30-b-2 Sex Discrimination

• Library: A Jailhouse Lawyer's Manual (2020 Edition)

30-B-2. Sex Discrimination

Although your chances of prevailing on an equal protection claim may have increased after United States v. Windsor, you might also have a chance of prevailing if you state your grievance in terms of sex discrimination.¹⁰ Title VII of the Civil Rights Act of 1964 creates a federal cause of action where "sex ... was a motivating factor"¹¹ for discrimination and has been held to prohibit sex discrimination against both men and women.¹² Sex discrimination is discrimination that occurs based on whether you are a man or a woman, as well as whether you suffered discrimination based on stereotypes about how men or women should behave or look. LGBT people have used this "sex-stereotyping" theory to argue they have suffered from sex discrimination. This is useful because courts subject laws and policies that treat people differently according to their sex to "intermediate scrutiny."¹³ Intermediate scrutiny is a higher level of scrutiny than "rational basis scrutiny." Intermediate scrutiny requires the prisoner to show a substantial relationship between a prison rule and a legitimate goal of the prison to justify a sex-based classification.¹⁴

Sex-stereotyping claims cover claims of discrimination against people for not conforming to the expected behavior of their sex (not acting like people think their sex is "supposed to" act). The Supreme Court recognized this cause of action in Price Waterhouse v. Hopkins, finding sex discrimination when an accounting firm told an employee she had to "walk, talk, and dress more femininely, style her hair, and wear make-up and jewelry" to get a promotion.¹⁵ This case is particularly useful for transgender prisoners who suffer from discrimination in prison. For many years, courts were unsympathetic to transgender plaintiffs, particularly in prisons. But, several cases have held that Price Waterhouse protects transgender people and overrules previous decisions like Ulane v. Eastern Airlines, Inc., ¹⁶ which denied transgender people protection under Title VII and similar sex discrimination laws.¹⁷

Sex-stereotyping can also be used by lesbian, gay, and bisexual people in making discrimination claims. For example, if you are a gay man and you believe you were fired from your prison job because you are gay, you could argue that you were discriminated against based on sex or sex stereotypes. For instance, you are a man who desires male sexual partners and therefore you were fired, whereas male prisoners who desired female sexual partners would not have been fired.¹⁸ By framing the argument in this...