Eric Meyer, whom I very much respect, wrote a post about whether I was correct to describe the case of Dawson v. H&H Electric as one in which a federal court held that discrimination on the basis of transgender status presents a valid claim of sex discrimination under Title VII. As Meyer put it, that characterization was incorrect because “the court denied the employer’s motion to summary judgment on other grounds” — the application of sex stereotyping protection.
But I stand by my conclusion. I don’t draw a distinction because a valid claim of sex discrimination is founded on sex stereotyping or because the claim is based on the plain meaning of the word sex. Both get a person to the same place: the ability to bring a claim based on transgender status as a claim of sex discrimination. The theory of getting there doesn’t matter. The result does.
As the judge in Dawson said:
It is well settled that Title VII’s interdiction of discrimination “because of [an] individual’s sex,” 42 U.S.C. § 2000e-2(a)(1), prohibits an employer from taking adverse action because an employee’s behavior or appearance fails to conform to gender stereotypes. [citing Price Waterhouse and other cases.] The Court finds that Dawson pleads facts sufficient to state a legally viable claim that H&H discriminated against her because of her sex in violation of Title VII. (emphasis added)
The court thought there was a difference between its reasoning and what the EEOC was saying in our amicus brief. But I don’t think so. I think people have made a distinction between a claim based on sex stereotyping and a claim based on the plain meaning of the word sex because the sex stereotyping theory has been around for so long and has not been applied consistently to protect transgender people (or LGB people). But I hope those days are over. In the Macy decision and the Baldwin decision, the EEOC used both theories to get to the result of protection for transgender people and LGB people. But either theory would have sufficed. Either way you get there, protection is at the end of the road.