What Does Sex Discrimination Include?

Newspaper article

By: Jane Howard-Martin

Date: December 19, 2002

Source: Howard-Martin, Jane. "What Does Sex Discrimination Include?" USA Today. (December 19, 2002).

About the Author: Jane Howard-Martin holds a degree from Harvard Law School, and has practiced employment law for over a decade.

INTRODUCTION

Growing numbers of people are seeking gender reassignment (sex change) operations. In order to do so, doctors and psychologists insist that a candidate for gender-change surgery live as the desired sex for a year (for example, a man awaiting surgery to become a woman must dress and act like a woman for a year or more prior to surgery and vice versa). Individuals like Julieanne Goins and Reagan Kirkpatrick who underwent the surgery lived like women beforehand, but faced workplace discrimination because they chose to act, dress, and live their lives outside of expected sexual boundaries. Hence, this type of workplace harassment is different from that of the mainstreamed view of sexual harassment. Recent court cases have shown that men and women are facing scrutiny at work based on their life choices. Some of these choices center upon sex change operations, some rest on employers learning that employees cross-dress on occasion (but normally adhere to standard social expectations for their sex), and some cases revolve around individuals who act and "fit" some traditional gender codes, but not enough.

Title VII of the Civil Rights Act of 1964 states that an employer is not allowed to discriminate against someone based on his or her gender—which means that a woman cannot be turned down for a traditionally male position and vice versa. But, this narrow reading of the act allows for discrimination to occur for people who do not fit within traditional gender roles. For instance, men and women who choose to change their biological sexual markers, and persons who do not dress in traditional manners for their gender, do not fit within the boundaries of the legislation.

In the Goins and Kirkpatrick cases, they reported gender stereotyping at work, but as neither had completed their sex change operations, they did not fall into what society considers a woman. Instead, their behavior and lifestyle choices are sometimes considered deviant, and the responses they encountered highlight societal conceptions on how men and women are expected to act. They cited co-worker and management complaints that they were upsetting other employees, and in both cases, the individuals were either fired or resigned. The question of why Goins and Kirkpatrick, and countless others, encountered workplace turmoil about their lifestyle choices remain unanswered.

Other instances of persons encountering workplace harassment mirror the instances of Goins and Kirkpatrick. Ann Hopkins won a court case contesting her failure to be promoted because she did not dress "womanly enough." Here, in much the same manner that Goins and Kirkpatrick received criticism for not dressing and acting like men, Hopkins was told to wear more jewelry, make-up, and dresses, traditional feminine attire.

PRIMARY SOURCE

A number of courts and civil rights commissions have begun to expand the view of what constitutes gender discrimination under Title VII. Instead of limiting the analysis to whether a person was mistreated because of his or her gender, these courts are considering whether a person was discriminated against because he or she failed to conform to societal expectations for how his or her gender looks, lives or acts.

One of the earliest cases involved Ann Hopkins, a female senior manager at a professional accounting partnership. Though the partners deciding on promotions praised her work, they criticized her appearance and demeanor. They noted that she was brusque and used profanity. They decided to delay her candidacy for partnership. One partner explained that to improve her chances for promotion, Hopkins should "walk more femininely, talk more femininely, dress more femininely, wear makeup, have her hair styled and wear jewelry." A court found discrimination because the decision to delay her consideration for partner was based, in part, on comments that reflected sexual stereotyping. The remarks were evidence that her gender played a role in the promotion decision.

Recently, a number of employees have claimed "gender identity" discrimination. Cases are being brought by transgender individuals, cross dressers and effeminate but heterosexual males—all of whom claim they are being discriminated against because they don't fit a stereotype of their gender.

Influenced by the rationale in Ann Hopkins' case, they argue that it is gender discrimination when they are discharged for not acting sufficiently male. While some cases are successful, others have been dismissed. Many courts still hold a traditional view of gender discrimination.

Since the scope of Title VII is unclear, a number of states and municipalities have passed laws or ordinances specifically prohibiting discrimination on the basis of gender identity or gender expression. The cities of Portland, Tucson, New Orleans, and Iowa City and the state of Rhode Island are among the jurisdictions prohibiting gender identity discrimination.

However, the federal government and most jurisdictions still do not prohibit discrimination on the basis of gender identity.

One of the biggest barriers to such legislation is the restroom issue. Although most restrooms have stalls that provide privacy, many Americans are uncomfortable with the idea of sharing a restroom with someone of the opposite sex. Without broad public support, legislation cannot be passed.

Interestingly, corporate America may lead the trend to prohibit gender identity discrimination. Several large corporations have amended their nondiscrimination policies to include a prohibition on discrimination based on gender identity. According to the Human Rights Campaign Foundation, these companies include Apple Computers, Lucent Technologies, and Xerox.

One reason may be that companies doing business in a jurisdiction that prohibits gender identity discrimination already have to comply in that locality, and it is easier to have one policy for all of the corporate locations.

Another reason may be the recognition that talent comes in many different packages. By creating a more inclusive environment, these companies are attracting the broadest cross section of applicants and retaining valued employees, which gives them a competitive edge. Still other companies may have decided that as a matter of corporate values, they are more concerned with an employee's work than with his or her dress, appearance or out-of-work activities.

SIGNIFICANCE

Recent legislative debates concerning same-sex marriage and heightened media attention about transgendered persons, cross-dressers, and sex change operations have prompted industry and communities, as well as state governments to reexamine their policies concerning sex discrimination. Yet, even though some states and industries have reworded their sex and gender discrimination policies to attempt to show a balance between societal beliefs, events, and codes, occurrences of gender discrimination still occur. Hence, the question still permeates society on what really constitutes discrimination based upon sex.

Discrimination in it's most extreme form, hate crimes, are also a problem for people in unconventional gender roles. A study from the Harvey Milk Institute in San Francisco found that transgendered people living in the United States today have an estimated eight in 100 chance of being a victim of murder, compared to the general population risk of about five in 100,000 persons. Publicized cases, such as the murder of twenty-one-year-old Brandon Teena in 1993 on which the film "Boys Don't Cry" was based, have helped bring the issue into the public consciousness. By 2003, a national opinion poll commissioned by the Human Rights Commission, a Washington, D.C.-based organization that campaigns for equal rights for homosexual, bisexual, and transgendered people, showed that the majority of Americans are familiar with the term transgender and support the inclusion of transgendered people in anti-discrimination laws.