It Isn’t The End Of The World

Did anyone think that the Trump administration would rule anything different?

The ruling flies in the face of court rulings spanning decades going all the way back to the Supreme Court ruling in 1988, back then the court ruled that the word sex meant more than what is between your legs.

The case was Price Waterhouse v. Hopkins and according to Oyez (Oyez (pronounced OH-yay)—a free law project from Cornell’s Legal Information Institute (LII), Justia, and Chicago-Kent College of Law).

Facts of the case
Ann Hopkins worked at Price Waterhouse for five years before being proposed for partnership. Although Hopkins secured a $25 million government contract that year, the board decided to put her proposal on hold for the following year. The next year, when Price Waterhouse refused to re-propose her for partnership, she sued under Title VII for sex discrimination. Of 622 partners at Price Waterhouse, 7 were women. The partnership selection process relied on recommendations by other partners, some of whom openly opposed women in advanced positions, but Hopkins also had problems with being overly aggressive and not getting along with office staff.

In 2000 the Connecticut Commission on Human Rights and Opportunities (CHRO) issued a declarative  ruling that used in part the Price Waterhouse v. Hopkins Supreme Court case.

STATE OF CONNECTICUT

COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES

DECLARATORY RULING ON

BEHALF OF JOHN/JANE DOE

I. INTRODUCTION.
    On January 31, 2000, the Commission on Human Rights and Opportunities (CHRO) received a petition from Attorney Bruce A. Goldberg on behalf of John/Jane Doe (Doe) requesting a declaratory ruling. See Attachment 1 (without exhibits). Under the authority of CONN. GEN. STAT. ' 4-176 and Section 46a-54-122 of the REGULATIONS OF CONNECTICUT STATE AGENCIES, Doe seeks a ruling from the CHRO that the statutory prohibitions against discrimination on the basis of sex encompass discrimination based upon a person’s apparent gender, specifically discrimination against transsexual individuals. Doe requests that the CHRO find such prohibitions in CONN. GEN. STAT. ' '  46a-60(a)(1), 46a-64(a)(1), 46a-64c(a)(1) and 46a-66(a).

    At its regular meeting held on March 9, 2000, the CHRO voted to issue a declaratory ruling on Doe’s petition, but amended it to include the question of whether discrimination against transsexual persons constituted discrimination based on physical and/or mental disability. Despite that amendment, however, the CHRO declines to decide whether discrimination against transsexual persons falls within statutory prohibitions against physical and/or mental disability discrimination, and limits this ruling to the narrower question of sex discrimination, as requested in Doe's Petition.
[…]
IV. DOES DISCRIMINATION AGAINST TRANSSEXUAL PERSONS VIOLATE CONNECTICUT'S STATUTORY PROHIBITIONS AGAINST SEX DISCRIMINATION?
    A. Introduction.
    Doe has asked the CHRO to rule that the statutory prohibitions against discrimination on the basis of sex in CONN. GEN. STAT. ' ' 46a-60(a)(1), 46a-64(a)(1), 46a-64c(a)(1) and 46a-66(a) include discrimination based on apparent gender, specifically discrimination against transsexual persons.1

    In arguing that transsexual persons should find protection from sex discrimination under Connecticut law, Doe has asked the CHRO to reject a traditional, narrow definition of sex in favor or a broader, more inclusive one. Historically, federal courts have held that transsexuals are not protected from sex discrimination. Holloway v. Arthur Andersen & Company, 566 F.2d 659, 662-3 (9th Cir. 1977)(court found that Congress did not intend to expand the definition of sex beyond its traditional meaning, rejecting the argument that the term "sex" was synonymous with the term "gender" in Title VII2); Ulane v. Eastern Airlines, Inc., 742 F.2d 1081, 1085 (7th Cir. 1984)(relying on Holloway, court rejected extending Title VII’s coverage to transsexuals stating that the plain language of Title VII does "not outlaw discrimination against a person who has a sexual identity dis-order").3 Over the years, other courts followed suit.
[…]
In Price-Waterhouse, a woman’s candidacy for partnership was rejected because her employers determined that she failed to conform to socially constructed gender expectations. In its decision favorable to the woman candidate, the Supreme Court determined that, under Title VII, the term "sex" encompasses both sex and gender. For example, the Court wrote, "Congress’ intent to forbid employers to take gender into account in making employment decisions appears on the face of the statute." Id. at 239. "Indeed, Title VII even forbids employers to make gender an indirect stumbling block to employment opportunities." Id. at 242.

    The Court went on to discuss sex stereotyping as another form of sex discrimination. "In the specific context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender." Id. at 250. Hopkins was accused of being "macho", that she "overcompensated for being a woman", was advised to take "a course at charm school", was criticized for swearing "because it’s a lady using foul language" and was "somewhat masculine". Id. at 235. "Her only hope for achieving partnership", her employer recommended, "was to be more feminine, wear makeup, have her hair styled, and wear jewelry." Id. The Court found this sufficient evidence of sex stereotyping: As for the legal relevance of sex stereotyping, we are beyond the day when an employer could evaluate employees by assuming or insisting that they match the stereotype associated with their group, for "'[i]n 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.'"

They also based their ruling on other Supreme Court cases including,

Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 79 (1998).
    The reasoning behind the Court’s ruling in this landmark case seriously undermines the holdings of those federal cases which had previously held that Title VII’s protection does not extend to transsexuals. See also Zalewski v. Overlook Hospital, 300 N.J. Super. 202, 692 A.2d 131 (1996)(male heterosexual’s complaint of sexual harassment by other heterosexual males based on gender stereotyping was actionable as a violation of the New Jersey Law Against Discrimination).

So the Department of Education findings that the Connecticut law violates Title IX uses a very narrow interpretation of “sex” that the courts have rejected.

Okay so where do we go from here?

Well I see the state, towns, and the parties listed in the complaint appealing the ruling all the way to the Supreme Court. I also see there could be a challenge that it is the state’s rights to determine the gender of its citizens and not the federal government.

A caveat…

This only holds true if Trump is defeated in November otherwise he will probably get to fill two more Supreme Court seats and hundreds of lower court judges with his bigoted legal views.