Lipuma, Frank

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Psychosexual Difference between Gender and Sexual Identities: Courts Construct the Title VII Female, 18 J. Marshall L. Rev. 783 (1985)

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UIC Law Review Volume 18 Issue 3 Article 10 Spring 1985 Psychosexual Difference between Gender and Sexual Identities: Courts Construct the Title VII Female, 18 J. Marshall L. Rev. 783 (1985) Frank Lipuma Follow this and additional works at: https://repository.law.uic.edu/lawreview  Part of the Law and Gender Commons, and the Sexuality and the Law Commons Recommended Citation Frank Lipuma, Psychosexual Difference between Gender and Sexual Identities: Courts Construct the Title VII Female, 18 J. Marshall L. Rev. 783 (1985) https://repository.law.uic.edu/lawreview/vol18/iss3/10 This Comments is brought to you for free and open access by UIC Law Open Access Repository. It has been accepted for inclusion in UIC Law Review by an authorized administrator of UIC Law Open Access Repository. For more information, please contact repository@jmls.edu. RECENT DEVELOPMENTSPSYCHOSEXUAL DIFFERENCE BETWEENGENDER AND SEXUAL IDENTITIES:COURTS CONSTRUCT THE TITLEVII FEMALESince 1966, a year which marked legal acceptance of sex reas-signment surgery, society has witnessed significant clinical and di-agnostic advances to treat the gender dysphoric. 1 With the ability tocreate one sex from the anatomy of another, medical science hasobliged lawyers and courts to address issues of sexual identity, gen-der identity, and enforceable redress from employment discrimina-tion.2 Recently, employees claiming to have been wrongfullydischarged have demanded judicial recognition of unforeseen,emerging forms of sex-based discrimination. Notwithstanding theremedial nature of Title VII of the 1964 Civil Rights Act, mostcourts have defined "sex" according to the traditional notions of bi-ological sex.3Title VII proscribes unlawful employment practices in all con-ditions of employment because of an individual's "sex."'4 Specifi-1. Gender dysphoria, commonly referred to as transsexualism, is beingrecognized, accepted, and treated in increasing numbers. There are an esti-mated five thousand postoperative transsexuals and forty to fifty thousand pre-operative transsexuals in the United States. Kopka, The Legal Status of thePostoperative Transsexual, 1983 MED. TRIAL TECH. Q. 456, 469. It is also esti-mated that over one thousand sex conversions are performed annually onAmericans. Twardy, Medicolegal Aspects of Transsexualism, 1980 MED. TRIALTECH. Q. 249, 253.2. "Gender identity" is defined as one's mental perception of oneself as aman or a woman, and functions as one's intrinsic guideline to appropriate be-havior. "Sexual identity" is defined by the anatomic attributes of the individualas a man or a woman. See Stoller, A Contribution to the Study of Gender Iden-tity, 45 INT'L J. OF PSYCHOANAL. 220 (1964).3. Ulane v. Eastern Airlines, Inc., 742 F.2d 1081, 1086 (7th Cir. 1984), certdenied, 105 S. Ct. 2023 (1985); Sommers v. Budget Mktg., Inc., 667 F.2d 748, 750(8th Cir. 1982) (per curiam); Holloway v. Arthur Andersen & Co., 566 F.2d 659,662 (9th Cir. 1977); Powell v. Read's, Inc., 436 F. Supp. 369, 371 (D. Md. 1977);Grossman v. Bernards Township Bd. of Educ., 11 Fair Empl. Prac. Cas. (BNA)1196, 1199 (D.N.J. 1975), affd mern., 538 F.2d 319 (3d Cir.), cert. denied, 429 U.S.897 (1976); Voyles v. Ralph K. Davies Medical Center, 403 F. Supp. 456, 457(N.D. Cal. 1975), affd mem., 570 F.2d 354 (9th Cir. 1978).4. Title VII of the 1964 Civil Rights Act, as amended by the Equal Employ-ment Opportunity Act of 1972, provides:The John Marshall Law Reviewcally, this provision was enacted to remedy disparate treatmentbased upon stereotypical concepts of the sexes, conditions commonto only one sex, or status as related to sex. Because the language ofTitle VII is broadly phrased, it has warranted sweeping, reformativeinterpretations. In determining whether the sex-related factors ofgender dysphoria and sex reassignment invoke the protections ofthe "sex" provision, however, courts have been disinclined to ex-tend Title VII relief to the gender dysphoric. Clearly, whether thelegal sex of the gender dysphoric is the sex of the assumed genderrole, or even whether Title VII is viable based upon this sexual con-sideration, generates sensitive legal issues, and therefore calls forjudicial construction of the "Title VII female."Questions of sexual deviation frequently provoke inimical re-sponses. That matter cannot be corrected through the courts. TitleVII could conceivably be operated, however, to counteract "the neg-ative ostrich-like position"5 that exists in some employers towardstheir affected employees. The American Psychiatric Associationhas diagnosed transsexualism as a psychosexual disorder which fea-tures "a persistent sense of discomfort and inappropriateness aboutone's anatomic sex and a persistent wish to be rid of one's genitalsand to live as a member of the other sex."'6 The gender dysphoricsuffers, essentially, from a conflict between his gender identity andsexual identity, both of which are fundamental components of one'spersonality. Hence, the individual seeks to alter his or her ana-tomic, genital appearance in an effort to achieve harmony betweenmind and body. Such apparently drastic treatment is not capriciousor freakish; rather, sex reassignment is generally accepted as "a(a) It shall be an unlawful employment practice for an employer(1) to fail or refuse to hire or to discharge any individual, or other-wise to discriminate against any individual with respect to hiscompensation, terms, conditions, or privileges of employment, be-cause of such individual's race, color, religion, sex, or national ori-gin; or(2) to limit, segregate, or classify his employees or applicants for em-ployment in any way which would deprive or tend to deprive anyindividual of employment opportunities or otherwise adverselyaffect his status as an employee, because of such individual's race,color, religion, sex, or national origin.42 U.S.C. § 2000e-2(a). Because "sex" was added as a floor amendment one daybefore the House approved Title VII, there are no legislative hearings or de-bates on that significant word. See Developments in the Law-EmploymentDiscrimination and Title VII of the Civil Rights Act of 1964, 84 HARv. L. REv.1109, 1167 (1971).5. Ulane v. Eastern Airlines, Inc., 581 F. Supp. 821, 830 (N.D. Ill. 1983),rev'd, 742 F.2d 1081 (7th Cir. 1984), cert. denied, 105 S. Ct. 2023 (1985).6. AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICALMANUAL OF MENTAL DISORDERS 261-62 (3d ed. 1980).[Vol. 18:783The Title VII Femalemedical necessity."'7In determining the viability of Title VII in this context, courtshave been influenced by medical and psychiatric experts' opinionsconcerning a fitting definition of "sex." One of the primary inquir-ies focuses on the distinction between psychological sex and chro-mosomal sex. Surgical ablation or alteration of the patient'sgenitals changes the patient to assume the phenotype of the oppo-site sex. The procedure, however, does not change the patient'schromosomal sex. Many mental health doctors declare that psycho-logical sex, rather than chromosomal sex, is the single most impor-tant consideration in determining the social and legal sex of anindividual.8 Moreover, many courts have found that sex is not de-termined solely by physical attributes, such as chromosomes, butalso by other factors, such as external genitalia, hormonal balance,and social orientation.9In Richards v. United States Tennis Association,10 for instance,a postoperative, male-to-female transsexual was denied admittanceinto the women's division of the United States Open Tennis Tour-nament because she failed to pass the sex-chromatin test. The Rich-ards court held that the defendant's exclusive reliance on the sex-chromatin test violated New York's Human Rights Law becausechromosomal structure is not the sole factor involved in determin-ing an individual's sex. The court additionally found that when amale undergoes a sex conversion, society's "unfounded fears andmisconceptions... must give way to the overwhelming medical ev-idence that this person is now female."" Therefore, when an indi-vidual's gender identity and physical characteristics are no longerdiscordant, but are harmonized through surgery, the genderdysphoric's "sex" should be legally recognized as that of the as-sumed sex role. Most courts, however, in determining the viabilityof Title VII to gender dysphorics, have reasoned that sexual genderis a simple matter of immutable characteristics, specifically focusingon chromosomal composition.127. Wein & Remmers, Employment Protection and Gender Dysphoria:Legal Definitions of Unequal Treatment on the Basis of Sex and Disability, 30HASTiNGS L.J. 1075, 1081 (1979).8. Comment, The Law and Transsexualism: A Faltering Response to aConceptual Dilemma, 7 CONN. L. REV. 288, 290-92 (1975).9. See M.T. v. J.T., 140 N.J. Super. 77, 83, 355 A.2d 204, 210, cert denied, 71N.J. 345, 364 A.2d 1076 (1976); Anonymous v. Mellon, 91 Misc. 2d 375, 377, 398N.Y.S.2d 99, 101 (Sup. Ct. 1977); In re Anonymous, 57 Misc. 2d 813, 817, 293N.Y.S.2d 834, 838 (Civ. Ct. 1968).10. 93 Misc. 2d 713, 400 N.Y.S.2d 267 (Sup. Ct. 1977).11. Id. at 717, 400 N.Y.S.2d at 272.12. For a list of cases which have confronted the issue, see supra note 3.The Holloway court did concede one key point, however, when it observed that"transsexuals claiming discrimination because of their sex, male or female,would clearly state a cause of action under Title VII." 566 F.2d at 664.1985]The John Marshall Law ReviewOne district court rejected that analysis and theorized that sex-based discrimination emerged in matters concerning dischargebased on gender identity and based on sex reassignment. In depart-ing from conventional judicial reasoning regarding genderdysphoria and Title VII, the United States District Court for theNorthern District of Illinois, in Ulane v. Eastern Airlines, Inc.,13found that a postoperative, male-to-female gender dysphoric hadbeen discriminated against based on her status as a transsexual andas a female. Although First Officer Ulane had received a medicalcertificate of physical and mental fitness from the Federal AviationAdministration following the sex conversion, Eastern dischargedUlane from employment. The district court was persuaded that butfor being a transsexual and but for having had sex reassignment,the plaintiff would not have been discharged. The court addition-ally held that Title VII coverage should be extended because theterm "sex" literally and scientifically applied to transsexuals.14Three federal circuit courts, including the Seventh Circuitwhich reversed Ulane on appeal, have published opinions holdingthat the term "sex" in Title VII does not provide relief for transsex-uals.15 In denying a remedy, the courts' reasoning has been consis-tent and analytical. These courts have concluded that "sex" shouldbe given its "plain meaning," and thus be limited to its traditionalnotions. The district court in Ulane, however, found such a con-struction inconsistent with Title VII's broad language, remedialpurpose, and legislative history.Although not yet adopted in the gender dysphoric context,there is a definite trend among courts to construe Title VII in abroad and liberal manner. For example, the Title VII prohibition ofsex-based discrimination in employment was successfully invokedby a male who was discharged for resisting the homosexual ad-vances of his supervisor.16 Title VII has also been held operativebased upon other sex-related factors, including marriage,17 bearing13. 581 F. Supp. 821, 839-40 (N.D. Ill. 1983), rev'd, 742 F.2d 1081 (7th Cir.1984), cert denied, 105 S. Ct. 2023 (1985).14. Ulane, 581 F. Supp. at 825. This holding was based on the court's findingthat "sex is not a cut-and-dried matter of chromosomes," but also triggers psy-chological and social considerations. Id. For instance, Judge Grady was moti-vated in part by an Illinois statute which authorized the issuance of a change ofsex designation, subsequent to sex reassignment, on birth certificates. Id. at824. See ILL. REv. STAT. ch. 111-1/2, § 73-17 (1981). The court reasoned that thestatute manifested a strong social policy in favor of protecting the integrity oftranssexuals. Ulane, 581 F. Supp. at 824.15. Uane, 742 F.2d at 1087; Sommers v. Budget Mktg., Inc., 667 F.2d 748,750(8th Cir. 1982) (per curiam); Holloway v. Arthur Andersen & Co., 566 F.2d 659,663 (9th Cir. 1977).16. Wright v. Methodist Youth Serv., Inc., 511 F. Supp. 307 (N.D. Ill. 1981).17. Sprogis v. United Air Lines, Inc., 444 F.2d 1194 (7th Cir.), cert denied,404 U.S. 991 (1971).[Vol. 18:783The Title VII Femaleor adopting children,' 8 and matters of sexual harassment.19 Cer-tainly, Congress did not specifically express an intention to pro-scribe discrimination of that nature when it passed Title VII. Somecourts have observed, however, that a liberal construction is consis-tent with the statute's broad language and wide-ranging remedialpurpose. Because Congress did not enumerate particular discrimi-natory practices and did not limit "sex" to certain classes of personsprotected, it must follow that Congress intended to define sex dis-crimination in the broadest possible terms.Those courts denying Title VII relief to gender dysphorics,however, reason that Congress did not intend to provide redress be-cause of various legislative bills which, if passed, would have ex-tended the protective purview of Title VII to matters of "affectionalor sexual preference." 20 Although Congress has explicitly declaredthat the sexual preference legislation operates to principally fash-ion a remedy for homosexuals, the federal circuit courts contendthat the defeated bills make the narrow interpretation of "sex"proper; consequently, transsexuals cannot recover under Title VII.In relying on legislation that would have extended Title VII redressto homosexuals to deny relief to transsexuals, the circuit courts'reasoning may derive from an unduly cautious, prescriptive stance.Discrimination against transsexuals, which is based on genderidentity, and discrimination against homosexuals, which is based onsexual practices, differ intrinsically. Moreover, when a court ap-proves of the analogy between the transsexual condition and thehomosexual condition, the transsexual's claim is doomed to defeatbecause courts have consistently applied the "plain meaning" ruleand have held that homosexuals are not protected by Title VII's"sex" provision. Because Congress has restricted the recent legisla-tion to matters of sexual preferences, and because the transsexualcondition is not similar to that of the homosexual, courts whichhave relied on those considerations may have misconstrued TitleVII's legislative purpose.Giving "sex" its common meaning, one would probably definethe term based on the traditional considerations of physical appear-ance. This construction has been adopted by a majority of courtsand has accordingly provided for a consistent denial of relief to thegender dysphoric under Title VII. Two opinions have indicated that18. Sale v. Waverly-Shell Rock Bd. of Educ., 390 F. Supp. 784 (N.D. Iowa1975).19. Barnes v. Costle, 561 F.2d 983 (D.C. Cir. 1977).20. The term "affectional or sexual preference" means "male or female ho-mosexuality, heterosexuality, and bisexuality by orientation or practice, by andbetween consenting adults." Civil Rights Act Amendments of 1981: Hearing onHR 1454 Before the Subcomm. on Employment Opportunities of the HouseComm. on Education and Labor, 97th Cong., 2d Sess. 1-2 (1982).1985]The John Marshall Law Reviewbecause Title VII was implemented to give greater protection to allindividuals against sex-based discrimination in employment, "sex"emerges as a much broader term. The statute, therefore, shouldfunction to prohibit discrimination where there is a causal connec-tion to any sex-related factor, and should not simply be dependentupon whether an individual happens to be recognized as a female ora male.21 The minority opinions insist that Title VII's remedial pur-pose can only be effected when courts read the statute liberally and,consequently, give "sex" its manifest denotation: discriminationbased upon any sexual consideration.Frank Lipuma21. See Holloway v. Arthur Andersen & Co., 566 F.2d 659, 664 (9th Cir.1977) (Goodwin, J., dissenting); Ulane v. Eastern Airlines, Inc., 581 F. Supp. 821,825 (N.D. Ill. 1983), rev'd, 742 F.2d 1081 (7th Cir. 1984), cert denied, 105 S. Ct.2023 (1985).[Vol. 18:783

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Psychosexual Difference between Gender and Sexual Identities: Courts Construct the Title VII Female, 18 J. Marshall L. Rev. 783 (1985)

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