This is an excerpt of Sue Landsittel’s article Strange Bedfellows? Sex, Religion, and Transgender Identity Under Title VII, 104 NW. U. L. REV. 1147 (2010). The full article can be read here.

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IV. TALKING ABOUT “SEX” LIKE RELIGION

Cases like Smith and Schroer demonstrate that courts are beginning to read Title VII in a more transgender-protective way. In doing so, they are implicitly acknowledging that one’s “sex” is in part determined by gender identity and is fluid and complex. They are acknowledging that “sex” is, at least in some ways, not a paradigmatic protected class that is defined solely on the basis of an easily identifiable characteristic.

The Schroer court grasped at this when it compared Diane Schroer to a
religious convert. Recall the court’s analogy:

Imagine that an employee is fired because she converts from Christianity to Judaism. Imagine too that her employer testifies that he harbors no bias toward either Christians or Jews but only “converts.” That would be a clear case of discrimination “because of religion.” No court would take seriously the notion that “converts” are not covered by the statute. [171]

Doctrinally, this analogy functioned to show why “transsexuals” should be protected based on the plain language of Title VII‘s prohibition against discrimination “because of sex,” just as “converts” undoubtedly were protected under Title VII‘s prohibition “because of religion.” [172] But the religion analogy also implied that, at least in some ways, sex is like religion which is not a paradigmatic protected class. For one thing, as the conversion example demonstrates, religious identity is not “immutable.”

In fact, the possibility of change is not the only thing that religious identity and sexual identity, with gender identity as a component, have in common. There are at least two other important similarities. First, religious identity has a deeply personal, internal genesis that lacks a fixed external referent. Likewise, gender identity, as a determinant of sexual identity, is described as an “internal, deeply felt sense” that is independent of one‘s physical features. [173] Second, one‘s religious identity may not adhere to tenets of an organized religion or orthodox doctrine, just as one‘s gender identity might not conform to dogmatic “male” and “female” norms.

These characteristics of religious identity can make it difficult to discern and define. Nonetheless, and despite the First Amendment, courts can and do engage in the “delicate business” [174] of testing religious identities for the purposes determining whether Title VII protection is warranted. [175] Not every claimed religious identification receives protection: the court must draw lines. [176] Title VII religious discrimination jurisprudence, therefore, provides a model for authenticating—for the purposes of conferring protection—a deeply personal, internal, and sometimes variable identity. Given that gender identity shares some of these difficult characteristics, and to the extent that courts are engaged implicitly in the authentication of transgender identity, the religious model can be instructive. The application of tests for religious identity to the problem of gender identity produces a more realistic, and therefore more appropriate, authentication framework than the current reliance on medical diagnoses and conformity with the gender binary. [177] The discussion below begins by describing how courts test religious identity in Title VII cases, then proceeds to explain how and why similar tests should be applied in transgender employment discrimination cases.

A. Consistency as a Test for Religious Identity

Under the First Amendment, courts, of course, cannot assess whether a claimed religious belief is true or false. [178] Instead, courts determine whether the belief should be considered “religious” based on whether it “occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God.” [179] A belief need not correspond to the tenets or dogma of any particular religious organization to be considered “religious,” [180] nor need it even relate to a deity. [181] Notably, a belief “need not be acceptable, logical, consistent, or comprehensible” in order to be recognized by the First Amendment. [182]

A separate question that does allow for judicial factfinding, however, is whether a religious belief is “sincerely held.” [183] So while courts do not assess the validity of a religious belief, they do assess the sincerity of the religious believer in order to determine whether antidiscrimination protection is ultimately warranted. [184]

Courts generally evaluate a religious believer’s sincerity by examining whether the believer‘s expressions and behavior are consistently in accord with the claimed belief. [185] In E.E.O.C. v. Union Independiente, for example, the court denied summary judgment to an employee who claimed he was discriminated against on the basis of his Seventh-Day Adventist objection to union membership. [186] According to the court, evidence that the employee had behaved in a manner inconsistent with the tenets of Seventh-Day Adventism—by lying on an employment application, being divorced, taking a public oath, and working five days a week—could allow a factfinder to conclude that his professed beliefs were not sincere. [187] The same was true with regard to the employee’s inconsistent statements about what his Seventh-Day Adventist faith required. [188]

Two cases in which plaintiffs claimed that religious beliefs required them to wear beards in violation of their employer‘s grooming policies are also instructive. In Hussein v. Waldorf Astoria, the court denied a plain-tiff‘s claim that he was discriminated against when his employer refused to let him work with a beard. [189] The court found that the plaintiff‘s belief was not sincere because he had never behaved in any way consistent with such a belief. [190] In particular, prior to the incident in question, he had “never worn a beard to work . . . in some 14 years” and had never mentioned his religion or explained his religion to anyone. [191] Furthermore, “within three months, he shaved his beard, an undisputed fact that also undercuts his claim of religious necessity.” [192] In contrast, in Carter v. Bruce Oakley, a similar claim was upheld when the plaintiff had only shaved his beard when threatened with termination, and had repeatedly informed his employer of that a no facial hair policy conflicted with his religious beliefs. [193] The cases illustrate how courts use consistency to assess sincerity.

B. Consistency as a Test for Transgender Identity

This Comment has shown that the test courts implicitly use to authenticate gender identity is flawed. To the extent that courts must test trans-gender identities, the “consistency” test from religious jurisprudence provides a much better rubric. This test developed in a context where identity can be fluid, unorthodox, and lacking a fixed external referent, but nonetheless authentic. Therefore, it reflects a more realistic conceptualization of how gender identity functions as a part of one’s sexual identity.

As such, the consistency test would remedy some of the underinclusivity that plagues the current medical-and-conformity model. For example, it most certainly would protect someone like Krystal Etsitty, who had “always believed” [194] that her gender did not match her birth sex and had consistently “lived and dressed” [195] as a woman. The fact she had not completed sex reassignment surgery would not be dispositive. In addition,  someone like Darlene Jespersen, who had exhibited a consistent gender identity at work for twenty years (in her case, by not wearing makeup) would also be protected. As Judge Kozinski noted, there could be “no doubt” [196] about the “intensity of her feelings” [197] and the sincerity of her gender identity: she was willing to lose her job rather than compromise it. A showing that a transgender identity was consistent, and that it persisted despite significant burdens, would be enough.

The consistency model also fairly accounts for the interests of employers in the stability and predictability of, for example, name and dress. A consistency requirement ensures that employers will be able to regularize professional relations among coworkers and with customers.

One particularly contentious issue between transgender persons and their employers is bathroom use. Under the consistency model, a trans-gender person could not lose her job for using a bathroom that corres-ponded with her gender identity like Krystal Etsitty did, regardless of whether she had sex reassignment surgery. This is fair: despite the outcome in Etsitty, employers do not have an insurmountably strong interest in preventing transgender women from using women‘s restrooms, or in requiring bathroom access to be based on genital status. A common justification for basing bathroom access policies on genital status is that such a practice is customary and reflects a widespread cultural preference. [198] However, requiring a transgender woman to use men’s restrooms instead of women‘s restrooms because of her genitals would certainly cause no less disruption than allowing her to use the women’s room. [199] Her use of the men’s restroom would likely be more socially disruptive, in fact, because “fellow employees discomfort does not stem from the outward appearance of genitals because most fellow employees never see others’ genitals while using the restroom.” [200] This is equally true for transgender men who do not have male genitalia and use men’s rooms, where they can choose to use stalls. Gender presentation, not genitalia, is the most salient factor determining the social “appropriateness” of a person’s presence in a restroom. [201]

Admittedly, a consistency model would not afford protection to all transgender persons. Under a consistency model, gender identity must be relatively stable in order to be considered authentic, so those who experience a fluctuating gender identity or frequently change their gender expression could be denied protection. However, most people—both transgender and cisgender—seem to experience their gender identity, whether or not it corresponds with their birth-assigned sex, as something fairly fixed. [202] The consistency model therefore achieves a reasonable balance between the needs of employers and needs of transgender employees.

One can hope that someday gender will not be such a salient part of our social environment, such that more radical or frequent changes in gender identification and presentation will not be regarded as socially problematic. Indeed, perhaps someday our society will cease to obsessively demand that gender be assessed and categorized in the first place. Requiring that one‘s professed gender identity be “authenticated” at all, whether according to consistency or another test, is in itself problematic. The consistency model is certainly not perfect, but it is a significant step forward. By providing courts with a workable rubric that divorces gender identity from medical certification and binary gender norms, it would afford transgender persons significantly greater protection than they currently receive.

CONCLUSION

Diane Schroer has displayed remarkable courage as a soldier, as a civil rights plaintiff, and by being true to herself. In some ways, though, she was very lucky. As a distinguished military veteran who had excelled at the highest levels of her profession, she enjoyed a measure of credibility that discrimination prevents many transgender people from establishing. Her financial resources enabled her to access medical care so that she could transform her physical body to match her vision of her true self. Undoubtedly, Schroer had a better chance at success in the courts than most other transgender people.

Because there is no clear doctrine governing the application of Title VII‘s sex discrimination prohibitions to transgender plaintiffs, courts implicitly “test” transgender identities according to two criteria—GID diagnosis and conformity to the gender binary, in order to determine whether protection is warranted in a particular case. This test, however, results in underinclusive protection, because these two criteria do not map well onto many transgender people‘s lived experiences. In particular, many transgender people may not obtain a GID diagnosis, most likely do not undergo the types of medical intervention necessary to make a “complete” physical transformation from one of society’s sex categories to the other, and some desire no such complete transformation but nonetheless have gender identities that do not correspond to stereotypical norms associated with their birth sex.

The analogy between religious conversion and transsexuality deployed by the Schroer court can be expanded in order to provide more inclusive protection for transgender people under Title VII. Religious identity and gender identity are similar in important ways not explicitly referenced in Schroer: for example, both can be experienced as a compelling internal sense that is independent of any fixed external physiological characteristic, and both can be idiosyncratic and nonconformist yet entirely sincere. Therefore, the way in which courts currently test the authenticity of a per-son‘s religious identity for the purposes of nondiscrimination protection provides a workable model for testing the authenticity of transgender identity as well. Courts should assess consistency, rather than medical diagnosis and treatment or conformance with binary gender norms, in order to authenticate transgender identity under employment nondiscrimination law.

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I’m posting this because I think it’s a fascinating and important analysis, not because I agree with anything beyond the need to add consistency and sincerity requirements to all “gender identity” definitions. I also disagree that a demonstration of sincerity and consistency alone would be sufficient to override physical and legal sex as a general matter, unlike what Landsittel suggests in regard to Krystal Ettisty. For example, based on his legally identifying documents and length of time “cross-dressing,” Colleen Francis would have been able to show that he was both sincere and consistent in his gender presentation, yet exposure of his penis in the women’s locker room is still improper and still presents a risk to average female observers.

Further, this is the primary argument underlying Landsittel’s (and many other pro-transgender legal commentators’) position on bathrooms:

Gender presentation, not genitalia, is the most salient factor determining the social “appropriateness” of a person’s presence in a restroom. [201]

Bathroom usage is not theater. Bathrooms are for business, and that bathroom business is directly related to your body’s specific genito-urinary needs and abilities. For example, males use urinals to pee while standing; females do not. Fertile females require sanitary disposal receptacles in the stalls to dispose of  menstrual waste; males do not. Sex matters in regard to bathroom facility usage. Bathrooms are for body-related business.

Further, and much more disturbingly, this argument would exclude gender non conforming from women’s bathrooms. Because “gender presentation” is apparently the “most salient factor determining the social “appropriateness” of a person’s presence in a restroom,” and since gender non conforming and butch women don’t look or act like stereo-typically “appropriate” women, Landsittel is effectively arguing that women who “look like men” should use the men’s room. Challenging gender norms, and the social discomfort that it causes some people, is not a sufficient reason to legally reinforce the tyranny of gender normativity by agreeing that mere appearance (presentation) is most salient determinant of which bathroom a person should use!

As a community, we must accept gender non-conformity and we must separate general appearance from genitals. If we agree that certain forms of expression flow naturally from certain kinds of genitals, then every female who defies the straight-jacket of femininity is an inappropriate women. And every male who defies the mandates of masculinity is an inappropriate man. This is harmful stereotyping. Re-ordering bathroom access according to superficial appearance is irrational. We should insist on universal social acceptance of all gender presentations on all bodies and refuse to accept that it has anything to do with one’s genitals.