Titles VII and IX

librarising posted this morning concerning the Fourth circuit ruling that transgender students are indeed covered by Title IX in the Virginia case of Grimm v. Gloucester County School Board.

Today’s fourth circuit decision is a vindication for Gavin and a reinforcement of the Department of Education’s policy. With this decision, we hope that schools and legislators will finally get the message that excluding transgender kids from the restrooms is unlawful sex discrimination.

--Joshua Block, ACLU

The uncontroverted facts before the district court demonstrate that as a result of the Board’s restroom policy, [Grimm] experiences daily psychological harm that puts him at risk for long-term psychological harm.

--Judge Andre Davis

Medical and child psychology experts have consistently told courts that recognizing transgender students’ identity is critical to their mental wellbeing. In a brief support Grimm’s lawsuit, a number of leading medical societies in the study of transgender health wrote: “For transgender students, being in a school that affirms and supports their gender identity is critical to ensuring that they too can experience adolescence in a healthy and constructive manner.

A school that fails to support its transgender students risks severely hampering their development and long-term wellbeing,” the brief continued. “Refusing to respect and affirm a transgender student’s gender identity communicates a clear, negative message: there is something wrong with the student that warrants this unequal treatment."

This follows a ruling in March in federal district court in Connecticut that "employment discrimination on the basis of transgender identity is discrimination “because of sex” and therefore violates Title VII." In the case Fabian v. Hospital of Central Connecticut the Court denied the Hospital's motion for summary judgment using the claim that Title IX did not apply to gender identity.

In that case Dr. Deborah Fabian claimed that she was "very nearly hired" by the hospital as an on-call orthopedic surgeon until during an interview which she viewed as a formality she disclosed that she would be transitioning from male to female. she was subsequently denied employment.

Judge Stefan Underhill ruled that Dr. Fabian's case could proceed could proceed under Title IX of the Civil Rights Act.

In his decision, Underhill explained that “sex” discrimination in federal law is broader than “discrimination against women because they are women and ... men because they are men.” It includes discrimination based on the characteristics by which people are categorized as male or female.

Backed by precedent, Underhill determined that sex discrimination includes discrimination on the basis of gender stereotyping and gender identity.

That notion is not closely examined in any of the cases, but it is mistaken. ‘Male or female’ is a relatively weak definition of ‘sex’ for the same reason that ‘A, B, AB, or O’ is a relatively weak definition of ‘blood type’: it is not a formulation of meaning, but a list of instances.

It might be an exhaustive list, or it might not be, but either way it says nothing about why or how the items in the list are instances of the same thing; and the word ‘sex’ refers not just to the instances, but also to the ‘thing’ that the instances are instances of.

In some usages, the word ‘sex’ can indeed mean ‘male or female,’ but it can also mean the distinction between male and female, or the property or characteristic (or group of properties or characteristics) by which individuals may be so distinguished. Discrimination ‘because of sex,’ therefore, is not only discrimination because of maleness and discrimination because of femaleness, but also discrimination because of the distinction between male and female or discrimination because of the properties or characteristics by which individuals may be classified as male or female.

The judge cited historical references to support his contention that such broader understandings of sex date back as far as 1755, in Dr. Samuel Johnson’s dictionary of the English language, and he found a similarly broad understanding in dictionaries contemporary with the adoption of Title VII in the 1960s. Thus, even in the absence of direct evidence about what the drafters of the “sex” amendment thought in 1964, there is indirect evidence that a broader understanding of the word and concept then existed.

The judge also quoted a favorite hypothetical case put by proponents of coverage for gender identity discrimination: just as an employer who had no bias against Christians or Jews could be held to have discriminated because of religion if she discharged an employee for converting from one religion to the other, an employer who has no particular bias against men or women could be held to discriminate because of sex if he discharged an employee for transitioning from male to female. He insisted that no court would make the mistake of finding no discrimination because of religion in the case of the religious convert. “Because Christianity and Judaism are understand (sic) as examples of religions rather than the definition of religion itself,” he wrote, “discrimination against converts, or against those who practice either religion the ‘wrong’ way, is obviously discrimination ‘because of religion.’ Similarly, discrimination on the basis of gender stereotypes, or on the basis of being transgender, or intersex, or sexually indeterminate, constitutes discrimination on the basis of the properties or characteristics typically manifested in sum as male and female – and that discrimination is literally discrimination ‘because of sex.’”

While the Ninth, Sixth and Eleventh circuits, along with the Equal Employment Opportunity Commission, have each recognized that discrimination based on a person’s transgender identity constitutes sex discrimination, other circuits have ruled the opposite.

Such a split means the issue will likely reach the U.S. Supreme Court, which considers that as a factor when it decides which cases to hear, Professor Arthur Leonard of the New York School of Law told Legal Newsline.

I think we need a Supreme Court decision to set a national standard.
--Leonard

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