I was tired; I was wearily correcting the proofs of a long academic article that I have finally, after three years, shepherded to publication, when the news of Justice Souter's resignation came. My article discussed the question of what the current Supreme Court would do with a transgender plaintiff in a case involving the federal sex discrimination statute, known as Title VII. The editors of the Temple Political and Civil Rights Law Journal, who were gracious enough to express an interest in its publication, were likely as weary as I of proofreading the same text over and over a hundred times. Scanning the traditionally-long academic title was enough to cross my eyes: "Transgender Identity, Textualism and the Supreme Court: What is the 'Plain Meaning' of 'Sex' in Title VII of the Civil Rights Act of 1964?"
Sighing, after a long bout of correcting text with eyes that no longer read small print so well, I pulled the proofs back in front of me. I began re-reading, crossing out Justice Souter's name wherever it appeared, along with all of my carefully-researched analysis about what I thought he would do. (Oh, my heart) It was a bit dispiriting. But my depression lifted upon hearing of the new nominee: Judge Sonia Sotomayor. I looked her up and liked what I saw. Of course, I can't include her in my article, which will be at the printer long before Judge Sotomayor's confirmation process is final. But, I can't help wondering, if Judge Sotomayor is confirmed -- making her into Justice Sotomayor -- what would she do with a transgender plaintiff in a Title VII case? What do her prior opinions (of which there are 669 according to a Westlaw search) suggest?
It might seem like a slam dunk in favor of a transgender plaintiff. After all, Judge Sotomayor is a liberal, a Latina woman, and a graduate of Eastern liberal educational institutions. But the calculus isn't so simple. Not by a long shot.
What Opinions of Judge Sotomayor Shed Light On These Questions?
Judge Sotomayor has issued many opinions, but none that address the situation of discrimination against an employee based on transgender status. However, she has written several opinions that discuss gender in the context of discrimination. These could give some hints.
The courts that have denied protection to transgender employees under Title VII have interpreted that statute very narrowly, only admitting protection to a small range of cases. They generally follow the reasoning first put forth in a short 1975 opinion tossing out a discrimination complaint levied by a transsexual woman by Judge George Herbert Barlow, appointed by President Nixon to the Federal District Court of New Jersey. In a nutshell, Judge Barlow said that anti-discrimination statutes should be interpreted narrowly, so that a person fired because of their transsexuality isn't being fired "because of sex," citing the stilted phraseology of the statute. This same reasoning is used without elaboration in an often-cited Seventh Circuit Court of Appeals case on the subject (though without so much as a hat tip to Judge Barlow), Ulane v. Eastern Airlines.
Let's travel forward 30 years in our time machine, to the first federal appellate court to rule in favor of a transgender plaintiff, the Sixth Circuit Court of Appeals. In that 2004 case, the court did not explicitly reject the reasoning above. Rather, it sidestepped those issues, noting that, regardless of what "sex" meant in a technical sense in 1964 when the Civil Rights Act was passed, the Supreme Court has explained (in the 1989 case of Price Waterhouse v. Hopkins) that sex discrimination includes gender discrimination (duh). The Sixth Circuit reasoned that, regardless of what Members of Congress in 1964 might have thought about discrimination against transsexual employees, the basis for discrimination in the 2004 case clearly involved failure to conform to male gender stereotypes. Gender discrimination is wrong whether the plaintiff is transgender or not.
What does Judge Sotomayor think of the Price Waterhouse v. Hopkins doctrine? In 1999, she ruled against Handelsbanken, a Swedish bank that refused to promote a female executive to vice-president, despite her stellar performance in earning millions for the bank as a trader. When she got too insistent after years of stonewalling, they fired her. The male execs thought she was an aggressive "tough broad," and wanted no part of her. In court, they argued that she didn't meet the criteria for a vice-president, but Judge Sotomayor used the Price Waterhouse case to good effect, noting that two of the six principal criteria for promotion to vice president were whether someone could be a proper "role model" for the bank and whether the bank would be "comfortable" with the individual representing the bank. She showed that these code words meant one thing for the men, and another thing for the women, a fact of life that all women face every day. She refused to allow the bank to get away with this double standard. If faced with a transgender plaintiff, and the typical argument by an employer that gender discrimination is wrong when applied to regular people but that the statute means another thing for transgender people, I suspect that Justice Sotomayor would similarly refuse to let an employer get away with a double standard.
Some courts, most notably the Second Circuit, where Judge Sotomayor sits, have said that discrimination based on gender nonconformity cannot be actionable because it comes too uncomfortably close to sexual orientation discrimination, which is perfectly legal under the federal statute, as in the case of Dawson v. Bumble & Bumble. Judge Sotomayor was not involved in the Bumble case, in which a female hairdresser alleged that she was fired because her gender presentation did not conform to her employer's idea of an appropriate female. Judge Rosemary S. Pooler said the following:
When utilized by an avowedly homosexual plaintiff, however, gender stereotyping claims can easily present problems for an adjudicator. This is for the simple reason that "[s]tereotypical notions about how men and women should behave will often necessarily blur into ideas about heterosexuality and homosexuality." 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."
Would Justice Sotomayor agree with her Second Circuit colleagues that gender identity conformity is non-actionable because it's too close to homosexuality? In 1995, in Holmes v. Artuz, she ruled against a correctional facility that had removed a prisoner from his food service job at the prison because he was gay. The correctional facility said that federal law doesn't protect people from discrimination based on sexual orientation. Judge Sotomayor said this:
I note further that plaintiff's allegation that he was removed from a prison job solely because he had declared his sexual orientation may itself state a claim under § 1983 for violation of his equal protection rights. See, e.g., Kelley v. Vaughn, 760 F. Supp. 161 (W.D. Mo. 1991) (denying motion to dismiss on ground that inmate who claims his bakery prison job was terminated solely because of sexual orientation may have a valid equal protection claim); see also Howard v. Cherish, 575 F. Supp. 34, 36 (S.D.N.Y. 1983) (recognizing in dicta that complaint might state claim under § 1983 if it alleged that individual was discriminated against solely because of sexual orientation).... Defendants argue that "the decision to reassign plaintiff from his job in food service is rationally related to a legitimate state interest in preserving order in the correction facility messhall (sic)." (Mem. of Law in Support of Defs.' Motion to Dismiss at 8-9.) However, defendants proffer no explanation of what this "rational relationship" might be. A person's sexual orientation, standing alone, does not reasonably, rationally or self-evidently implicate mess hall security concerns. It is not sufficient to assert, as defendants do in their motion papers, that the prison's exclusionary policy is designed to prevent "potential disciplinary and security problems which could arise from heterosexual inmates" reaction to and interaction with homosexual and/or transsexual innates who serve and prepare food" in the mess hall. ( Id. at 9.) Defendants as yet have offered no evidence that these alleged disciplinary and security problems are real threats to prison life, or that the exclusionary policy is a rational response to such threats if they do exist.
...The constitutional right not to be discriminated against for any reason, including sexual orientation, without a rational basis is an established proposition of law. See, e.g., Anderson v. Branen, 799 F. Supp. 1490, 1492 (S.D.N.Y. 1992) ( citing Woodward v. United States, 871 F.2d 1068, 1076 (Fed. Cir. 1989), cert. denied, 494 U.S. 1003, 110 S.Ct. 1295 (1990) (equal protection analysis of discriminatory acts against homosexuals must be conducted pursuant to rational basis test); High Tech Gays v. Defense Industrial Security Clearance Office, 895 F.2d 563, 574 (9th Cir. 1990) (same). Here, in the absence of any record before the Court, it is not clear why inmates who are openly homosexual are barred from prison mess hall positions. This factual uncertainty compels denial of both defendants' defense[s]....
This 1995 opinion shows an uncanny legal prescience, anticipating the Supreme Court's opinions in Romer v. Evans (1996) and Lawrence v. Texas (2003). Justice Sotomayor could have easily said that the plaintiff loses because sexual orientation isn't protected under Title VII, and she would have been unfortunately right, but she went the extra step. She looked not only at Title VII, but also at the U.S. Constitution, a sign of a constitutionally astute jurist, and much more conscientious than most. My constitutional law professor, a cantankerous curmudgeon if there ever was one, used to tell the story of an alumnus who came up to him at a party and said he hadn't seen a constitutional issue in 20 years of practice, to which the prof replied that this particular lawyer wouldn't recognize a constitutional issue if it jumped up and bit him on the behind. Now, 25 years after starting the practice of law myself, I see what he means. Despite all our public talk about our beloved Constitution, most lawyers don't really get the whole Constitution thing. Judge Sotomayor gets it.
In forming her opinion, Judge Sotomayor dug up the seminal cases on the equal protection clause of which most lawyers, even many experts in the area, are not aware, and correctly stated that the equal protection clause prohibits discrimination based on sexual orientation. She wasn't waiting for Supreme Court backup, which a lot of District Court judges would have done. She was able to find the law and apply it without someone banging on pots and waving a sign. I don't think the argument that "gender identity is too close to sexual orientation" would hold much weight with Justice Sotomayor, especially if the case involved a public employer to which the equal protection clause applies.
I think that Justice Sotomayor would understand that gender discrimination is included within the concept of sex discrimination, and that she would follow the doctrine that she used in the Handelsbanken case: "We are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group, for in forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes."
I think that Justice Sotomayor would understand that discrimination based on gender identity, like discrimination based on sex and sexual orientation, is a violation of the principles of equality on which this country was founded.
I do not think she would countenance the tricks and evasions that lawyers use when they want to narrow the meaning of rights to a small moving target that few can reach.
I have not had the time to read through the hundreds of opinions that Judge Sotomayor has penned during her time on the bench. The two from which I have quoted here are far from the sad situation all too often presented by a transgender employee who has been fired from his or her job because of their transgender identity. Nonetheless, it is obvious to me that her understanding of the mores of sex discrimination and constitutional protection is a broad vision of justice that encompasses more than just the strictest narrow interpretation of the law that should have perished with Plessy v. Ferguson.
Let me quote from a Supreme Court Justice who, if Justice Sotomayor is confirmed, will be sitting somewhat to her right.
Statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.
Scalia, J., writing in Oncale v. Sundowner.
I think she and Justice Scalia will get along just fine.
Dr. Weiss's article, "Transgender Identity, Textualism, And The Supreme Court: What Is The 'Plain Meaning' Of 'Sex' In Title VII Of The Civil Rights Act Of 1964?," will be coming out soon in Volume 18 of the Temple Political and Civil Rights Law Review.