Guest Blogger

ENDA: The Volokh Conspiracy Gets It Wrong

Filed By Guest Blogger | October 09, 2007 2:31 PM | comments

Filed in: Politics, The Movement, Transgender & Intersex
Tags: ENDA, gender, politics, transgender, workplace protections

Editors Note: This guest post comes to us from Dr. Jillian Weiss. Dr. Weiss is an associate professor of Law and Society at Ramapo College in New Jersey, specializing in transgender workplace diversity issues, and she has conducted research involving hundreds of companies and public agencies that have adopted "gender identity" policies. She has written a dissertation and several articles in scholarly journals and books on transgender identity and the workplace. She is on the Board of Advisors of the National Center for Transgender Equality, and she publishes a popular blog on the subject of transgender workplace diversity, which may be found at http://transworkplace.blogspot.com

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Yesterday, the Volokh Conspiracy, a well-regarded legal blog, published a post disputing Lambda Legal's point in their open letter to Barney Frank about why gender identity inclusion is important to gays and lesbians. Lamba said, in their open letter, that the new sexual-orientation-only bill is "...far weaker by denying the protection that would have been provided by the earlier version to those who may not identify as transgender but who are discriminated against because they are perceived as gender nonconforming. Lesbians, gay men and bisexuals frequently are perceived that way."

The blogger, Dale Carpenter, disputes this contention as follows:

"As a factual matter, it would be passing strange to see such a case, since almost every instance of discrimination for gender nonconformity is accompanied by direct and explicit evidence of anti-gay discrimination (e.g., calling an effeminate man a "fag"). It would not be hard for a court or jury, and certainly would not be hard for Lambda's skilled lawyers, to pierce the pretext that the employer was not really engaged in anti-gay discrimination and thus violating the "weak" version of ENDA.


Indeed, we now have decades of experience with state laws that protect gay people from discrimination based on sexual orientation but not gender identity. If the inadequacy of sexual-orientation protections were a real problem -- as opposed to a hypothetical or theoretical one -- we should expect to see many such cases. But neither Lambda nor any other organization has yet produced a single instance in which an employer successfully argued around a gay-only employment protection law by claiming that it really fired the person for gender non-conformity."

Mr. Carpenter has no data to support his argument that discrimination for gender nonconformity against gay people co-occurs with using the word "fag" or any other such epithet, and his idea that courts would not make such a sharp distinction between sexual orientation and gender identity. If he is looking to the absence of state court opinions to back him up on this, as his language suggests, his sample is seriously flawed for two reasons:

1) gay plaintiffs in states with sexual-orientation-only laws who are discriminated against based on gender expression, without an explicit reference to some epithet like "fag," do not get to court in a sexual-orientation-only state, and 2) federal courts, particularly in conservative areas of the country, have made sharp and absurd distinctions between sex, gender stereotyping and sexual orientation and would continue to do so because of the anti-gay shape of federal law, whereas state courts in liberal states with sexual-orientation-only laws do not have the same problem.

In fact, if one looks at cases in which gay plaintiffs were protected from discrimination in the federal courts, one often sees gender expression discrimination without any explicit reference to sexual orientation. Here's an online paper from the American Bar Association that neatly makes the point. Take a look at section III A, which states "Distinctions between "sex" and "gender" have historically been critical to courts' reasoning...." Take a look at Nichols v. Aztec Restaurant Enterprises, discussed a little farther down in the document.

"A homosexual male filed suit against his former employer claiming sexual harassment in violation of Title VII. Plaintiff allegedly was "attacked for wailing and carrying his tray 'like a woman,'" "derided for not having sexual intercourse with a waitress who was his friend," "repeatedly reminded . . . that he did not conform to . . . gender-based stereotypes" when his supervisor referred to him as "she" or "her," and was called names that cast him in female terms.


The Ninth Circuit found that Title VII protected Mr. Nichols. It is unclear where Mr. Carpenter gets his information, and it does not seem to be supported by any evidence.

He then analyzes the example of gender discrimination that Lambda raises, Dawson v. Bumble & Bumble, 398 F.3d 211 (2nd Cir. 2005), in which a gay employee was fired, and she claimed, inter alia, gender expression discrimination. Mr. Carpenter argues that, contrary to Lambda's position, a sexual-orientation-only ENDA would have helped Dawson win her lawsuit because it would remove the federal courts' fear of sexual orientation claims. Interestingly, he quote the following passage from the opinion:

"[s]tereotypical notions about how men and women should behave will often necessarily blur into ideas about heterosexuality and homosexuality." [citation omitted]. Like other courts, we have therefore recognized that a gender stereotyping claim should not be used to "bootstrap protection for sexual orientation into Title VII." 398 F.3d at 218.


In other words, gender expression is a notion related to, but not the same as, sexual orientation, and one does not justify the other. This cuts against the sexual-orientation-only ENDA, not in favor of it.

Mr. Carpenter then compounds his logical problems by stating that the plaintiff could have made a straightforward sexual orientation claim, though he admits that a sexual orientation claim would likely be unsuccessful. It appears as if he is arguing against his own position.

He then claims that a sexual-orientation-only ENDA would have bolstered her gender-stereotyping claim because, "since federal law will now protect gay people from discrimination, courts will not have to worry about gender stereotyping claims "blurring" into sexual orientation claims." This would be a good argument for his position, except for the fact that he admit in the next sentence: "ENDA is not a formal amendment of Title VII, and thus existing precedent about the exclusion of gays from sex stereotyping claims could remain in full force under that law." Thus, he concedes his argument, though he does not admit it.

Mr. Carpenter also argues that Dawson wasn't fired for gender nonconformity, thus undermining Lambda's argument. As he puts it: "How then could it be, as Lambda asserts, that she lost because her employer accepted gays but not gender-benders? There is nothing in the court's opinion that comes even close to saying that. Thus, on the record, Dawson was not even fired for being a gender bender."

However, Mr. Carpenter misrepresents the facts. When one looks at the facts of the case listed at page 222 of the opinion, it becomes obvious that including gender identity/expression in ENDA is crucial. The court acknowledges that co-workers made statements that her style of dress was not acceptable, that she was accused of 'wearing her sexuality like a costume,' implying that she did not conform to gender norms and appeared to be a lesbian." In addition, "Howard and Raymond McLaren repeatedly referred to Dawson, in front of colleagues and clients, by the name 'Donald.' Dawson's haircuit was criticized and they insisted on re-cutting her hair. The court also acknowledges that Dawson's testimony, in the form of affidavits and briefs, clearly connected these incidents with her nonconformity to gender stereotypes. The court, however, uses legal mumbo-jumbo to dismiss this evidence entirely. If ENDA had been in effect with only sexual orientation, these incidents could be similarly dismissed. If gender identity were included in ENDA, they could not be dismissed.

Lambda's main point is not about whether a sexual-orientation-only ENDA would have countered a single argument in a 30 page court opinion. Rather, it is arguing that a sexual-orientation-only ENDA would allow courts to add another argument against Dawson and people like her. It would allow the courts to make a sharp distinction between gender identity/expression and sexual orientation.

While a sexual-orientation-only ENDA would have allowed Dawson to make the argument that sexual-orientation discrimination is no longer permitted, her claim would nonetheless have been doomed. There was no evidence in the case that "sexual orientation" per se was the reason for her dismissal. In fact, the defendant made much of the fact that it employed other gay people. Her contention was that she looked and acted too gay for her employer - too butch and too mannish.

A sexual-orientation-only ENDA, particularly in the context of nonpassage of another bill on gender identity, would have allowed the defendant to argue that she wasn't dismissed because of her sexual orientation, but because of her gender expression. While you surmise that the court would have allowed her to make the Title VII gender stereotyping claim once the fear of sexual orientation claims is gone, another scenario is much more likely. It is more likely that the court would say that the gravamen of her claim is sexual orientation, because the gender stereotype used against her was the stereotype of a lesbian. Therefore, her sexual orientation claim fails because the employer has other gay employees and is not discriminating "because of" sexual orientation.

Beware of thinking too simplistically about civil rights legislation. Title VII has consistently been narrowed over the years by the courts, and it is likely that the same thing would happen with ENDA.

Carpenter argues that Lambda is foolish to argue that will ENDA without "gender identity" will impliedly overrule federal Title VII protections against gender stereotyping implied by the Supreme Court in the case of Price Waterhouse v. Hopkins. He derides Lambda's claims that if gender identity is deliberately stripped from ENDA, "increasingly conservative" courts might interpret this as signalling Congress' desire to eliminate gender-stereotyping claims of the type recognized in Price Waterhouse, thus exposing effeminate gay men and masculine lesbians to discrimination for gender nonconformity rather than sexual orientation. "I suppose anything is possible," Carpenter says, "but this scenario builds wild speculation upon dubious hypothesis." He says that nothing can be determined about Title VII from drafting changes in current bills.

Mr. Carpenter has obviously not looked at the case law. If one looks at federal Title VII cases such arguments are commonplace. Voyles v. Ralph K. Davies Medical Center, 403 F.Supp. 456 (D.C.Cal. 1975).

Smith v. Liberty Mut. Ins. Co., 1973 WL 11513, 11 Fair Empl.Prac.Cas. (BNA) 732 (N.D.Ga. Dec 06, 1973) (NO. 17499), aff'd, Smith v. Liberty Mut. Ins. Co., 569 F.2d 325, 17 Fair Empl.Prac.Cas. (BNA) 28, 16 Empl. Prac. Dec. P 8178 (5th Cir.(Ga.) Mar 13, 1978) (NO. 75-3230); Ulane v. Eastern Airlines, 742 F.2d 1081 (7th Cir.1984), Etsitty v. Utah Tranit Authority, 2005 WL 1505610 (D.Utah Jun 24, 2005). In Voyles, Judge Spencer Williams argued that Congress understood that "sex" did not include "sex reassignment" because legislation had recently been proposed to add "sexual affection and preference" to Title VII. If Congress understood Title VII to include "sexual affection and preference," reasoned Judge Williams, then no such legislation would be necessary. Talk about confusion! Judges don't know the difference between sexual orientation and gender identity, and to think they're going to reason closely about a sexual-orientation-only ENDA is give busy judges who want to clear their dockets more credit than they deserve. Judge are appointed because they are the friends of politicians, not because they graduated at the top of their law school classes.

Mr. Carpenter then makes his biggest legal gaffe: "One thing is clear: federal law does not currently protect transsexuals (as opposed to manly women or effeminate men) from discrimination in private employment based on their transsexuality." He clearly has not looked at the Sixth Circuit opinion in Smith v. City of Salem, 378 F.3d 566 (6th Cir 2004), which ruled that a transgender Title VII plaintiff, dismissed because of her transgender identity, was included within the protection of Title VII sex discrimination. The First Circuit, in Schwenk v. Hartford and Rosa v. Park West, has given indications that it would agree with the Sixth Circuit, and districts courts in the Second and Third Circuits have ruled similarly (Tronetti v. TLC HealthNet Lakeshore Hosp., WL 22757935 W.D.N.Y.,2003 (Sep 26, 2003) and Mitchell v. Axcan Scandipharm, Inc., 2006 WL 456173 W.D.Pa. (Feb 17, 2006), as has the Federal District Court for the District of Columbia and district courts in the Ninth Circuit (Schroer v. Billington, 424 F.Supp.2d 203 D.D.C. (D.D.C. 2006); Kastl v. Maricopa County Community College Dist., 2004 WL 2008954 (D.Ariz. Jun 03, 2004); Fischer v. City of Portland, WL 2203276 D.Or., 2004. Sep 27, 2004; Sturchio v. Ridge, 2005 WL 1502899 (E.D.Wash. Jun 23, 2005))

Mr. Carpenter concludes by saying that, "if Frank is right that the bill can't pass with gender identity included, it's hard to see what a trans-inclusive ENDA would accomplish for the transgendered until members of Congress are "educated" about the matter." How are they going to get educated if specious arguments about transgender inclusion keep being made and accepted by apparently well-meaning people?

P.S. I'd like to note that some have argued (though not Mr. Carpenter) that a sexual-orientation-only ENDA would protect some transsexuals. If the example of Underwood v. Archer Management Services, Inc., 857 F.Supp. 96, (D.D.C. 1994) is reviewed, this conclusion is far from true. "The Complaint is utterly devoid of any reference to the Plaintiff's sexual orientation, much less any discriminatory conduct on behalf of the Defendant discriminating against the Plaintiff's real or perceived preference or practice of sexuality. A conclusory statement that she was discharged on the basis of transsexuality--the medical transformation from being a man to a woman--does not constitute a claim for relief on the basis of being discharged for 'sexual orientation.'"


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This is indeed a well Thought out post.
The only class of people an emasculated ENDA would protect arr those who are straight acting and gender conforming. This point was maid long ago in this discussion, like seven years ago.


This is a big experiment as far as i see it.
you can bet that as long as Hillery is on office (8 years) you won't see anything that approaches an inclusive ENDA this is the last chance for a whole to get an inclusive ENDA passed.

Take Care
Susan Robins

A very thoughtful post that should get wider distribution. It's vital that we pop these balloons of false information quickly.