Getting Dirty: A Litigation Strategy for Challenge Sex Discrimination Law by Beginning with Transsexualism


This is a paper about getting dirty. This is a paper about strategy, complete with a road map, a game plan, and a recipe for change. While this involves brief forays into questions of statutory intepretation or federalism, this is primarily a paper about how courts view sex and how litigators can influence this view. Without rejecting the importance of theoretical work about the meaning, function, and interpretation of sex in the law, it is important to know that this paper attempts to do something fundamentally different: provide a useful strategy for litigators to change the way courts think about sex discrimination law. It is not meant to be a complete answer, but rather to etch out the place for litigation in a broader movement encompassing activists, legislators, and individuals. Litigation has an important place in this struggle, but large-scale change requires multiple forms of attack.

If the purpose of this paper is to reconsider what is meant by “sex discrimination,” then it may seem strange to set forth a litigation strategy based on the rights of transsexuals, since they comprise such a numerically small group of people. But the treatment of transsexuals under anti-discrimination law affects the rights of all groups marginalized on the basis of sex. An effective challenge to the exclusion of transsexuals from the meaning of “sex” under sex discrimination statutes will undermine the contention that the protections affected by sex discrimination statutes are limited to certain defined groups.

A recent decision from the European Court of Justice (hereinafter the ECJ), P v. S and Cornwall Co. Council, (hereinafter Cornwall) maps out the reasoning for a challenge to traditional notions of sex discrimination doctrine. In this case, the ECJ held that a sex discrimination statute prohibited the discharge of an employee for undergoing sex reassignment surgery. The Court reached this result by eschewing the traditional analysis of sex discrimination doctrine. Two recent transsexual sex discrimination decisions from New York, Maffei v. Kolaeton Industry, Inc. and Rentos v. Oce-Office Systems, show that American state courts provide fertile ground for this interpretive approach. In the past, American decisions based on the federal law of Title VIWs have narrowly interpreted the federal sex discrimination statutes to exclude transsexuals from the definition of “sex.” Although, to date, many states have simply adopted the federal reasoning, federal precedent does not compel identical interpretations of state law. Indeed, these two New York courts based their findings that sex discrimination statutes included protections for transsexuals on state, rather than federal, statutes.

Given this open interpretive terrain, I argue that other states should follow New York and the ECJ court’s reasoning when interpreting state statutes. I am not concerned with a policy argument about ends. Rather, I begin from the premise that this is a desired end and then develop an interpretive argument about means which will lead to that end. At this point, courts must choose from one of two interpretive lines of sex discrimination case law. The first approach, followed by most American courts and cemented by the Seventh Circuit’s decision in Ulane v. Eastern Airlines, Inc., considers the plain meaning of the word “sex” and legislative history to find that “sex” in Title VII of the Civil Rights Act of 1964 (hereinafter Title VII) does not protect transsexuals. Whereas the American approach looks backward, the second, competing approach espoused by the ECJ looks forward. Based on current and evolving understandings of sex and of transsexualism, the ECJ interprets sex to include discrimination against transsexuals.

Through a comparison of these two decisions, I suggest why the ECJ’s approach provides a better analytic framework for interpreting state statutes. I begin with what I believe is the answer: the Advocate General’s opinion which the ECJ essentially adopted in P v. S and Cornwall Co. Council. Finding the plain meaning and legislative history analysis non-determinative, the Advocate General employs a “dynamic” interpretation, one which considers a statute in light of changes in legal, social, and scientific understandings. This interpretive method drives the ECJ to a more inclusive end, one which is more coherent and better fits the particular nature of state law than the federal model.

Following this analysis, I examine why such an approach is both possible and necessary in the United States. To do so, I first consider why American courts as a general proposition may be prepared to expand current sex discrimination law to include transsexuals, despite their failure to make expansions for other groups marginalized on the basis of sex. I then closely examine the American line of transsexual cases, led by Ulane, to demonstrate the problems of Ulane‘s reliance on the plain meaning and legislative history analysis in light of the ambiguities present in both of these standards. I contrast the Ulane reasoning with the more coherent analysis employed by the ECJ in Cornwall. Finally, drawing upon the reluctance of federal courts to go against the Ulane reasoning, I suggest that litigators consider asserting claims under state non-discrimination laws. To that end, I present two recent New York cases that demonstrate how the ECJ approach may be successfully applied in the United States.

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