Sex discrimination as legal strategy

Sex discrimination demands particular kinds of behavior from one sex, but prohibits the same behavior from the other sex.[i] For example, wearing dresses is ok, but only for females; engaging in sexual relations with females is ok, but only for males. Legal prohibition against sex discrimination encompasses the social policing of both homosexuality[ii] and sex-role (or gender) non-conformity.

Instead of isolating gender non-conforming and gender dysphoric people as a disordered class of persons whose defining characteristic is their departure from normative sex role behavior or appearance, we should recognize enforcement of sex role limitations as universal violations of our human rights—even when they are supported by medical professionals.[iii],[iv],[v] Considering gender dysphoria on an individual level, as special kind of medical condition, evades examination of the oppressive psychological effects of mutually exclusive sex roles. This is particularly disturbing when the suggested medical treatment for gender dysphoria causes sterilization, infertility, and other physical complications.

Sex discrimination as legal strategy can be leveraged by anyone, not just female plaintiffs. It attacks a wide range of sex-role discrimination while simultaneously avoiding the pitfalls of both trivializing biological sex and reifying sex roles by privileging self-identified sex (or gender identity) over biological sex.

The 6th Circuit[vi], the 9th Circuit[vii], and the 11th Circuit[viii] Federal Courts of Appeals, and the EEOC[ix] have all issued decisions affirming the use of a Title VII sex discrimination theory to protect people who understand themselves as transsexual and/or transgender:[x]

“…[a] complaint of discrimination based on gender identity, change of sex, and/or transgender status is cognizable under Title VII…”

This is the most effective and sustainable legal strategy with the strongest precedent.[xi] It protects all gender non-conforming people without forcing them to claim a special kind of “gender identity,” that they are suffering from a special medical condition, or that they are members of a special group called “trans.” Sex discrimination as legal strategy can be used to protect females, gays and lesbians, and gender non-conforming people including transsexuals from the tyranny of compulsory heteronormativity– the principle evil we aim to deconstruct.


[i]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.”

Price Waterhouse v. Hopkins (490 U.S. 228, 251). http://www.law.cornell.edu/supct/html/historics/USSC_CR_0490_0228_ZO.html

[ii] Onacle v. Sundowner Offshore Services (523 U.S. 75). http://www.law.cornell.edu/supct/html/96-568.ZO.html

[iii] See the History of Psychiatry & Homosexuality: http://www.aglp.org/gap/1_history/

[iv] See also the history of lobotomies: “The lobotomy was first performed on humans in the 1890s. About half a century later, it was being touted by some as a miracle cure for mental illness, and its use became widespread; during its heyday in the 1940s and ’50s, the lobotomy was performed on some 40,000 patients in the United States, and on around 10,000 in Western Europe. The procedure became popular because there was no alternative, and because it was seen to alleviate several social crises: overcrowding in psychiatric institutions, and the increasing cost of caring for mentally ill patients.”

http://scienceblogs.com/neurophilosophy/2007/07/24/inventing-the-lobotomy/

[v] See also: Psychiatric Misadventures by Paul R. McHugh. http://www.lhup.edu/~dsimanek/mchugh.htm

[vi] Smith v. City of Salem, Ohio, 378 F. 3d 566 – Court of Appeals, 6th Circuit 2004. http://scholar.google.com/scholar_case?case=988234023344471066&hl=en&as_sdt=2&as_vis=1&oi=scholarr

[vii] Schwenk v. Hartford, 204 F. 3d 1187 – Court of Appeals, 9th Circuit 2000. http://caselaw.findlaw.com/us-9th-circuit/1452083.html

[viii] Glenn v. Brumby, 663 F. 3d 1312 – Court of Appeals, 11th Circuit 2011. http://scholar.google.com/scholar_case?case=16555670383261317325&hl=en&as_sdt=2&as_vis=1&oi=scholarr

[xi] Yes, I am arguing in favor of formal legal equality (exception: physical and/or biological sex difference)! I would much rather be forced to wear a unisex uniform at work–such as khaki pants and white collared shirt– than to be subjected to awful the dress code that Darlene Jespersen was in this case:

Jespersen v. Harrah’s Operating Co., Inc., 444 F. 3d 1104 – Court of Appeals, 9th Circuit 2006. http://scholar.google.com/scholar_case?case=13073805400077839878&hl=en&as_sdt=2&as_vis=1&oi=scholarr

Harrah’s policy required all women to wear heavy makeup applied in exactly the same way every day, to match a photograph held by the supervisor.

On April 14, 2006, in a 7-4 ruling, an en banc panel of the Ninth Circuit Court of Appeals upheld the validity of the Casino’s grooming policy. The court said that while some sex-differentiated workplace rules may be discriminatory, in this case, the grooming standards did not reinforce negative stereotypes about women and the plaintiff in this case had failed to present evidence that the policy posed greater burdens for women than for men. Two judges filed dissenting opinions. With regard to the sex stereotyping argument, Judge Harry Pregerson disagreed with the majority, stating that the makeup requirement was based on “a cultural assumption – and gender-based stereotype – that women’s faces are incomplete, unattractive, or unprofessional without full makeup.”

http://www.nclrights.org/site/PageServer?pagename=issue_caseDocket_jespersen

14 comments

  1. loveangellove · ·

    Reblogged this on loveangellove.

  2. Reblogged this on GenderTrender and commented:
    “Instead of isolating gender non-conforming and gender dysphoric people as a disordered class of persons whose defining characteristic is their departure from normative sex role behavior or appearance, we should recognize enforcement of sex role limitations as universal violations of our human rights—even when they are supported by medical professionals.”
    Word. For those who want to know how to enact legal protections for trans people without undermining the rights of women and girls. Click the link to read more.

  3. Reblogged this on Pass the Flaming Sword and commented:
    Introducing legislation based on ‘gender’ or ‘gender identity’ actually codifies into law the sex-based gender roles we are trying to abolish for the freedom of all. ‘Sex discrimination’ actually covers all that already–at least it should!

  4. “Major psychiatric misdirections often share this intimidating mixture of a medical mistake lashed to a trendy idea. Any challenge to such a misdirection must confront simultaneously the professional authority of the proponents and the political power of fashionable convictions. Such challenges are not for the fainthearted or inexperienced. They seldom quickly succeed because they are often misrepresented as ignorant or, in the cant word of our day, uncaring.”

    from Psychiatric Misadventures by Paul R. McHugh
    http://www.lhup.edu/~dsimanek/mchugh.htm

  5. Well, I guess that you’re right when you say that “Sex discrimination as legal strategy can be leveraged by anyone, not just female plaintiffs.” Apparently if you’re a heterosexual genetic male in a dress and wig, you can sue an establishment for $50,000 because they kicked you out due to your antics in the women’s restroom. Gee that’s really great. So if you’re a guy in a dress and wig, and you invade a female’s bathroom space, and she complains about you, you can sue for $50,000. At least that’s the lesson that I take from this:

    http://www.kptv.com/story/20772220/formal-charges-filed-against-bar-in-transgender-complaint-case

    http://www.kgw.com/news/local/N-Portland-bar-charged-with-discrimination-188884101.html

    http://www.katu.com/news/local/Discrimination-charges-filed-against-Portland-bar-Twilight-Room-Annex-188917461.html

  6. There are precedents of enacting legislation to create specific protections that should already exist under more general laws. And the one that immediately comes to mind is domestic violence. It involves actions punishable by long-standing law (like battery), but nevertheless specific acts were passed in various countries, with feminist lobbying.

    In the USA the relevant law (VAWA), as I understand, did not create new crimes. It allocated finance, created a government office and some processes.

    It might be that a similar clarification/fine-tuning approach to sex discrimination, rather than introducing a separate category, might end the trans worries in the USA as far as discrimination is concerned. The one issue that does not appear fully clear in current law is the possibility of discrimination for a beginning or ongoing transition; the employer could claim that as the reverse case (a female transitioning to social man) would be treated equally, this is not sex-based discrimination. While Smith v.Salem (your footnote vi) appears to settle the issue, it is only a district court decision and could be overturned at any time (if not outright ignored by another district court). Enshrining the equvalent of Smith v. Salem in legislation might work.

    However, the world is not limited to the USA. The generalizing approach that US courts take does not work in most of the rest of the world.

  7. Mikhail, if everyone is treated EQUALLY (no “gendered” dress codes justified by archaic stereotypes, for example), there is no possibility of discrimination. I don’t understand your hypothetical.

    Smith v. Salem is the 6th Circuit COURT OF APPEALS decision.

    You make an excellent point about the VAWA Act, but you are ignoring the replacement of sex with gender. If there was no OVERRIDE of one protected class (sex) with another (gender identity), I wouldn’t care in the least about a new law that protects something more specifically. It ALL COMES BACK TO THIS: sex is not gender is not sex is not gender.

  8. Hope you will forgive one more comment as it is in SUPPORT of this proposed legal strategy, though based on a political theory very different from yours. I’ll start with the theory and it might seem offensive to your views but this leads to full support for the proposed legal strategy.

    There is a specific reason I tend to reject class-based analysis, and it’s not just the experience of growing up under death throes of a Marxist state (though informed by it). The outcome of a class based analysis is VERY often a group of “leaders” employing such analysis appropriating the voice of all members of the class.

    The Russian Communist revolution, allegedly in the name of the proletariat, was an example by which I learned, but others do the same. And yes, I did read radical feminists claiming to speak for all women (disclaimer: not ALL radfems do it, and some others explicitly say they do not speak for “handmaidens” and want nothing to do with them). More funnily, Objectivists and Rand-leaning libertarians claim to speak for business people; they claim to reject class, but really postulate a class of “self sufficient” people, promptly appropriating their voice!

    I believe that people have a right to form their own views and, from that, voluntary groups where they join their voices together. An elected leader of a voluntary group legitimately represents it. But self-appointed leaders who work out a class and place themselves as defenders of class interests appropriate the voice of people in the class.

    When actual people in the class resist inclusion under the banners of the class leaders, they often face vitriol no weaker than that for the “enemy”; to me it seems more offensive than the attacks on the actual enemy, because it comes from alegedly “the same side”. To take radfems again, I don’t really mind what they believe about men, even though I am a man (OK they dislike me, “sticks and stones” etc). But the stuff on right wing women (cf Dworkin) and trans men (cf Dirt Boi) seems REALLY gross and condescending. “you are enabling your own oppression”, “you ARE a woman and a Lesbian just like us even though you don’t identify that way”. That is colonization of people’s very lives, silencing of their own voice on themselves – by those allegedly in their own group.

    Because class is so dangerous, creating more classes by law is a dangerous thing. Sex-based classification exists and can not be helped. But even race-based anti-discrimination laws, necessary in themselves, HAVE been used to “reify” race as a category (which has no current scientific basis) and there are proposals to reformulate them to “perceived race”.

    Now, reifying “trans” as a class by law only throws the voices of various people of trans experience into the hands of any self-appointed trans activist. And some of these, of course, also exhibit this behaviour to the full extent. Most trans people have no problems with Michfest and don’t care about Suzanne Moore, some might even read the latter’s original article in a positive, inclusive light (as in, born women are actually subjected to the same pressure to “conform to pass” that trans people are).

    Moreover, even reifying sexual orientation as a class does the same. See the flak dealt out by some activists people whose orientation was gay/lesbian but somehow they end up in “het” relationships (like Jan Clausen).

    So the best legal approach to fit this theory is one that extends protection while not creating any classes at all. And your approach does just that, by relying solely on the one class that is unavoidable anyway. It can be extended rather nicely to cover not just gender expression but also sexual orientation, as I think you noted yourself. If a female can be partnered with a male, a male can be partnered with a male. If a male can wear a suit and use male pronouns, so can a female (and I know females who prefer to do all that while not identifying as either trans or lesbian;some of them are in actual het relationships too, they are not “closeted butch dykes”). Ditto for a male who wants to wear dresses and use female pronouns, because females can do that. Disallowing any of this can be interpreted as *sex* discrimination.

    Relying on the courts does not appear reliable to me, I would support legislation instead (but the VAWA approach can be used – clarifying protection rather than creating it). Also, this approach supercedes your and Cathy’s submission to the UN, as it removes the need for any definition of gender identity. And it also protects gender variant people who do NOT identify as trans, and (very much UNLIKE the UN letter) does not rely on pathologization, leaving medicine to the medics, where it belongs.

    There are a couple of things it does not seem to cover:

    – Privacy of sex, essential for a non-threatening environment for some gender variant people. You grudgingly allowed it already, though. And it actually is a BETTER solution for trans people than any set of requirements to change gender on documents. I read in trans blogs that people are thrown out of job interviews after the interviewer sees their legal gender mismatch their appearance, because they could not afford the medical evaluation to have it changed. How about making it illegal to ask for their sex at all without legitimate reason? They were not all applying to rape crisis centers, you know. Pregnancy-based protection is different but it depends on the fact, not possibility. of a pregnancy.

    – Discrimination for visibly associating with a subculture (gay, lesbian, trans is often a subcultural identity too). That might need separate protection, which really needs to be wider, as there are subcultures completely separate from sex (and not criminal) that also should not be targeted by discrimination. Are “thrown out for looking camp” and “thrown out for wearing dreadlocks” all that different?

    As for treatment coverage it should not be based on anti-discrimination laws, but on medical research. Can we at least agree that coverage questions should be decided on medical, not political, grounds? Legally it does turn into a “battle of the experts”, but that’s better than a battle of ideologues.

    (To what degree people *without* a proven pathological reason should be allowed to modify their body and/or use certain substances like hormones is a separate question that has no link to insurance).

  9. Yeah, sure, I just don’t have to reply right now b/c of other demands on my time.

  10. For the record, I looked into the links provided by Jennifer and an additional links from there. There is no evidence that bathroom use was involved. A bar has told a trans group not to meet there anymore.

    A google has found an article where a mem ber of the group explicitly denies there were bathroom issues: http://www.kptv.com/story/19242819/transgender-women-explain-complaint-against-portland-club . That same article quotes the bar owner as explaining why he does not wantr the group to meet there – and it’s because people are thinking it is a “tranny bar or gay bar”, no other reasons are given.

    The article does not state which bathroom was used, nor do any other articles I found. But this case is not about bathrooms. Moreover no complaining female is mentioned (the owner’s is named “he” in the last article), and the charges were filed by the Labor commission, not by any member of the group.

    I am sorry but Jennifer’s statement is very misleading. I am not a lawyer, and can not judge if it is libelous, but it definitely misrepresents the case.

  11. Nice try Mikhail. Here, I found the bathroom evidence- along with the rest of the story that probably isn’t being told – that the Rose City T-Girls are a group of 20-40 males who are mostly CROSS DRESSERS, not transwomen. And as for no female being named as having complained – that does not prove there weren’t any complaints. You’d be insane to allow yourself to be publicly named as having complained about this group, when they could publicly trash you for being a bigot, just like they’re trashing the bar owner, even though he and the others had every right to complain about their behavior, from the sound of it. So you and everyone else who are on the side of this group are just fighting for the right of a bunch of cross dressing men to be able to use the women’s restrooms just because they’re dressed as “women” for the night. Yeah, no shit women didn’t want to go to that club. I sure wouldn’t.

    http://www.oregonlive.com/portland/index.ssf/2012/09/portland_club_changes_name_but.html

    “Penner insists he’s neither homophobic nor anti-transgender people. He once hosted a weekly queer dance night in the space, and on Wednesday nights a gay pool team practices in the bar.

    But a year ago, he said, he started hearing complaints about the T-Girls. Other customers said they left the stall doors open and seats up in the women’s restrooms.

    “Most are in-the-closet, straight men, but they’re using the women’s restrooms,” he said. “They feel they have a right to use those restrooms because on Friday nights, they are women.” ”

    http://gendertrender.wordpress.com/tag/rose-city-t-girls/

    “Cassandra the leader of the Rose City T-Girls Yahoo Group does not identify herself/himself with the title of “Transgender Woman”, he is a Crossdresser. It seems as if every single last news story went with that false title. If you go on the Rose City T-Girls Yahoo Group webpage and click the name link “Cassandra” at the bottom of the page, his Yahoo profile comes up and he identifies himself as “CD Cassandra”. His main yahoo email address even contains the word “crossdressing” in it.”

  12. Mikhail, I used to be a member of that group [the Rose City T-Girls] over two years ago. I quit the group for several reasons. One of those reasons was the behavior of the group at the P-Club. They took over the place on Friday nights. They ONLY used the women’s restrooms. I witnessed with my own two eyes how they would go into the women’s restroom and leave the bathroom stall doors open and pee standing up. The leader Cassandra is a married crossdresser who identifies as heterosexual. Cassandra also runs a pornographic webcam site where you can pay money to watch him masturbate while he is dressed as a girl. All of this is kept hidden from his air-head wife, who chooses to ignore all of the obvious signs of her husband’s extra-marital activities. Also, Cassandra is the textbook example of a stereotypical bully, who surrounds himself with weak individuals who he can easily manipulate. Those are just a few of the reasons that I (and others) chose to leave that group. I assure you that nothing that I said is libelous or misleading. Their behavior is atrocious.

  13. I was not fighting for any rights except fair representation. The sources cited did not corroborate the story, nor did what I could find. You did not mention any personal involvement. So it *seemed* that you supported kicking them out “just because”. With the new link and your own knowledge, the issue is much clearer.

    It seems, from the statements of the Bureau, that Penner chose to kick the group out rather than demand that they use the male or disabled bathrooms. There is an explicit statement that no complaints were made to the group prior to the notice. (It appears likely that the owner made a big mistake of not talking to a lawyer before making a legally dangerous move).

    I’m leaning to a libertarian viewpoint on *this particular* case anyway, the use of any particular bar in a big city is not essential so perhaps anti-discrimimation law should not even apply. On the other hand, a blanket precedent that it does not apply (based on the existing complaint) might allow any bar or shop owner to kick out a person “dressed improperly for their sex”, just for that fact, even if there is no alternative around for miles. And it’s not just about crossdressers and transgender people – deeply conservative owners might cite the case to kick out butch-looking women, too.

    It would be much better if the case concentrated on bathrooms, but they are not in Penner’s recorded complaint – I hope the issue can be pulled to the front in court somehow. Without mentioning bathrooms, *any* resolution might set a bad precedent. But if bathrooms are cited as the principal reason, let him win. (I seriously doubt that existing law really protects bathroom use in this case).

    Cassandra’s activities outside of the bar are neither here nor there. It would definitely NOT be legitimate to kick someone out of bar because they make pornography at home, and as for how he identifies… This thread is about a proposed legal strategy that simply does not bring the person’s identity into view in any way whatsoever – which is why I really like it. I happen to believe rights should be objective and not dependent on identity.

  14. No behavior should be demanded based on sex, and all individuals should have the right to privacy of sex, I agree. The potential for pregnancy or parenting leave of ANY kind should be granted to all workers. This is how Norway and some other forward-thinking countries do it. When everyone is expected to help raise their children, being female is not counted as a weakness in employability anymore. And if no behavior can be required based on sex, then any gender expression will be protected under this law. We shouldn’t need gender codified into law as a defined category.

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