SEATTLE UNIVERSITY LAW REVIEWVolume 25, No. 1SUMMER 2001
NOTES
Schwenk and the Ambiguity in Federal "Sex" Discrimination Jurisprudence: Defining Sex Discrimination Dynamically under Title VII
Masako Kanazawa(fn*)
I. INTRODUCTION
Title VII of the Civil Rights Act of 1964 prohibits discrimination by employers against any individual employee "with respect to [his or her] compensation, terms, conditions, or privileges of employment, because of. . . sex."(fn1) Currently, uncertainties exist among the federal courts regarding the meaning of the words "because of. . . sex" in Title VII, especially in the context of sex discrimination claims brought by a transsexual or a homosexual plaintiff. Specifically, is discrimination based on one's "transsexuality" or "homosexuality" discrimination "because of sex" for purposes of Title VII?
Recent medical studies suggest that there are, in the United States, millions of these intersexed individuals,(fn2) whose biological factors determining sex(fn3) are ambiguous. Transsexuals refer to these individuals whose gender(fn4) identity does not match their sex assigned at birth.(fn5) Transsexuals feel trapped in a body of the wrong sex and seek release by way of sex reassignment surgery or sometimes even suicide.(fn6) They do not view themselves as a transsexual because their self-identity is either male or female.(fn7) With the exact causes of transsexualism being still in dispute,(fn8) society often confuses transsexuals with homosexuals or transvestites. Homosexuals are those "sexually attracted to persons of the same sex,"(fn9) and transvestites are those who occasionally dress in clothes of the opposite sex.(fn10) Homosexuals and transvestites, unlike transsexuals, have no desire to change their anatomy.(fn11)
Until the Ninth Circuit's decision in Schwenk v. Hartford(fn12) in February of 2000, the federal circuit courts addressing the issue of Title VII's applicability to transsexuals had consistently held that discrimination based on one's transsexual status is not actionable because the word "sex" in the Act refers only to "anatomical sex," not gender identity.(fn13) Also, until recently, the federal circuits uniformly rejected homosexual plaintiffs' Title VII sex discrimination claims by holding that discrimination based on one's "sexual orientation" is not discrimination "because of sex."(fn14)
The Ninth Circuit in Schwenk departed from the "anatomical sex" approach, declaring that the word "sex" in Title VII encompasses both biological sex and socially-constructed gender.(fn15) The court combined the ban on "sex stereotyping" under the Supreme Court's decision in Price Waterhouse v. Hopkins(fn16) with the recognition of male-on-male sex discrimination claims in another Supreme Court decision, Oncale v. Sundowner Offshore Services, lnc.,(fn17) to conclude that discrimination based on one's failure to meet gender expectations is actionable under Title VII.(fn18)
The Ninth Circuit's decision created a split in authority with the Seventh Circuit, which continues to cite its "anatomical sex" rule with approval.(fn19) Although the Ninth Circuit pronounced the expansive definition of sex in Title VII in the context of a transsexual plaintiff in Schwenk, which was followed in Nichols v. Azteca Restaurant Enterprises, Inc.,(fn20) a recent decision involving an effeminately-perceived male plaintiff, the court continues to invoke the rigid sex/sexual orientation dichotomy in rejecting homosexual plaintiffs' sex discrimination claims.(fn21)
The Ninth Circuit's "sex plus gender" approach in Schwenk is superior to the "anatomical sex" rule, whose underlying premises are flawed. The Seventh Circuit's continued adherence to such a rule is pure formalism and irreconcilable with Price Waterhouse and Oncale. Also, the Ninth Circuit's recent refusal to recognize sexual orientation discrimination as actionable sex stereotyping is inconsistent with, and a step backwards from, its dynamic reading of sex in Schwenk.
Sex discrimination occurs primarily because of societal gender norms governing how a man or a woman should be.(fn22) There is no theoretically satisfactory boundary between sex discrimination on the one hand and gender or sexual orientation discrimination on the other.(fn23) Such an unrealistic categorization will only lead to confusion and indeterminacy in law.
This Note examines a new development in federal Title VII sex discrimination jurisprudence specifically in the context of transsexual and homosexual plaintiffs, describing the courts' gradual shift away from formalism towards a more realistic approach in this area. Part II begins by examining the anatomical sex rule established by the three major pre-Schwenk decisions categorically rejecting transsexuals' Title VII claims. This section then considers the two subsequent Supreme Court decisions, Price Waterhouse and Oncale, and the Ninth Circuit's Schwenk opinion. Part II concludes that the Schwenk court correctly read Price Waterhouse and Oncale as mandating a departure from the anatomical sex approach.
Part III looks at the federal courts' confusing application of Title VII sex discrimination law to homosexual plaintiffs, arguing that the courts' use of the sex/sexual orientation dichotomy is unwise and inherently unworkable. Part IV analyzes and critiques the anatomical sex rule as a legal principle, and Part V examines the likelihood of success for future transsexual and homosexual Title VII sex discrimination plaintiffs. In the Conclusion, this Note argues that the courts should follow the Ninth Circuit's "sex plus gender" approach in Schwenk as being both consistent with Price Waterhouse and Oncale and superior to the anatomical sex rule. Finally, this Note contends that the courts should read Title VII dynamically to reach discrimination based on societal male/female binarism and heterosexual gender stereotypes.
II. What Do We Mean By Discrimination "Because of Sex?"
A. The Anatomical Sex Rule: Holloway; Sommers; and Diane
When a transsexual individual brings a sex discrimination claim under Title VII, federal courts confront the issue as to the meaning of discrimination "because of sex."(fn24) Until the Schwenk decision, the Seventh, Eighth, and Ninth Circuits had categorically rejected transsexual plaintiffs' sex discrimination claims by defining the word "sex" narrowly to mean only one's biological or anatomical sex status as a man or a woman. The following cases are illustrative of the anatomical sex rule established by the three federal circuits.
The Ninth Circuit decision, Holloway v. Arthur Andersen and Co.,(fn25) involved a male-to-female transsexual plaintiff, Ramona Hollo-way.(fn26) Holloway started working for the defendant company Arthur Andersen in 1969 as Robert Holloway and started hormone treatments in February of 1974 in preparation for sex reassignment surgery.(fn27) In November of the same year, Holloway had her name changed on company records to Ramona.(fn28) Following these changes, on November 18, 1974, her employment was terminated.(fn29) Holloway sued the company under Title VII, alleging discrimination on the basis of her transsexuality.(fn30) The Ninth Circuit affirmed the district court's grant of the company's motion to dismiss for failure to state a claim, holding that discrimination "because she is a transsexual who chose to change her sex" is not discrimination "because of sex."(fn31) The court declared that Congress intended the word "sex" to mean only the "traditional notions of sex," which, according to the court, did not embrace transsexuality.(fn32)
The Eighth Circuit case, Sommers v. Budget Marketing, Inc.,(fn33) involved a self-described transsexual, Audra Sommers, who considered herself "a female with the anatomical body of a male."(fn34) Sommers was hired by the defendant company, Budget Marketing (Budget), on August 22, 1980, to do clerical work.(fn35) Two days later, Budget terminated her employment.(fn36) Sommers sued Budget under Title VII, alleging that the company fired her because of her sex.(fn37) The company countered that the termination was due to her misrepresentation of herself as an anatomical female in applying for the job.(fn38) Budget also alleged that its work environment was disrupted by other female employees' threats to quit if the company allowed Sommers to use the women's restroom.(fn39) The district court entered summary judgment for the company.(fn40) Upon appeal, Sommers argued for the expansion of Title VII's coverage to accommodate those "who are psychologically female, albeit biologically male."(fn41) Nonetheless, the Eighth Circuit affirmed the summary judgment, holding that it is one's anatomy that determines "sex" within the meaning of Title VII.(fn42)
In the Seventh Circuit case, Ulane v. Eastern Airlines, Inc. ,(fn43) the plaintiff pilot, a male-to-female transsexual, was hired by the defendant Eastern Airlines in 1968 as Kenneth Ulane.(fn44) Ulane had "felt like a female" since early childhood.(fn45) In 1980, Kenneth-turned-Karen underwent sex reassignment surgery.(fn46) Ulane succeeded in having her birth certificate amended to reflect her self-identified female gender and also in having the FAA certify her for flight status as a female.(fn47) In 1981, Ulane was fired by Eastern Airlines, and she sued the company for sex discrimination under...
