Gender Typing in Stereo: The Transgender Dilemma in Employment Discrimination

Abstract

This article asks whether a gender stereotyping theory of sex discrimination can support employment discrimination claims brought by transgendered individuals under Title VII of the Civil Rights Act of 1964. To illustrate the significance of this issue, the article first discusses a fictional case that is a composite of the facts of several older Title VII cases, all of which resulted in judgments adverse to transgendered plaintiffs. The article then examines the history of gender stereotyping theory in the federal courts. Although courts in the past have appeared ambivalent and even hostile toward the theory, recently more courts have begun equating gender stereotyping with sex discrimination, even in cases brought by gay and lesbian plaintiffs. These cases suggest that transgendered plaintiffs may also be capable of obtaining favorable judgments through the use of this theory. This article concludes, however, that the theory of gender stereotyping emerging in recent cases will not be availing to transgendered plaintiffs for the following reasons. First, federal courts have not yet questioned the idea that one's gender is the same as one's biological sex. To use the gender stereotyping theory of sex discrimination, then, transgendered workers must allege discrimination based on their chromosomal sex and not on the basis of the gender they believe themselves to be. Second, despite emerging protection against gender stereotyping, courts continue to affirm employers' prerogative to establish dress codes that differentiate between male and female workers and restroom policies that segregate workers based on biological sex. As a theory of sex discrimination, then, gender stereotyping is qualified in precisely the ways that would otherwise render it supportive of transgendered workers' employment discrimination claims.

Keywords: Discrimination, employment, sex, gender, stereotyping, transgender

JEL Classification: J7