. Transsexualism has been defined as “the desire to change one’s anatomic sexual characteristics to conform physically with one’s perception of self as a member of the opposite sex.”3 Transsexualism is officially a specific form of a broader psychiatric disorder termed gender identity disorder.4 Transgendered identity refers to having a self-image, expression, or identity not traditionally associated with one’s sex at birth or being perceived in this way.
We suggest that advocates for civil rights use the term gender identity in framing the debate regarding anti-discrimination protections. This term, unlike other terms, has neutral connotations. In Maryland, opponents to efforts to advance civil rights based on gender identity have seized on the terms “transgendered” and “transsexual” to paint an ugly and bigoted picture of our communities.5 The term gender identity also is broadly applicable, as all people, whether they realize it, have a gender identity.6 Additionally, the terms “transgendered” and “transsexual” have been tied, perhaps wrongly, to sexual orientation. It is suggested that it may be better to unbundle these terms so as to reinforce the fact that one does not have to be gay to be transgendered.7
B. Ways to Prohibit Discrimination Based on Gender Identity
1. The Gender Identity Category
In 1996, Delegates Sharon Grosfeld and Salima Siler Marriott sponsored HB 325, a bill to prohibit employment discrimination based on gender identity. The bill defined “gender identity” as “having or being perceived as having a self-image, expression, or identity not traditionally associated with one’s sex at birth.”8 Commerce and Government Matters heard testimony on the bill on March 7, and gave the
bill an unfavorable report on March 11.
Delegate Grosfeld, a strong supporter of civil rights protections for the transgendered community, indicated that she did not believe that it would be a useful strategy to introduce a separate gender identity bill in the future, because if one introduces both a sexual orientation bill and a gender identity bill, they run the risk of canceling each other out. “It undermines the other bill (the Anti-Discrimination Act),” she said. “It doesn’t help either cause.”9
Organizations that testified in support of HB 325 included the Free State Justice Campaign, It’s Time Maryland, International Conference on Transgender Law & Employment Policy, Inc., the Maryland Commission for Women, First Unitarian Church of Baltimore, the Maryland Classified Employees Association, and Maryland Commission on Human Relations. Opponents to the bill included the Maryland Retailers Association and the Maryland Chamber of Commerce.10
2. The Sexual Orientation Category
Since 1990, Delegate Sheila Hixson, D-Montgomery, has introduced legislation to ban discrimination based on sexual orientation. Prior to 1999, the bill died each year in committee.11 In 1999, numerous sponsors, backed by the strong support of Democratic Governor Parris N. Glendening, introduced HB 315, a bill to ban discrimination based on sexual orientation in employment, housing and public accommodations.12 HB 315, cross-filed with SB 138, offered a broad definition of sexual orientation, defining it as “heterosexuality, homosexuality, or bisexuality,” as well as “having or being perceived as having a self-image, expression, or identity not traditionally associated with one’s sex at birth,” a definition intended to explicitly ban discrimination based on gender identity. The House Judiciary
Committee, and later the House of Delegates, approved HB 315 without the definition intended to prohibit discrimination based on gender identity, but the bill died in the Senate Judicial Proceedings Committee without ever coming up for a vote. Even though the version of the bill passed by the House removed the gender identity protections, Senate committee opponents used the definition of the bill that would have covered gender identity for their own political gain.13
Nine states and the District of Columbia prohibit employment discrimination on the basis of sexual orientation. Of these, only the Minnesota statute explicitly includes transgendered and transsexual people as well as lesbian, gay and bisexual people.14 In the absence of evidence of an explicit intention to include transsexual people in state laws prohibiting sexual orientation discrimination, courts have interpreted these laws narrowly.15
A growing number of towns and cities have local ordinances prohibiting discrimination against transgendered and transsexual people, including, San Francisco, Ca; Cedar Rapids, Iowa; Evanston, IL; New Orleans, LA; Cambridge, MA; and Seattle, WA.
3. The Gender Category
No legislation has ever been introduced in the state of Maryland that would expand the definition of sex to include gender identity. Article 49B, the statute that prohibits discrimination based on a variety of characteristics, uses the term sex rather than gender. Sex has been applied by Maryland courts to mean biological sex – male or female.
Employment discrimination cases brought under state laws prohibiting sex discrimination have been unsuccessful.16 Some state courts have indicated a willingness to depart from Title VII precedents and to interpret state and local sex discrimination laws to include transsexual people.17
Glendora Hughes, general counsel for the Maryland Commission on Human Relations, said that the Commission has never been asked to accept a complaint from a transgendered individual who claimed that an adverse action had been taken against him or her. The authors asked Hughes whether the Commission would accept a complaint of sex discrimination from an “effeminate man, a butch woman, or any person who identified as transgendered” who has an adverse action taken against them not
because of sexual orientation, but because of gender stereotyping. Hughes said the Commission had no policy on this issue, and would determine whether it would accept such a complaint if and when the case presented itself. She said that a decision to accept a case like this would require a significant commitment of the Commission’s resources, as the issue would almost certainly be litigated. She also said that if the Commission promulgated a policy on this issue, it would come from either the Commission’s Commissioners or from herself and Henry Ford.18
The authors suggest that advocates may want to encourage members of the transgendered community who have faced an adverse action as defined by Article 49B to file a complaint of discrimination with the Commission under the prohibition against sex discrimination. The authors further suggest that it would be most helpful to define the issue if the individual identified as heterosexual.
4. Transsexual as Disability – A Separate Case
Article 49B, the statute enforced by the Maryland Commission on Human Relations, defines “disability” as “any physical disability, infirmity, malformation or disfigurement which is caused by bodily injury,
birth defect or illness including epilepsy, and which shall include, but not be limited to, any degree of paralysis, amputation, lack of physical coordination, blindness or visual impairment, deafness or hearing impairment, muteness or speech impediment or physical reliance on a seeing eye dog, wheelchair, or other remedial appliance or device; and any mental impairment or deficiency as, but not limited to,
retardation or such other which may have necessitated remedial or special education and related services.”19
According to Henry Ford, executive director of the Maryland Commission on Human Relations, the MCHR has accepted one complaint from a transsexual individual under disability. Mr. Ford’s assertion that the Commission already has the power to accept cases of discrimination against transsexuals allowed some supportive legislators to agree to the deletion of the transgendered- inclusive definition in HB 315. According to Delegate Grosfeld, Ford’s assertion that the Commission already had jurisdiction over complaints filed by transsexuals gave supporters of HB 315 the assurance they needed to support a deletion of the second definition of sexual orientation intended to protect individuals from discrimination based on gender variance.
“If it is included in practice, that can be enough,” said Delegate Grosfeld. “Members of the transgendered community may feel differently, but it seemed very clear to all of us (on the House Judiciary Committee who supported the legislation) that at least from position of the Human Relations Commission they could and have dealt with these cases.”20
Most states and the District of Columbia prohibit employment discrimination against people with disabilities under state law. Like the Rehabilitation Act and the ADA, several of these statutes expressly exclude transsexual people. These include Indiana, Iowa, Louisiana, Nebraska, Ohio, Oklahoma, Oregon, Texas, and Virginia. Even in the absence of a specific exclusion, courts in some states have held that
transsexualism is not a protected disability.21 Maryland does not have a specific exclusion, and the Commission appears to operate under the policy that it will accept complaints of discrimination from transsexuals as instances of disability discrimination. This issue has not been litigated.
To date, the only state in which an appellate court has ruled that transsexual people may be protected under a state disability law is Washington. In Doe v. Boeing Co.22, the Washington Supreme Court held that although gender dysphoria “is a medically cognizable condition with a prescribed course of treatment,” the plaintiff (a male-to-female transsexual) had failed to prove that she was discriminated against because of her transsexualism.23 The plaintiff in Doe was discharged after she wore a string of pearls to work, in violation of Boeing’s unwritten dress policy, which allowed Doe (and all other “male”
employees) to wear male or unisex clothing but prohibited her from wearing female clothing until she had undergone sex reassignment surgery.24 The Washington Supreme Court held that “Boeing discharged Doe because she violated Boeing’s directives on acceptable attire, not because she was gender dysphoric.”25 The court also rejected Doe’s claim that Boeing’s dress code was not a reasonable accommodation of her condition. The court held that Boeing had a legitimate interest in defining acceptable attire at work and that “Boeing developed and reasonably enforced a dress policy which balanced its legitimate business needs with those of its employees.”26 The court also concluded that because Doe’s condition as a transsexual person did not impede her ability to perform her job, Boeing had no legal duty to provide her any special accommodation.27
At the administrative level, state governmental bodies responsible for enforcing state disability protection laws have issued favorable rulings for transsexual plaintiffs in at least two states. In a decision issued on Oct. 9, 1996, the Oregon Bureau of Labor and Industry ruled that a transsexual woman who was fired from her job as a result of her transition was protected from employment discrimination under the Oregon state disability law. Unfortunately, the Oregon Legislature responded to this decision in 1997 by amending the state law to state that “an employer may not be found to have engaged in an unlawful employment practice solely because the employer fails to provide reasonable accommodation to a person with a disability arising out of transsexualism.”28 The Florida Human Rights Commission has also ruled that transsexual people are protected under the Florida state law prohibiting discrimination on the basis of disability.29
C. Implementing Strategies
1. County by County or City by City
Three Counties – Howard, Montgomery, and Price George’s – and Baltimore City prohibit discrimination based on sexual orientation. Two cities – Takoma Park and Rockville – also prohibit such discrimination by municipal ordinance.
One strategy for broadening civil rights laws to prohibit discrimination based on gender identity would be to amend these local law or to explore whether current law would permit a favorable application to
transgendered individuals (i.e. whether a person could file a complaint based on sex and/or sexual orientation).
a) Baltimore City
Sex is not defined in the ordinance. According to the Baltimore City Community Relations Commission’s Walter Shook, it would not accept a complaint of discrimination by a transgendered person under the sex category. Shook further stated that the CRC had no policies in place on this issue, and that each case is evaluated on a “case by case” basis.”(I) wouldn’t take it under it (transgendered) under sex,” he said. “These questions don’t come up very often and if it (inclusion of transgendered-inclusive language) would jeopardize the whole bill (on a state level) it would be a mistake to include it. Practically it does not impact that many people.”
Shook was unfamiliar with the Price Waterhouse case, and demonstrated a lack of knowledge about sex stereotyping and transgendered issues. The authors suggest that education occur with the Community Relations Commission to ensure the level of knowledge needed to properly consider this issue.
Shook said that the CRC has a “very low threshold” at intake, and often takes arguable cases that it later determines cannot be covered by the Baltimore City law.30 The authors suggest that we should locate a person who identifies as transgendered to file a complaint with the CRC, assuming they have been adversely affected in a way contemplated by the statute.
2) Physical Disability
Physical disability is defined as “any physical condition, infirmity, malformation or disfigurement which is caused by bodily injury, birth defect, trauma, or illness, including epilepsy, which shall include, but
not be limited to, any degree of paralysis, amputation, lack of physical coordination, blindness or visual impairment, deafness or hearing impairment, muteness or speech impediment or disorder or physical
reliance on a seeing eye dog, wheelchair, or other remedial appliance, device or medication, and includes a record of having such a disability, but such terms does not include current, illegal use of or addiction to a controlled substance.”
3) Mental Disability
Mental disability means “the existence of, or history of, an emotional or intellectual disorder, as defined by psychiatrists, which requires special education or psychotherapeutic services, and includes being regarded as having such an impairment, but such term does not include current. illegal drug use of or drug addiction to a controlled substance, but shall not include a judicial determination of disability.”
The definition does not specifically exclude transsexuality from the definition of mental disability. The authors suggest that education occur in the Baltimore City transsexual community to identify an individual who faced an adverse action because of his or her transsexuality. This person should be encouraged to file a complaint of discrimination with the Community Relations Commission.
4) Sexual Orientation
Sexual orientation is defined as “the status of an individual as to homosexuality, heterosexuality or bisexuality. This section is not intended to permit any practice prohibited by state or local law.” Walter Shook indicated that the CRC has accepted “one or two” cases of discrimination against transsexuals, using the sexual orientation category. In both cases, the persons also identified as gay. When asked whether the CRC would accept the case of a transgendered individual under sexual orientation, he indicated that it was likely. “If a person came in and said an action occurred because they perceived me as being gay, I’d take that case,” he said.31
b) Howard County
Like the state law and other local ordinances, sex is not defined. The authors have contacted Howard County Office of Human Rights to inquire into its case-acceptance policies.
Handicap is defined as “(w)ith respect to an individual: a) a physical or mental impairment which substantially limits one or more of the individual’s major life activities; or b) a record of having such an impairment; or c) being regarded as having such an impairment. But the term “handicap” does not include current illegal use of or addiction to a controlled dangerous substance as defined in . . . the Controlled Substance Act.”
Transsexualism is not specifically excluded from the definition of handicap.
3) Sexual Orientation
“The preference or practice of an individual as to homosexuality, heterosexuality or bisexuality. This section is not intended to permit a sexual practice prohibited by law.”
c) Montgomery County
Like the state law and other local ordinances, sex is not defined.
Michael Dennis, Compliance Director of the Montgomery County Human Relations Commission, said that he did not recall a case involving a transsexual. He said, however, that the commission would “absolutely” take that case under sex. “Gender change is a sex issue from our perspective,” he said. “It’s making a decision based on sex, the gender of the person.” Dennis indicated that members of the transgendered community made several presentations to the commission, arguing that sex did not give cover them. Dennis said that both he and Jennifer Burdick, former executive director of the MCHR, agreed that transsexuals could file a discrimination complaint in Maryland based on sex.
Dennis further stated that he did not believe that transgendered people – e.g. the feminine man and masculine women – would have a claim. “It is a personal appearance issue, a mannerism issue, the way they comport themselves,” he said. He did not see it a sex stereotype issue.32
This refers to “a physical, mental or emotional impairment or perception by others of such condition of any person to which reasonable accommodation can be made and which substantially limits one (1) or
more major life activities. The term also includes but is not limited to the following: Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one (1) or more of the following body systems: Neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin
and endocrine; alcoholism or prior drug dependency; or any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness and specific learning disabilities.”
Transsexualism is not specifically excluded from the definition of handicap.
3) Sexual Orientation
This is defined as “male or female homosexuality, heterosexuality, or bisexuality (1) by practice between consenting individuals over the age of eighteen (18) years; or (2) by inclination.”
According to Michael Dennis, the Commission has accepted two cases where a person was discriminated against based on their perceived sexual orientation even though that person was not in fact gay. In both cases, the complainants were called anti-gay epithets. Dennis indicated that both cases also qualified as cases of a sexual harassment.33 A transgendered individual may have some room to file under perceived sexual orientation.
d) Prince George’s County
The statute is not yet available to the authors.
2. Statewide Legislation
Delegate Grosfeld advised advocates for civil rights protections to focus their efforts on the Senate for the 2000 General Assembly session. She suggested that advocates focus on conservative Democrats in the Senate who may be swayed. Additionally, Delegate Grosfeld suggested that “all the groups get together and urge (Senate President) Miller to put it in a different committee.”34
3. Code Of Maryland Regulations (COMAR)
4. Litigation Possibilities
a) Federal Disability Law
Transsexual people are not protected under federal laws that prohibit discrimination on the basis of handicap or disability.35 As noted above, transsexualism has been recognized as a medical condition for many years, and it is included as a psychiatric disorder in the DSM under the rubric of “gender identity disorder.” Nonetheless, both the Rehabilitation Act of 1973 (“Rehabilitation Act”) and the Americans with Disabilities Act (“ADA”) explicitly exclude both “transsexualism” and “gender identity disorders not resulting from physical impairments” from protection under either Act.36
b) Federal Employment Law
1) Sex Stereotyping
A transgendered person fired because of gender nonconformity may be able to utilze the U.S. Supreme Court’s 1989 decision in Price Waterhouse v. Hopkins,37 which dealt with a woman who did not conform to traditional feminine norms. Ann Hopkins, a successful senior manager and partner candidate at Price Waterhouse, filed an action under Title VII after some partners involved in assessing Hopkins for partnership reacted negatively to her personality because she was a woman. Justice Brennan38 summarized the evidence:
One partner described her as “macho”; another suggested that she “overcompensated for being a woman”; a third advised her to take “a course at charm school.” Several partners criticized her use of profanity; in response, one partner suggested that those partners objected to her swearing only “because it’s a lady using foul language.” Another supporter explained that Hopkins “ha[d] matured from a tough-talking somewhat masculine hard-nosed mgr to an authoritative, formidable, but much more appealing lady ptr candidate.” But . . . the man who . . . bore responsibility for explaining to Hopkins the reasons for the Policy Board’s decision to place her candidacy on hold . . . delivered the coup de grace: in order to improve her chances for partnership, [he] advised, Hopkins should “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.”
Price Waterhouse tabled the issue of Hopkins’ partnership in 1982 and refused to reconsider her in 1983. Hopkins filed a Title VII action and introduced expert testimony at trial opining that sex stereotyping had influenced the partnership selection process. Hopkins prevailed at trial and on appeal.
Although the issue before the Supreme Court on Price Waterhouse’s petition for certiorari was burden allocation in mixed-motive cases under Title VII, a plurality of Justices39 characterized Price Waterhouse’s error as impermissible reliance upon partner comments contaminated by stereotypes about sex-based traits, particularly the “trait” of aggressiveness Hopkins displayed:
Hopkins showed that the partnership solicited evaluations from all of the firm’s partners; that it generally relied very heavily on such evaluations in making its decision; that some of the partners’ comments were the product of stereotyping; and that the firm in no way disclaimed reliance on those particular comments, either in Hopkins’ case or in the past. Certainly a plausible and, one might say, inevitable conclusion to draw from this set of circumstances is that the Policy Board in making its decision did in fact take into account all of the partners’ comments, including the comments that were motivated by stereotypical notions about women’s proper deportment.40
(W)e are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group, for “‘(i)n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.'” Los Angeles Dept. of Water and Power v. Manhart, 435 U.S. 702, 707, n. 13 (1978), quoting Sprogis v. United Air Lines, Inc., 444 F.2d 1194, 1198 (CA7 1971). An employer who objects to aggressiveness in women but whose positions require this trait places women in an intolerable and impermissible catch 22: out of a job if they behave aggressively and out of a job if they do not. Title VII lifts women out of this bind.41
Justice O’Connor stated in her concurrence:
As the Court of Appeals characterized it, Ann Hopkins proved that Price Waterhouse “permitt(ed) stereotypical attitudes towards women to play a significant, though unquantifiable, role in its decision not to invite her to become a partner.” 263 U.S. App. D.C., at 324, 825 F.2d, at 461. . . . At this point Ann Hopkins had taken her proof as far as it could go. She had proved discriminatory input into the decisional process, and had proved that participants in the process considered her failure to conform to the stereotypes credited by a number of the decisionmakers had been a substantial factor in the decision.42
There is no doubt that Congress considered reliance on gender or race in making employment decisions an evil in itself. As Senator Clark put it, “(t)he bill simply eliminates consideration of color (or other forbidden criteria) from the decision to hire or promote.” 110 Cong. Rec. 7218 (1964). See also id., at 13088 (remarks of Sen. Humphrey) (“What the bill does . . . is simply to make it an illegal practice to use race as a factor in denying employment”). Reliance on such factors is exactly what the threat of Title VII liability was meant to deter.43 Earlier cases involving sex stereotyping did not provide much relief for victims of discrimination, particularly the line of cases dealing with grooming codes. These cases are relevant for transgendered and transsexual individuals, as they may or may want to dress in a manner not consistent with their biological sex.
In Fagan v. National Cash Register Co. 44, Fagan challenged a grooming policy that applied to an all-male department under Title VII as prescribing an accepted, “clean-cut” male gender stereotype.45 Gerald Fagan worked for National Cash Register Co. (“NCR”), visiting banks and other like businesses to service their NCR equipment. NCR warned Fagan repeatedly that his hair length violated NCR’s written policy barring long hair among its service technicians, then suspended him. Fagan sued, and the district court dismissed his Title VII claim. A divided D.C. Circuit panel affirmed.
The D.C. Circuit noted the difficulty of arguing that the defendant’s policy constituted a denial of employment opportunity based on sex, because the defendant had hired Fagan, and there was no evidence that any women had ever sought or been denied employment in NCR’s technical service department.46 Accordingly, the court characterized Fagan’s claim as follows:
We have then a situation where a male was indeed employed, and with full knowledge of the company’s policy, insisted upon performing his work on his own terms and upon requiring the company to accommodate to his projection of his own image. He claimed the “right” to wear his hair “styled in my personal projection or the image in the development of my personality.” He admitted on affidavit that “If I would get my hair cut I could come back . . . to work the next morning.”47
The court, however, noted that employers have certain rights to regulate the image their businesses project:
Perhaps no facet of business life is more important than a company’s place in public estimation. That the image created by its employees dealing with the public when on company assignment affects its relations is so well known that we may take judicial notice of an employer’s proper desire to achieve favorable acceptance. Good grooming regulations reflect a company’s policy in our highly competitive business environment. Reasonable requirements in furtherance of that policy are an aspect of
The court recognized that Title VII limits employers’ exercise of that responsibility, stating that “Congress has said that no exercise of that responsibility may result in discriminatory deprivation of equal opportunity because of immutable race, national origin, color, or sex classification. . . . Likewise no discrimination can be based upon constitutionally protected rights such as religion.”49
The court, however, concluded that those limits had not been transgressed because it found the defendant’s policy reasonable, and Fagan’s hair length was not immutable. “(O)ne seeking an employment opportunity as in our situation, where hair length readily can be changed, may be required to conform to reasonable grooming standards designed to further the employing company’s interest by which that very opportunity is provided,” the court found.50
Circuit Judge Wright dissented briefly, citing Phillips v. Martin Marietta Corp.51, and asserting that he would have reversed and remanded for a determination whether or not defendant’s policy qualified as a Bona Fide Occupational Qualification.52 Dodge v. Giant Food, Inc.53 involved a grooming policy that applied to a worksite employing both men and women. The policy, however, established grooming standards based on the covered employee’s sex. Stephen Dodge and other male employees of Giant Food, Inc. were discharged or given unfavorable assignments because their hair length violated Giant’s grooming regulations for men, which did not allow “long or ragged” appearing haircuts, beards, and hair “below the earlobe.” Giant allowed women to wear long hair, if kept neat.54 Dodge brought a Title VII class action on behalf of himself and other male employees discharged or disciplined for violating Giant’s hair-length standards for men. Following a bench trial, the district court found for Giant.
On appeal, the D.C. Circuit acknowledged that Giant’s hair-length regulations classified employees based on sex, but held that Title VII was not intended to reach classifications by sex which do not limit employment opportunities by making distinctions based on immutable personal characteristics, which do not represent any attempt by the employer to prevent the employment of a particular sex, and which do not pose distinct employment disadvantages for one sex.55
Dodge argued that, notwithstanding the fact that Giant’s regulation was not directed toward an immutable personal characteristic, it constituted an irrational impediment to job opportunities and enjoyment based on a sex stereotype, like the no-marriage policy for stewardesses invalidated under Title VII in Sprogis v. United Air Lines, Inc.56, which also involved no immutable characteristic. The D.C. Circuit distinguished Sprogis as follows:
Unlike the employer in Sprogis who did not subject its male employees to any restriction similar to the no-marriage policy, Giant enforces strict grooming regulations against both male and female employees. . . . Furthermore, although neither marriage nor hair length is an unalterable personal characteristic, marriage has a much more fundamental importance to and effect upon an individual’s life. Marriage is more difficult to initiate or to terminate than long hair, and the legal and social ramifications of marriage are far more significant than the consequences of wearing long hair. . . . The issue in these cases is one of degree. Few would disagree that an employer’s blanket exclusion of women from certain positions constitutes “discrimination” within the meaning of Title VII. At the same time, few would argue that separate toilet facilities for men and women constitute Title VII “discrimination.” The line must be drawn somewhere between these two extremes, and we draw the line to exclude Giant’s hair-length regulations from the ambit of Title VII.57
Baker v. California Land Title Co. 58 also addressed a hair-length policy. The company fired Robert Baker for noncompliance with the policy, which permitted women employees to have long hair. The district court dismissed Baker’s Title VII complaint, and the Ninth Circuit affirmed, holding that a “private employer may require male employees to adhere to different modes of dress and grooming than those required of female employees and such does not constitute an unfair employment practice within the meaning of 42 U.S.C. 2000e-2(a).”59
In support, referring to legislative history accompanying the Civil Rights Act of 1964 and the Equal Employment Act of 1972, the court stated:
It seems clear from a reading of the Act that Congress was not prompted to add “sex” to Title VII on account of regulations by employers of dress or cosmetic or grooming practices which an employer might think his particular business required. The need which prompted this legislation was one to permit each individual to become employed and to continue in employment according to his or her job capabilities.60
Citing Fagan and Griggs v. Duke Power Co.61, the court noted that the kind of discrimination barred by Title VII in the areas of race, color and national origin involved “immutable characteristics,” unlike CLTC’s
discharge of Baker due to his hair length:
Obviously, it seems to us, the (Griggs) Court was not talking in terms of hair styles or modes of dress over which the job applicant has complete control. The Court was addressing itself to characteristics which the applicant, otherwise qualified, had no power to alter.62
In Willingham v. Macon Tel. Pub. Co.,63 the company denied Alan Willingham employment due to his long hair. Willingham filed a Title VII action. The district court, interpreting Willingham’s claim as an attack on all sex-based classifications in the workplace, saw a conflict between Willingham’s position and an employer’s “fundamental right” to set reasonable grooming standards in keeping with social
mores.64 The court granted summary judgment for the defendant, finding that Congress had provided no clear mandate in Title VII to encroach upon employers’ rights in this area. The court found that:
(w)hat the Act . . . precludes is discrimination in employment opportunities and conditions of employment motivated by sexual considerations. . . . (Plaintiff) is not precluded from employment opportunities because of his sex, nor would it appear that such is the case with any other male or female applicant. From all that appears, equal job opportunities are available to both sexes. It does not appear
that defendant fails to impose grooming standards for female employees; thus in this respect each sex is treated equally. Nor is it contended that defendant is employing grooming standards as a guise to justify refusing to employ males. What the defendant does require is that plaintiff conform to standards of appearance which the defendant feels are necessary to the conduct of his business. It is not unreasonable for an employer to expect differences in grooming between men and women and such expectations are not indicative of sexual discrimination. . . . (I)f it be mandated that men must be allowed to wear shoulder length hair despite employer disfavor, because the employer allows women to wear hair that length, then it must logically follow that men, if they choose, could not be prevented by the employer from wearing dresses to work if the employer permitted women to wear dresses. . . . Continuing the logical development of plaintiff’s proposition, it would not be at all illogical to include lipstick, eyeshadow, earrings, and other items of typical female attire among the items which an employer would be powerless to restrict to female attire and bedeckment. It would be patently ridiculous to presume that Congress ever intended such result, yet if plaintiff’s interpretation of the Act be accepted, then it must follow that such extremes in behavior are also included within the coverage of the Act. . . . We should not, under the guise of individual rights, coerce employers to conform their practices to the demands of those few who affect practices which are alien to prevailing societal norms (emphasis added).65
A divided Fifth Circuit panel reversed and remanded. Circuit Judge Minor Wisdom did not directly respond to the district court’s description of the ostensibly absurd consequences of Willingham’s position. But Judge Wisdom made clear that his view of Title VII’s scope was closer to Willingham’s position than the district court’s.
Wisdom reasoned that since an amendment to restrict the scope of section 703 of the Civil Rights Act of 1964 to discriminatory employment practices based “solely on sex” had been rejected, the equal access
and equal opportunity goals of Title VII extend to “all differences in the treatment of men and women resulting from sex stereotypes.”66 Quoting Sprogis, Wisdom stated, “section 703 was intended ‘to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.'”67
Wisdom framed the issue as whether sex stereotyping adversely affecting less than the entire protected class (all men or all women) could be actionable. He cited with approval Phillips v. Martin Marietta Corp., 68 which found discriminatory a company policy that adversely affected only women with pre-school age children, and Sprogis, which disapproved a requirement that adversely affected only married stewardesses.69
Applying this reasoning to Willingham’s claim, Wisdom held that Macon’s grooming code, although it adversely affected only long-haired males, impermissibly discriminated between applicants on the basis of a sex stereotype. He remanded the case to the district court for a determination whether short hair for males was a BFOQ.70
In an en banc decision by Circuit Judge Simpson, the Fifth Circuit vacated Wisdom’s decision and affirmed Bootle’s ruling.71 The court’s opinion focused on the legislative history contemporaneous to the Civil Rights Act of 1964. Although the court found the legislative history inconclusive, it inferred that absent more extensive consideration, Congress could not have intended Title VII to entail the “significant and sweeping implications” that would result from the inclusion of “all sexual distinctions in its prohibition of discrimination.”72 Rather, the court concluded, Congress merely intended to “guarantee equal job opportunity for males and females.”73 This narrow objective would be secured by barring discrimination based on immutable characteristics, in much the same way that race and national origin discrimination laws function. The court saw Phillips and Sprogis as analogous to discrimination cases involving immutable characteristics, but viewed Willingham’s claim as mere interference with an employer’s legitimate business judgment:
(A)n employer cannot have one hiring policy for men and another for women if the distinction is based on some fundamental right. . . . (B) ut . . . a line must be drawn between distinctions grounded on such fundamental rights as the right to have children (Phillips) or to marry (Sprogis) and those interfering with the manner in which an employer exercises his judgment as to the way to operate a business. Hair length is not immutable . . . If the employee objects to the grooming code he has the right to reject it by looking elsewhere for employment, or alternatively he may choose to subordinate his preference by accepting the code along with the job. . . . (D)istinctions in employment practices between men
and women on the basis of something other than immutable or protected characteristics do not inhibit employment opportunity in violation of (42 U.S.C. 2000e-2(a)).”74
2) Transsesuxals and Title VII
Another source for determining how federal courts have handled issues of gender expression under Title VII is the body of case law dealing specifically with transsexuals. To date, federal courts have uniformly
held that transsexual people are not protected under Title VII75’s prohibition of sex discrimination, on the ground that “sex” was not intended to include transsexualism.76 The first reported decision in this area is EEOC Decision No. 75-030. 77 The Charging Party had been employed by the respondent as a male elementary school music teacher since 1957. In 1971, the CP underwent sex reassignment surgery. Returning to work as a man, the CP gave notice that beginning with the next school term she would begin living and teaching as a woman. Efforts to negotiate a reasonable accommodation failed. After
forcing the CP to undergo two psychiatric evaluations, the respondent offered a one-year contract to teach on an elective basis in high school, provided the CP resigned, relinquished her tenure rights, and obtained a new teaching certificate as a woman. The CP refused, and was dismissed. The CP filed an EEOC complaint alleging sex discrimination in violation of Title VII.
The EEOC disallowed the claim, finding that:
(CP) does not allege, and the record in the instant case provides no evidence, that (CP) was treated disparately . . . on the basis of sex. There is no evidence of record, for example, that different standards
of incapacity or unfitness have been utilized . . . for male and female teachers. There is no evidence that Respondent ever employed a similarly situated person of the opposite gender of (CP), i.e., a female who underwent sex reassignment. In addition, (CP) does not allege, and there is no evidence to indicate,
that discrimination against individuals having sex reassignment operations has a significant disproportionate impact upon either the male or female gender. . . . Finally, (CP) does not allege, and there is no evidence to indicate, that (CP) would have been suspended or required to undergo psychiatric examinations had (CP) remained a male or had (CP) always been a female. There is no further evidence of record which would lead us to conclude that (CP) has alleged a case of (sex) discrimination, rather than a case of possible discrimination because of having undergone a particular operation. . . . (W)e find nothing in the legislative history of Title VII to indicate that such claims were intended to be covered by Title VII. Absent evidence of a Congressional intent to the contrary, we interpret the phrase “discrimination because of sex,” in accordance with its plain meaning.78
The CP subsequently filed suit under Title VII. The district court gave more details about the facts of the case; in particular, it noted that the reason given for discharge was that the CP’s “presence in the classroom” created a risk of “psychological harm to the students.” The court’s analysis, and the result, were identical to that of the EEOC.79
Holloway v. Arthur Andersen & Co.80 is the first Title VII case involving transsexualism to reach a federal appellate court. In subsequent decisions, the courts have adopted and applied the reasoning in Holloway without further analysis.
Robert Holloway began working for Arthur Andersen & Co. in 1969, and was promoted to Head Multilith Operator early in 1974. He then informed his supervisor that he was undergoing hormone treatments in preparation for gender reassignment. It is not clear when or to what extent Holloway engaged in cross-gendered expression on the job. His former supervisor noted Holloway’s “transitional appearance (red lipstick and nail polish, hairstyle, jewelry and clothing),” but also remarked that Holloway used the men’s restroom.81 Holloway’s mid-year review resulted in a raise, but a company official suggested he would be happier elsewhere. In November 1974, Arthur Andersen granted Holloway’s request that personnel
records be amended to reflect her new name, Ramona Holloway. Holloway was then fired, ostensibly because of her “disruptive and embarrassing” “dress, appearance and manner,” id., not because of her transsexualism.
Holloway sued under Title VII, and the district court dismissed the claim for lack of jurisdiction, holding that “sex” does not encompass transsexualism. A Ninth Circuit panel affirmed, rejecting Holloway’s argument that the term “sex” in Title VII includes gender discrimination. The court held that “Congress has not shown any intent other than to restrict the term ‘sex’ to its traditional meaning.”82 In support, the court noted the defeat of attempts during the 94th and 95th Congresses to broaden Title VII to cover sexual preference and legislative history associated with the 1972 Amendments to Title VII, and contemporaneous caselaw, suggesting that Congress’ intent was “to remedy the economic deprivation of women as a class.”83 The court also rejected Holloway’s equal protection argument, holding that transsexuals do not constitute a suspect class, and the “traditional” interpretation of the term “sex” in Title VII survives rational-basis review.84
In Sommers v. Budget Marketing, Inc.85, Audra Sommers, a pre- or perhaps non-operative transsexual, was fired by Budget Marketing, Inc. two days after it hired her as a clerical worker. Apparently Sommers had some incongruously gendered physical characteristics, and Budget’s normal office routine was disrupted when women among the staff discovered this and objected to Sommers’ use of the women’s restroom. Sommers’ amended complaint alleged discriminatory discharge because of her “status as a female with the anatomical body of a male.” On Budget’s motion to dismiss, the district court entered summary judgment against Sommers. The Eight Circuit affirmed in a brief per curiam opinion. It held that the term “sex” in Title VII should be given its plain meaning absent clear Congressional intent to the contrary, the major thrust of the amendment adding the term “sex” to Title VII was to provide equal opportunities for women and the defeat of attempts during the 94th and 95th Congresses to broaden Title VII to cover sexual preference indicates that “sex” should be given its traditional meaning, rather than being broadly construed.86
One might suppose that a post-operative transsexual plaintiff would occupy a better position than a pre-operative transsexual or non-operative transgendered person in a Title VII action alleging sex discrimination. Many post-operative transsexuals appear unremarkable and meet applicable legal standards for membership in the reassigned sex (e.g., anatomical similarity to, and ability to engage in sexual relations as a member of, the reassigned sex).
Ulane v. Eastern Airlines, Inc.87 was the first federal appellate case examining discrimination against a post-operative transsexual. Kenneth Ulane served in the Army for four years as a pilot in Vietnam and earned the Air Medal with eight clusters. After his discharge in 1968 he went to work for Eastern Airlines. He progressed from Second to First Officer, served as a flight instructor, and logged over 8,000 flight hours.88 Ulane underwent sex reassign ment surgery in 1980 and was flight-recertified as female by the FAA. When Karen Ulane attempted to return to work, Eastern Airlines fired her.89
The district court ruled that Title VII covered Ulane’s sex discrimination claim, but a Seventh Circuit panel reversed, dismissing Ulane’s claim for lack of jurisdiction. As Wood’s opinion uncharitably put it, “even if one believes that a woman can be so easily created from what remains of a man, that does not decide this case. . . . (I)f Eastern did discriminate against Ulane, it was not because she is female, but
because Ulane is a transsexual a biological male who takes female hormones, cross-dresses, and has surgically altered parts of her body to make it appear to be female.”90
The district court had ruled that because sex involves not just chromosomes but complex social and psychological factors, the term could cover “sexual identity” and thus protect Ulane.91 In the absence of contrary legislative intent, the district court construed the statute liberally to rule that Ulane was covered. In contrast, Circuit Judge Wood reasoned that the absence of legislative history on the subject
precluded the district court’s expansive definition of sex. The district court had distinguished transsexuals from homosexuals and transvestites whom it conceded are unprotected by Title VII on the basis of transsexuals’ cross-gendered sexual identity. Wood, however, saw homosexuals, transvestites and transsexuals as peas in the same pod for purposes of Title VII. He approvingly cited Sommers (transsexualism not within Title VII), DeSantis v. Pac. Telephone & Telegraph Co., 608 F.2d 327 (9th Cir. 1979) (sexual preference not within Title VII), Smith (same), and Voyles v. Ralph K. Davies Medical Center, 403 F. Supp. 456 (N.D. Cal. 1975), aff’d 570 F.2d 354 (1978) (transsexualism not within Title VII) (discussed infra), and reasoned that since neither homosexuals, transvestites, nor transsexuals had been considered by Congress, none should be included within the meaning of sex:
Had Congress intended more [than the traditional concept of sex], surely the legislative history would have at least mentioned its intended broad coverage of homosexuals, transvestites, or transsexuals, and would no doubt have sparked an interesting debate. There is not the slightest suggestion in the legislative record to support an all-encompassing interpretation.92
In addition, Wood noted the failure of attempts to amend Title VII to cover homosexuals. Conceding that those failed attempts did not seek to protect transsexuals, Wood stated that nevertheless they confirmed a narrow reading of the meaning of “sex,” implying that Congress did not intend to protect transsexuals. Finally, Wood stated that Congress must be presumed to have been aware that contemporaneously with the failed attempts to amend Title VII, federal courts had issued several
decisions rejecting Title VII claims by transsexuals.93 Wood did not discuss Ulane’s appearance, style of dress, or behavior vis a vis Eastern Airlines’ other female, or male, pilots.
Federal district court decisions except for James v. Ranch Mart Hardware, 66 FEP Cases 1338 (D. Kan. 1994), discussed infra have not strayed far from Holloway, Sommers, and Ulane. None have examined the implications of the Supreme Court plurality’s statements in Price Waterhouse.
In Voyles v. Ralph K. Davies Medical Center,94 Charles Voyles, Jr. worked for the Ralph K. Davies Medical Center as a hemodialysis technician. He told the personnel director that he intended to undergo sex reassignment surgery, and was fired due to the “potentially adverse effect on both the patients . . . and on [Voyles’] co-workers . . . .”95 Voyles sued, alleging his termination violated Title VII. The district court granted defendant’s motion to dismiss, noting that Title VII says “sex,” not “change of sex.”96 The court noted the lack of legislative history or case law suggesting that “sex” discrimination was meant to include transsexual discrimination. Citing Baker, the court noted that the specific objective of Title VII’s anti-sex discrimination provisions was to end the economic deprivation of women.97
In Powell v. Read’s, Inc.,98 Reads, Inc. fired Sharon Powell, a pre-operative transsexual engaged in the trial-living period, on her first day on the job as a waitress, after a prior acquaintance reported that Powell was a man. Powell sued under Title VII. The U.S. District Court in Baltimore granted Reads’s motion to dismiss, citing Voyles, Grossman and Smith. The court discussed neither Powell’s appearance nor her behavior. The court found that Powell had been fired not because of her sex, but because of her change of sex, and noted the absence of supporting legislative history contemporaneous to the 1964 Civil Rights Act.99
In Terry v. EEOC100, Marc’s Big Boy Corp. refused to hire Barbara Terry, a transitioning transsexual, as a waitress. The district court dismissed Terry’s Title VII and equal protection claims. The court cited with
little additional discussion Holloway, Powell, and Voyles, treating them as controlling precedent for cases involving pre-operative transsexuals. The court concluded, “[t]he law does not protect males dressed or acting as females and vice versa.”101
Doe v.U.S. Postal Service 102 involved discrimination based on mere knowledge of a prospective employee’s transsexualism. USPS offered Does a six-month job as a clerk typist with the post office, which Doe accepted. Before beginning work, Doe gave notice that he planned to undergo gender
reassignment, and asked to be allowed to work as a woman. Lower level supervisory personnel agreed, but higher level management refused and withdrew the job offer, despite Doe’s subsequent proposal that he work the entire six-month term as a man. Citing Ulane, Sommers and Holloway, the district court dismissed Doe’s Title VII claim.
In Dobre v. National Railroad Passenger Corp. (Amtrak) 103, Dobre began working for Amtrak as a man in 1989. After several months on the job, he gave notice to Amtrak that he was beginning hormone treatments to prepare for gender reassignment. Amtrak thereafter allegedly refused to allow Dobre to dress as a female without a doctor’s note, required her to dress as a man, refused to refer to her as female, refused her access to the women’s restroom, and moved her desk out of public view. Dobre resigned and sued, alleging, inter alia, that Amtrak discriminated against her “solely because of [her] female gender” in violation of Title VII.
The district court granted Amtrak’s Rule 12(b)(6) motion to dismiss. The court, applying Holloway, held that Title VII uses the term “sex,” which refers to “distinguishing biological or anatomical characteristics,” not the term “gender,” which the court took to include sexual identity.104 The court noted that it had found no cases “broadening” Title VII to bar job discrimination against a male who wants to become a female. Citing Ulane, Sommers and Holloway, the court held that Congress did not
intend Title VII to protect transsexuals from discrimination based on their transsexualism.105 Comparing Dobre’s complaint to that in Grossman, the court stated:
the acts of discrimination alleged . . . were not due to stereotypic concepts about a woman’s ability to perform a job nor were they due to a condition common to women alone. If the plaintiff was discriminated against at all, it was because she was perceived as a male who wanted to become a female.106
In James v. Ranch Mart Hardware 107, the employer fired James under disputed circumstances after James gave notice that he wished to begin working as a woman. The district court dismissed James’ subsequent Title VII claims for discrimination based on transsexualism, citing Holloway, Ulane and Sommers, but allowed James’ claim alleging that he was discriminated against as a male transsexual because Ranch Mart Hardware would have allowed a female transsexual to transition.108 James utilized the opening left by the EEOC in Decision No. 75-030 alleging disparate treatment where an employer allows a similarly-situated transsexual of opposite gender to transition. The court later granted summary judgment to Ranch Mart Hardware on the claim after James failed to adduce supporting evidence.109
c) Federal Education Law
In 1997, a federal district court in New York held that a transsexual woman could proceed with a sexual harassment suit against New York University under Title IX of the Education Amendments Act
(prohibiting sex discrimination in public education).110 The university moved for
summary judgement on the ground that the plaintiff “is in fact a male-to-female transsexual who, at the time of the professor’s alleged conduct, was in the process of becoming a female.”111 The court
rejected this argument: “The simple facts are . . . that Professor Eisen was engaged in indefensible sexual conduct directed at plaintiff which caused her to suffer distress and ultimately forced her out of the doctoral program in her chosen field. There is no conceivable reason why such conduct should be rewarded with legal pardon just because, unbeknownst to Professor Eisen and everyone else at the university, plaintiff was not a biological female.”112 The court distinguished Title VII case law addressing employment discrimination, stating that “all of [the cases on this issue] stand for the entirely different proposition that Title VII, and hence Title IX, does not prohibit expressing disapproval of conduct involved in the transformation from one gender to another.”113
d) Other Federal Legislation
On April 29,1999, Gay & Lesbian Advocates & Defenders (GLAD) filed suit against Park West Bank & Trust Company on behalf of Lucas Rosa, a transgendered individual who was denied a loan application by a bank teller because Rosa did not appear dressed in traditional male clothing.114
Plaintiff Rosa, a biological male, often dresses in women’s clothing and passes for female. The suit stems from an incident on July 21, 1998 when Rosa, dressed in female clothing including earrings, entered West Bank, in Holyoke, Massachusetts and requested a loan application. A West Bank loan officer asked Rosa to produce three pieces of identification. Rosa complied, producing three pieces of photo identification, one in which Rosa looked like a man, one in which Rosa looked like a woman, and
one in which Rosa’s gender was indeterminate. The bank teller then refused to provide Rosa with a loan application saying she would not provide one until Rosa went home, changed clothing and appeared in what the teller considered to be usual clothing for a man.
The suit charges that West Bank engaged in impermissible sex stereotyping in violation of the federal Equal Credit Opportunity Act that forbids sex discrimination in lending. It furthers charges the bank with discrimination under state law that forbids discrimination in credit and in places of public accommodation on the basis of sex, sexual orientation and perceived sexual orientation.115
D. Education Component
This section should discuss the kind of climate we seek to create, not only to build a bridge to the non-LGBT community, but to mend fences between the LGB and T communities.
The authors hope that this document will provide civil rights activists with the information they need in order to effectively and rationally advocate for laws that protect individuals from discrimination based
on gender identity. This document is intended to start a conversation about these issues, and should not be construed as a definitive statement regarding the best strategy to obtain broad civil rights protections. Indeed, this paper should be utilized by civil rights activists in the manner that is best suited for their particular communities.
The authors of this paper acknowledge that they liberally paraphrased the work of the following individuals: Shannon Minter, Staff Attorney, National Center for Lesbian Rights; Jennifer Levi and Mary Bonauto of Gay and Lesbian Advocates and Defenders; Paisley Currah, Department of Political Science, Brooklyn College; and Dana Priesing, Esq., Gender Public Advocacy Coalition. The authors are grateful for their research and advocacy in this area.
1. International Conference on Transgender Law & Employment Policy, Inc. ICTLEP is the only national legal organization for transgendered people. Published proceedings from ICTLEP’s annual conference, covering a wide range of legal issues for transgendered people, are available upon request. To become a member, order written materials, or obtain more information about ICTLEP, contact Sharon Stuart at:
2. American Educational Gender Information Service (AEGIS), PO Box 33724, Decatur, GA 30033. E-Mail: aegis@…, http://www.gender.org/aegis
3. It’s Time, America!, P.O. Box 65, Kensington, MD 20895, http://www.gender.org/ita/
4. GenderPac Riki Wilchins, Executive Director, 274 West 11th Street, Suite 4R, New York, NY 10014
5. Transgender Health Action Coalition (New Jersey), Contact: Ben Singer, Bensinge@…
6. Metropolitan Gender Network of New York City, Contact: Chelsea Goodwin, uravampire@…
7. The New York Association for Gender Rights Advocacy, Contact: Paisley Currah, pcurrah@…
8. SPED (Colorado & Wyoming), Contact: Dianna Cicotello, DAINNA@…
9. National Center for Lesbian Rights, A Legal Guide to Child Custody and Selected Family Law Issues for Transgendered Parents (NCLR 1997) is available from NCLR ($20). NCLR, 870 Market Street, Suite 570, San Francisco, CA 94102; (415) 392-6257
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Who are the authors of this paper? They aren’t credited on this posting. I’m surprised that the terms “mute” is used, especially in Maryland which has a large and politically active Deaf community. The word “mute” is considered to be a derogatory term by Deaf people.
Muteness was the language used in the statute at the time. Take it up with the Maryland legislature.
Why isn’t the author of this paper credited?
She is, you clearly didn’t click through the link.
[…] this is not a new or novel theory. Advocates have argued for years that discrimination against transgender people is, in fact, sex discrimination. The Equal […]