Transforming Transsexual and Transgender Rights

Abstract

Transsexual and transgendered individuals receive only sporadic and non-comprehensive protection against discrimination in employment. Most efforts to extend that protection, through avenues of protection as a disability or enacting legislation extending protected class status, have been unsuccessful or incomplete. More successful in recent years has been to extend protection against sexual stereotyping to transsexual and transgendered individuals. Least successful has been the argument that discrimination against transsexual and transgendered individuals is itself prohibited sex discrimination. This article argues that in fact the structure to protect transsexual and transgendered individuals from discrimination is already in place through federal and state statutes prohibiting discrimination on the basis of sex, because this discrimination is classic sex discrimination. Based on common understanding of the term sex, medical definitions of sex and gender identity, and legal definitions of that term and other grounds of prohibited discrimination, this article argues that the term sex should be defined more broadly than courts have seen fit to do with respect to sexual minorities, to extend protection not only on biological status but gender-linked traits, including gender identity.

JEL Classification: D63, J16, K39