Transsexuals who lose their jobs because of their medical
condition traditionally do poorly when they seek relief through
the courts. With a few exceptions, a transsexual who is fired
for having Gender Identity Disorder and following a recognized
course of medical treatment [2.], will not be able to win back
his job by seeking relief under federal or state statutes. The
vast majority of litigation in the area of transsexual employment
discrimination occurs when a pre-operative transsexual starts to
live in the social role of a female and goes to work in that
social role. A pre-operative transsexual is a transsexual who
has not yet had the Sex Reassignment Surgery (SRS); a post-
operative transsexual is a transsexual who has had SRS.
For purposes of this paper a transsexual will be defined as
a person who has Gender Identity Disorder which is a "persistent
discomfort about one's assigned sex or a sense of belonging to
the other sex . . . [and] . . . a desire to be . . . of the
other sex" [3.]. A recent case explained transsexualism in this
manner, "Medically, the term is generally considered to be a
condition where physiologically normal [emphasis added]
individuals experience discontent being of the sex to which they
were born and have a compelling desire to live as persons of the
opposite sex. The discomfort is usually accompanied by a desire
to utilize hormonal, surgical and civil procedures to live the
sex role opposite to which they were born. They are thus persons
whose anatomic sex at birth differs from their psychological
sexual identity. A transsexual is not homosexual in the true
sense as the latter seek sexual gratification from members of
their own sex as members of that sex, whereas transsexuals'
erotic attractions are generally with persons of their own
anatomic sex, but viewing themselves as members of the opposite
desired sex. Not to be confused with transsexuals are
transvestites, who are persons content with their own sex and are
heterosexual, but who dress as members of the opposite sex for
sexual arousal [4.]." As to sexual orientation the author
disagrees; about half of all transsexuals are sexually attracted
to members of their newly assigned sex.
This paper will look at the case histories under various
legal theories both federal and state, critique the analysis and
interpretation used by the courts in applying those statutes, and
offer possible short and long term strategies for protecting the
right of a transsexual to follow a recognized medical treatment
and remain employed. For a transsexual the importance of being
able to remain employed has been recognized as one of the most
difficult of the problems he faces in resolving his gender
dysphoria. ". . . . the reason we have chosen the title 'Law and
Employment Policy' is because employment is one of the biggest
problems that our community, the transgendered community, does
have [5.]."
FEDERAL LAWS
Equal Protection
Claims for equal protection [6.] for transsexuals are
difficult to uphold because the courts generally use a rational
basis analysis [7.]. The constitutional validity of a law that
excludes transsexuals from protection afforded other groups may
be subject to a challenge under the equal protection clause of
the Fifth or Fourteenth Amendments [8.]. There are three levels
of review used by the courts to analyze equal protection claims:
"strict scrutiny," "intermediate scrutiny," and "rational basis."
[9.] Strict scrutiny [10.], the highest tier of review, is
applied whenever a governmental regulation imposes on fundamental
individual rights [11.] or certain classes of individuals which
comprise a suspect class. [12.] The lowest level of review in
analyzing equal protection claims is the rational basis test
[13.], which is used when the challenge does not qualify for
stricter review [14.] Intermediate scrutiny is applied to cases
where the statute imposes on rights that are not considered
fundamental [15.], and where a class of people can not be
considered a "suspect class." [16.] Since a court's
determination of the applicable standard of review is often
dispositive with respect to the underlying issues, the standard
of review applied by a court is of the utmost importance. [17.]
In order for a court to apply a strict scrutiny analysis it would
have to find that transsexuals are a suspect class and that
transsexuals have an immutable characteristic that is an
"accident of birth [18.]."
An unsuccessful attempt was made in Holloway v. Arthur
Anderson and Company [19.], to apply an equal protection argument
for transsexuals. Holloway argued that if Congress had chosen to
expressly exclude transsexuals from the coverage of Title VII
that there would be a violation of equal protection. The court
held that they could not "conclude that transsexuals are a
suspect class," because transsexuals are, "not necessarily a
'discrete and insular minority'." Nor, "has it been established
that transsexuality is an 'immutable characteristic determined
solely by the accident of birth' like race or national origin.
[20.]" Based on that conclusion the court held that they only
needed to apply a rational basis analysis to the exclusion of
transsexuals from Title VII. The court then went on to apply a
rational basis analysis to Title VII holding that "it can be said
without question that the prohibition of employment
discrimination between males and females . . . is rationally
related to a legitimate governmental interest. [21.]" The court
never did analyze what the legitimate governmental interest in
excluding transsexuals from the term sex in Title VII's
prohibitions was. The court did indicate in dicta that
"transsexuals claiming discrimination because of their [genetic]
sex, male or female, would clearly state a cause of action under
Title VII [22.]." This reasoning was latter accepted in James
v. Ranch Mart Hardware, Inc. [23.], where James alleged that a
genetic female who became a male would not have been fired.
Ranch Mart will be discussed under the section 'Transsexualism as
a Disability'.
The Holloway court's conclusory treatment of whether or not
transsexuals are a suspect class ignores a great body of medical
research into what causes transsexualism; the underlying rational
of the court must have been that one chooses to be a transsexual.
No one wakes up one day and chooses to change her sex. Sex
reassignment surgery is viewed as medically necessary to return
the pre-operative transsexual to the sex that she identifies
with. The medical community has reached a consensus in treating
transsexualism: radical surgery is the only successful treatment.
[24.] There are several studies that give credence to the theory
that transsexualism is biological in its etiology. In the most
recently announced study a neurobiologist at the Netherlands
Institute for Brain Research in Amsterdam announced the results
of an 11 year study. Dr. Swaab performed autopsies of
transsexual brains. His studies showed that the male to female
transsexual brains had a BSTc (the central subdivision of the
bed nucleus of the stria terminalis) that was much smaller than a
typical male and was in fact approximately the same size as would
be expected of a typical woman. Dr. Swaab has stated that his
research "shows that transsexuals are right. Their sex was
judged in the wrong way at the moment of birth because people
look only to the sex organs and not to the brain." [25.] Dr.
Swaab chose to study the BSTc because researchers know that it
plays a pivotal role in sexual behavior. Although five of the
six transsexuals studied had been castrated and all had undergone
estrogen treatment to feminize their bodies, the researchers
didn't think that these procedures affected the size of the brain
region. "We know from animal experiments that in adulthood you
cannot change the size of the nucleus using sex hormones," said
Swaab. "You can do that only in development." [26.] A
comparison with brains of men who had their testes removed as a
treatment for prostate cancer showed that these non-transsexuals
had a BSTc in the normal male size range; a study comparing pre-
and postmenopausal women's brains, meanwhile, showed that the
drop in estrogen levels following menopause also did not change
the size of the BSTc structure. These findings led Dr. Swaab to
believe that the BSTc size is programmed during fetal and
neonatal development, perhaps as a result of an interaction
between sex hormones and the developing brain and is probably not
the result of parental or social pressures after birth.
If transsexuals were determined to be members of a suspect
class then legislation that discriminates against them would be
subject to a strict scrutiny analysis. The Supreme Court has
identified three factors that aid in determining whether a class
qualifies as a suspect class, a history of purposeful
discrimination [27.], gross unfairness [28.], and political
powerlessness [29.].
Transsexuals have been purposefully discriminated against.
One need to go no further than to look at the cases cited in this
paper which deal with transsexual employment discrimination.
Additionally one may refer to Senator Jesse Helm's remarks in
requesting the exclusion of transsexuals from the American's with
Disabilities Act [30.]. If there were no purposeful
discrimination against transsexuals there would be no need to
have a yearly law conference on transsexual employment
discrimination [31.].
Next the Court will consider whether the discrimination
against transsexuals is 'grossly unfair.' "In giving content to
this concept of gross unfairness, the Court has considered (1)
whether the disadvantaged class is defined by a trait that
'frequently bears no relation to ability to perform or contribute
to society,' Frontiero, 411 U.S. at 686, 93 S.Ct. at 1770
(plurality); (2) whether the class has been saddled with unique
disabilities because of prejudice or inaccurate stereotypes; and
(3) whether the trait defining the class is immutable." [32.]
There is plainly no contention by anyone that transsexuals cannot
perform or contribute to society. The keyboard artist Wendy
Carlos is a transsexual [33.]. There are several transsexual
lawyers in the United States [34.]. In a rather remarkable
development, even England's Royal family has been helped by a
transsexual, it was discovered that the Queen Mother's hip
surgeon was a transsexual. Clearly transsexuals are capable of
performing and contributing to society.
The irrelevance of transsexualism to the quality of a
person's contribution to society also suggests that
classifications based on transsexualism reflect prejudice and
inaccurate stereotypes the second factor to be considered in
determining "gross unfairness." The final factor to be
considered is the immutability of the characteristic.
As said earlier in this paper no one ever chooses to be a
transsexual. For a discussion on the immutability of
transsexualism see the discussion supra on Dr. Swaab's research
on transsexual brains. Perhaps, paraphrasing a question a recent
court asked in determining the immutably of homosexuality, it
might be equally appropriate to ask non-transsexuals if they
would like to change their sex [35.].
If the courts will allow the most recent studies to be
considered as evidence that transsexualism is actually an
immutable characteristic it might be possible to expand the
constitution's equal protection to cover transsexuals. [36.] As
one studies the phenomenon of transsexualism one begins to
realize that these individuals really are trapped in the wrong
body and were actually the opposite sex that they were assigned
at birth. For all the foregoing reasons transsexuals meet all
three of the requirements for their discrimination to be
considered 'grossly unfair.'
Finally in determining whether a group is a suspect class
the Supreme Court will consider whether the group in question is
politically powerless. Political power may be measured in many
different ways. To date there are no known transsexual
legislators. There are no known transsexual judges.
Transsexuals have been specifically excluded from local
legislation [37.] and national legislation [38.]. Therefore
transsexuals are a politically powerless group.
In summary transsexuals have a history of purposeful
discrimination against them, they have experienced grossly unfair
discrimination and they are politically powerless. Transsexuals
should be considered a suspect class and any law applied in a
discriminatory fashion to them should be reviewed under the
strict scrutiny standard. The reality is that the court is
reluctant to find more suspect classes and unless the political
make-up of the Court changes it is not likely that the Court will
find that transsexuals are a suspect class.
The Court may however be more willing to find that
transsexuals are a quasi-suspect class and invoke an intermediate
scrutiny for legislation that discriminates against transsexuals.
Intermediate scrutiny is not as difficult for a government entity
to meet but it is not as easy a standard to meet as the mere
rationality test [39.]. The Court has only applied the
intermediate standard of review to classifications based on
gender [40.] and illegitimacy [41.]. The great difficulty in an
intermediate scrutiny analysis is that the Court has never
specifically said that it is using intermediate scrutiny analysis
and it is a bit circular in nature.
Legislation which discriminates between transsexualism and
other forms of medically diagnosed treatable diseases violates
the Equal Protection Clause and triggers intermediate scrutiny
because legislation like the Americans with Disabilities Act and
the Rehabilitation Act of 1973 legislate different treatment to
people with medically diagnosed and medically treated diseases
and place transsexuals into a different class (ie those not
covered by the statutes) solely on a basis wholly unrelated to
the object of those statutes. In applying the Equal Protection
Clause the "Court has consistently recognized that the Fourteenth
Amendment does not deny to States the power to treat
different classes of persons in different ways.
Barbier v. Connolly, 113 U.S. 27, 5 S.Ct. 357, 28 L.Ed.
923 (1885); Lindsley v. Natural Carbonic Gas Co., 220
U.S. 61, 31 S.Ct. 337, 55 L.Ed. 369 (1911); Railway
Express Agency v. New York, 336 U.S. 106, 69 S.Ct. 463,
93 L.Ed. 533 (1949); McDonald v. Board of Election
Commissioners, 394 U.S. 802, 89 S.Ct. 1404, 22 L.Ed.2d
739 (1969). The Equal Protection Clause of that
amendment does, however, deny to States the power to
legislate that different treatment be accorded to
persons placed by a statute into different classes on
the basis of criteria wholly unrelated to the objective
of that statute. A classification 'must be reasonable,
not arbitrary, and must rest upon some ground of
difference having a fair and substantial relation to
the object of the legislation, so that all persons
similarly circumstanced shall be treated alike.'
Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40
S.Ct. 560, 561, 64 L.Ed. 989 (1920). [42.]
In a rational basis analysis a legislative classification
need only have a rational relationship to any legitimate
governmental interest in order to comply with the equal
protection guarantee; there is a strong presumption of validity
of classification by the government. Although the courts do give
a great deal of deference to the legislature "courts should
strike down laws under the rationality test when it is clear that
there is no purpose for a classification other than denying a
benefit (even if it is not a fundamental right) to a group (even
a non-suspect classification) when the denial of the benefit can
serve no possible purpose other than the desire to discriminate
against a group which is disfavored by the legislature. [43.]"
In 1989 the U.S. Senate amended the ADA to specifically exclude
transsexuals. The discussion of that amendment is on pages 24-
28. Based on the fact that the only basis for the exclusion of
transsexuals was that it served the purpose of discriminating
against a group that Senator Helms disfavored it would be
possible to make a good argument that the amendment is
unconstitutional even under a rationality test.
An example of the type of gross discrimination a transsexual
must encounter before her discrimination will be found unlawful
is Doe v. United States Postal Service [44.]. In Doe the court
denied a motion by the USPS to dismiss for failure to state a
claim where Doe had alleged, among other claims, that the Postal
Service had violated her equal protection right to employment
with the federal government. Doe was a pre-operative transsexual
(male to female) who claimed that the USPS denied her a promised
job when she informed the USPS of her intention to undergo Sex
Reassignment Surgery. Doe was offered a temporary (six months)
Senior Clerk Typist position. She was interviewed and presented
herself as a male, which she was at that time. [45.] After Doe
learned that the USPS would withdraw their offer of employment
she offered to serve the entire employment term as a male and the
USPS refused to reinstate the offer, based solely on their
opposition to her intention, after her employment was up, to
undergo SRS. On the issue of whether Doe had alleged that the
USPS had violated her equal protection right to a job with the
federal government the USPS asserted that "it is rationally
related to a legitimate governmental interest for 'an employer to
treat a transsexual in the manner the Postal Service did here.
[46.]'" But the court found that "No government interest has
been identified . . . and this issue is properly a question to be
decided. [47.]" Doe was highly unusual in that it is rare that a
transsexual is able to go back to living in the birth assigned
sex once that individual has transitioned to the corrected sex.
Sex, More Than Chromosomes
Transsexuals have often argued that they should be included
in the term sex in the remedial employment discrimination
statutes that prohibit discrimination based on sex. Their
argument has been that what most people consider a rather simple
determination, what sex are you, is actually very complicated and
should be determined by more than chromosomal factors [48.]. The
courts have not been persuaded by this argument.
A good example of the way courts have treated the "sex is
more than chromosomes" argument is found in Ulane v. Eastern
Airlines, Inc. [49.] Karen Ulane was [50.] a pilot for Eastern
Airlines who was hired as a male in 1968. She worked for the
airline until 1980. In 1980 she took a leave of absence from her
job, underwent sex reassignment surgery, then reported back to
work. Eastern fired her shortly after she went back to work. The
court in Ulane refused to understand that sex is more than
chromosomes and wrote that "if the term 'sex' as it is used in
Title VII is to mean more than biological male or female, the new
definition must come from Congress [51.]." The court was
unpersuaded by the lower court opinion of Judge Grady [52.] that
formed the basis for the appeal in Ulane.
Prior to my participation in this case, I would have
had no doubt that the question of sex was a very
straightforward matter of whether you are male or
female. . . . After listening to the evidence in this
case, it is clear to me that there is no settled
definition in the medical community as to what we mean
by sex. [53.]
The appeals court refused to approve the lower courts finding
that sex could be defined by the scientific community, "We do not
believe that the interpretation of the word 'sex' as used in the
statute [Title VII] is a mere matter of expert testimony or the
credibility of witnesses produced in court [54.]."
A different approach was used by a transsexual who brought a
Title VII action in Sommers v. Budget Marketing, Inc. [55.]
Sommers' alleged that she had been discriminated against because
of her status as a female with the anatomical body of a male and
that the fact that she had not yet had sexual conversion surgery
should not prevent her from being classified as female. Budget
moved for dismissal on the grounds that Title VII does not cover
transsexuals and the court treated Budget's request as a summary
judgment request. Budget claimed that they dismissed Sommers
because she misrepresented herself as an anatomical female on her
job application. Budget further alleged that the
misrepresentation led to a disruption of the company's work
routine in that a number of female employees said they would quit
if Sommers were allowed to use female restroom facilities [56.].
The court dismissed Sommers claim under Title VII and held
that "for the purposes of Title VII the plain meaning must be
ascribed to the term 'sex' in the absence of clear congressional
intent to do otherwise. Furthermore, the legislative history does
not show any intention to include transsexualism in Title VII."
However, it is interesting that the court was troubled by
Sommers' dilemma:
We are not unmindful of the problems Sommers faces. On the
other hand, Budget faces a problem in protecting the privacy
interests of it's female employees. According to affidavits
submitted to the district court, even medical experts
disagree as to whether Sommers is properly classified as
male or female. The appropriate remedy is not immediately
apparent to this court. Should Budget allow Sommers to use
the female restroom, the male restroom, or one for Sommers'
own use?
Perhaps some reasonable accommodation could be worked out
between the parties. [57.]
The problem with the courts' analysis in "sex is more than
chromosomes" cases are that the courts are applying too narrow a
construction to the interpretation of a remedial statute. An
analogy may be helpful to illustrate to the courts why
transsexuals should be covered in the term "sex" in Title VII. If
a non-sabbatarian changes his religion to become a sabbatarian
[58.] and is fired for making that change the courts have not had
any trouble finding that he was discriminated against on the
basis of religious discrimination. [59.] In the sabbatarian cases
the courts have not focused on the question of whether or not
Title VII was passed to protect a particular religion, no matter
how radical or on the fringe it might be, but have focused on the
general protection for religion. The courts should not focus on
whether or not the change is specifically protected, but on
whether the category is protected. There is much more to sex than
xx or xy chromosomes.
Since 1977, when the court decided Holloway, there have
been some studies from the scientific community that suggest
transsexualism may have some of its roots in genetics [60.]. As
our understanding of the concept of sex is broadened by the
scientific community we need to apply that broader understanding
to the coverage of sex in remedial statutes like Title VII. Most
of the cases dealing with transsexuals and Title VII have been
decided by summary judgment against the transsexual with the
courts making rather conclusory statements that, since there is
no legislative history to support Congress' intent to have the
term sex cover transsexuals, therefore transsexuals are not
covered under Title VII. What the courts should instead be doing
is allowing the case to go to trial to decide if the underlying
discrimination is based on sex, as sex is now understood, or is
for another reason.
There is one recent case [61.] where a transsexual's Title
VII claim was able to withstand a motion to dismiss. Barbara
James was a pre-operative transsexual who was discharged from
Ranch Mart Hardware, Inc. for being an anatomical male working
and dressing as a woman. Ranch Mart asked for a judgment on the
pleadings, or in the alternative, a motion to dismiss. The court
held that, "Plaintiff cannot state a claim for discrimination
based upon transsexualism because employment discrimination based
upon transsexualism is not prohibited by Title VII." [62.] The
court also held that James "cannot state an actionable claim
under Title VII for discrimination based upon her sex as a
female. . . . [because] Congress did not intend to ignore
anatomical classification and determine a person's sex according
to the psychological makeup of that individual. [63.]" But James
made a unique claim. She alleged that "even though defendant
terminated her (a male, working and living as a female), it would
not have terminated one of its female employees, living and
working as a male." [64.] On this claim the court denied Ranch
Mart's motion to dismiss and went on to say, "Whether plaintiff
can prove this allegation remains to be seen." [65.] As it turned
out James was unable to bear the burden of proof in her claim
[66.].
Transsexualism as a Disability
Since transsexualism is a medical condition that has a
recognized course of treatment and since transsexuals were being
terminated, or not hired, because of their medical condition it
seems logical that transsexualism could be construed as a
handicap and come under the protection of the remedial statutes
that protect handicapped individuals. The lone bright star in
federal statutes for transsexuals seeking relief for employment
discrimination under the disability laws was the Rehabilitation
Act of 1973, however that relief was short lived.
One case that found in favor of a transsexual as a
handicapped person was Doe v. United States Postal Service [67.].
This is the same case that was discussed under the equal
protection analysis. Doe advanced several different claims, among
them was a claim that as a transsexual she was handicapped and
was covered by the Rehabilitation Act of 1973. The court upheld
the handicap claim, of Doe, against a motion by the USPS to
dismiss for failure to state a claim upon which relief could be
granted. The court found that, "the language of the
Rehabilitation Act and of the accompanying regulations is broadly
drafted, indicating a legislative intent not to limit the Act's
coverage to traditionally recognized handicaps. [68.]" The USPS
counter argument was that since a transsexual's condition may be
alleviated by hormones and gender reassignment surgery the
impairment was short-term and therefore not covered by the Act.
However the court said that "the mere fact that treatment may be
available does not automatically remove an afflicted individual
from the scope of this statute." [69.] In 1992 Congress amended
the Rehabilitation Act to exclude transsexuals [70.]. To
understand the reasons for the exclusion of transsexuals it is
necessary to look at the legislative history of the American's
With Disabilities Act of 1990.
In 1990 Congress passed the American's with Disabilities Act
(ADA). The ADA contains an explicit section [71.] stating that
transsexualism and gender identity disorders are not, without a
physical causation, considered disabilities. This section was put
in at the request of Senator Jesse Helms. [72.] The exclusion
clause adopted into the Rehabilitation Act is identical to the
clause in the ADA. Recall that the court upheld in Doe v. United
States Postal Service [73.] the equal protection argument made by
Doe. Recall also that the USPS advanced no rational argument for
denying Doe employment other than that she was a transsexual. The
assertion by Senator Helms that the ADA would cover a transsexual
is correct.
There has never been a case that has challenged the
constitutionality of the exclusion clause but there should be.
Recall that in a rationality test for an equal protection
challenge to legislative action that the courts should strike the
exclusion down where it is clear that there is no purpose for the
classification other than denying a benefit to a group when the
denial of the benefit can serve no purpose other than to
discriminate against a group which is disfavored by the
legislature [74.]. Here, based on the exchange between Senator
Helms and Senator Harkin, it is abundantly clear that
transsexuals were classified into a group (see Fns 70 and 71) for
the sole purpose of denying a benefit to them and the denial of
that benefit serves no purpose other than to discriminate against
a group that is disfavored by Senator Helms.
It may be argued that transsexuals should be excluded
because employers should not have to accept employees whose
presence might disrupt the workplace but that concern can be
easily taken care of. Employers need only make a reasonable
accommodation; a concept that is well defined by the handicap
antidiscrimination statutes and the case law decided under those
statutes. On the other hand it may be argued that transsexualism
is a perversion like the other categories it is listed with in
the exclusion clause. But of the disorders listed in the
exclusion clause only transsexualism is a disorder that, by its
very nature, leads to a recognized course of medical treatment. A
transvestite may be a transvestite and not seek medical
treatment. A transsexual, by definition, will seek medical
treatment to alleviate her condition. It seems disingenuous to
include transsexuals in a grouping of disorders that normally do
not seek medical treatment. Can there be any logical reason for
inclusion of transsexuals in such a group?
A possible argument for a rational basis for not considering
transsexuals as disabled is the stigmatizing effect that being
declared "disabled" may have on the group. This benign argument
may seem appealing. It ostensibly takes in to account the
feelings of transsexuals and claims to have the transsexual's
best interests at heart. The same logic has been advanced
regarding the issue of affirmative action. Those who are the
beneficiaries of affirmative action will actually be hurt by it
because they will be singled out for special treatment and those
not getting the special treatment will think that they couldn't
actually meet the job requirements without help. The issue of
whether the transsexual exclusion clause is constitutional could
be decided either way. State government laws have given
transsexuals little more protection.
STATE DISABILITY LAWS
Some cases dealing with state non-discrimination laws have
found against the transsexual. In Sommers v. Iowa Civil Rights
Commission [75.], the Iowa Supreme Court upheld an Iowa Civil
Rights Commission's interpretation of the Iowa Civil Rights Act
statute [76.], prohibiting discharge of an employee because of
that employee's sex or disability, because the statute did not
prevent discrimination against transsexuals [77.]. The court was
not persuaded by Sommers' argument that sex should include
transsexuals or that transsexualism was an impairment that
substantially limited her ability to work. In ruling on Sommers'
disability claim the court concluded that "transsexualism is
more likely to have an adverse effect because of attitudes of
others toward the condition [78.]" than the condition itself
limiting her ability to work. This is the same plaintiff involved
in Sommers v. Budget Marketing, Inc. [79.] There have been other
local cases that have found for the transsexual's disability
claim.
In Underwood v. Archer Management Services, Inc. [80.], the
court held that a post-operative transsexual employee, who
alleged she was dismissed because her employer felt that she
retained some masculine traits, stated a claim of personal
appearance discrimination under the D.C. Human Rights Act [81.].
However, the court dismissed Sommers claims of discrimination on
the basis of sex and sexual orientation. The court said, in
ruling on Sommers claim for sex discrimination, that federal
cases interpreting Title VII were to be used as authority in
interpreting the D.C. statute [82.].
In dismissing the sexual orientation discrimination claim,
the court noted that "the DCHRA defines 'sexual orientation' to
mean 'male or female homosexuality, heterosexuality and
bisexuality, by preference or practice. [83.]" The court went on
to state, "courts have firmly distinguished transsexuality from
homosexuality. [84.]"
A recent Washington state supreme court case, Doe v. Boeing
[85.], held that while transsexualism is an abnormal condition
the particular plaintiff was not handicapped under the applicable
Washington statute because she was not discharged because of her
condition. Doe, a pre-operative male to female transsexual,
alleged that she was handicapped under Washington's Law Against
Discrimination [86.] because she was gender dysphoric and that
Boeing failed to reasonably accommodate her handicap. Boeing
defended the action saying that Doe was not handicapped under
Washington law and that Boeing had reasonably accommodated her by
allowing her to dress in unisex clothing. Boeing claimed that the
real reason Doe was fired was because she violated Boeing's
directives not to appear excessively feminine at work until after
her sex reassignment surgery.
The court held there must be findings of fact on two
elements before it can be determined if a person is handicapped
under Washington's Law Against Discrimination, "both the presence
of a handicapping condition and evidence that this condition was
the reason for the discharge. [87.]" In ruling on the first
element, the court held that though Doe's gender dysphoria was an
abnormal condition there was no evidence that Doe had been
discharged because she was a transsexual. The court concluded
that Doe had been discharged because she had failed to comply
with Boeing's dress code policy on pre-operative transsexuals
[88.]. Therefore since Doe did not meet the second element the
court held that "Doe is not handicapped for the purposes of
pursuing an unfair practice claim under RCW 49.60.180. [89.]"
In ruling on the Doe case the Washington Supreme Court held
that "the scope of an employer's duty to accommodate an
employee's condition is limited to those steps reasonably
necessary to enable the employee to perform his or her job.
[90.]" Since Boeing allowed Doe to dress in unisex clothing and
since her own doctor had testified that unisex clothing was an
acceptable style to comply with her medical need to live in her
new gender role the court concluded, "that Boeing had reasonably
accommodated Doe's abnormal condition. [91.]"
But there is a state case from Florida that illustrates how
state disability laws can be successfully applied in cases of
transsexual employment discrimination.
In Smith v. City of Jacksonville, (Case No. 88-5451 Fla.
Div. Admin. Hearings 1991) Belinda Joelle Smith [92.], a pre-
operative male to female transsexual, was discharged as a
correctional officer because the city felt that as a known
transsexual Smith would not be able to command the respect of her
co-employees and intimates and would discredit the City. The
Civil Service Board upheld the City's decision to dismiss Smith.
On appeal, the Administrative Hearings Officer recommended
that the Human Relations Commission order reinstatement, award
back pay and attorney's fees and costs. The Hearings Officer
ruled that Smith had been subjected to unlawful employment
discrimination in violation of the Florida Humans Rights Act
[93.]. The issue before the Hearings Officer was whether
transsexualism constitutes a handicap under Florida law. The
Hearing Officer concluded that:
based upon the plain meaning of the term "handicap" and the
medical evidence presented, an individual with gender
dysphoria is within the coverage of the Human Rights Act of
1977 in that such individual "does not enjoy, in some
manner, the full and normal use of his sensory, mental or
physical faculties . . . [94.]"
The Hearing Officer also concluded that "apart from [an]
actual handicap, Smith was handicapped because of the attitudes
with which she was confronted by her employer. [95.]"
The protection transsexual's may get from state disability
laws is very dependent on the wording of the statute. State laws
passed based on the Rehabilitation Act of 1973 before the 1993
transsexual exclusion amendment should protect transsexuals. As
shown by these cases, where there hasn't been a specific
exclusion, transsexuals may be covered by state disability laws.
SHORT TERM STRATEGY
The lower federal courts and the United States Congress have
effectively closed off any chance a transsexual has of making a
case under federal law but there are some states where
transsexuals have been able to obtain relief under state
rehabilitation laws. In the end however the best course would be
to not have to litigate the issue in the first place. Since the
vast majority of discharges occur when the pre-operative
transsexual begins to live and work in the opposite sex the best
option available for the transsexual would be to first educate
the employer before showing up to work in the new gender role.
One way to educate the employer would be to show the employer how
they can accommodate the transsexual and maintain an efficient
workplace.
A good educational resource is a handbook published by the
International Foundation for Gender Education (IFGE) titled "Why
Is S/He Doing This To Us?". This handbook was approved by the
Employment Law Committee of the First International Conference on
Transgender Law and Employment Policy, held in 1992 in Houston,
Texas. The IFGE handbook is written in laymen's terms and takes
the reader through the transsexual phenomenon; answering
questions from "Just what is it we are dealing with here?" to
"What do we do about the bathroom issue?". When an employer is
faced with a completely new and unique situation she needs
practical advice on how to deal with it. Its no wonder that many
employers have opted to discharge the employee rather than try to
reinvent the wheel, a wheel they don't even understand. Even in
Doe v. Boeing, Boeing had a policy in place to deal with
transsexuals. The only reason Doe was fired was because she
violated that policy. One of the reasons for Boeing's policy was
to help employees accept the transsexual on a gradual basis.
Besides educating the employer the employees need to be
educated so that an efficient workplace may be maintained. An
educational resource for co-workers is a handbook published by
the International Conference on Transgender Law and Employment
Policy titled, "What Is S/He Doing?". The handbook uses a story
vignette to explain transsexualism with explanations inserted at
various points in the narrative. Again one of the major sticking
points in the transsexual transition, what bathroom will s/he
use, is covered. Through education and cooperation a transsexual
stands a better chance of retaining her job than trying to win it
back through litigation. But not all employers are willing to be
reasonable.
LONG TERM STRATEGY
There are two long term strategies available for the
transsexual. One is to seek to overturn on constitutional grounds
the laws that specifically exclude her from coverage. The other
is to seek to have laws passed to protect the transsexual.
Currently the transsexual community is following the second
course and in the end that may be the more rewarding avenue.
A transsexual political action committee has been formed,
It's Time America. The committee was formed after the third
International Conference on Transgender Law and Employment
Policy. Committee members and the executive Director of the
conference have been to Congress to lobby for inclusion in ENDA
(Employment Non-Discrimination Act) an Act meant to cover sexual
orientation that currently specifically excludes transsexuals.
Six states [96.] and the District of Columbia [97.] have
passed laws protecting persons from employment discrimination
based on sexual orientation. Most of these statutes include
"gender" as a protected class and some of them include both
"gender" and "sex" as protected classes. There is usually a
preamble to the statute saying that it is the intent of the
statute to apply to all persons, in order to ensure equal
opportunity for every citizen.
However, the Underwood [98.] case clearly highlights the
need to specifically include transsexuals in the definitions of
sexual orientation legislation [99.]. Transsexuals are not
included within the traditional definitions of sex, gender or
sexual orientation.
An excellent example of how sexual orientation can be
defined to include transsexuals is the Minnesota non-
discrimination statute [100.]. Subdivision 45 defines sexual
orientation as:
"Sexual orientation" means having or being perceived as
having an emotional, physical or sexual attachment to
another person without regard to the sex of that person
or having an orientation for such attachment, or having
or being perceived as having a self image or identity
not traditionally associated with ones biological
maleness or femaleness. "Sexual orientation" does not
include a physical or sexual attachment to children by
an adult.
In 1993, the Transgender Employment Law and Policy Committee
agreed that the Minnesota statute should be used as the model
language for use in the Federal Civil Rights legislation, other
states and municipalities.
CONCLUSION
The courts have not been good avenues for transsexuals to
seek relief from when they have been fired for being a
transsexual. The current federal laws and most state laws are too
restrictive for transsexuals to use to protect their jobs. A
transsexual's two best hopes are to try to obtain their
employer's voluntary cooperation and to get the laws changed to
specifically include transsexuals.
---------- FOOTNOTES ----------
[1.] This paper is dedicated to the three transsexuals the
author has known who have taken their own lives in the
past year. May they find the peace they could not find in
life.
[2.] see Standards of Care, Harry Benjamin International
Gender Dysphoria Association, Inc., Revised draft 1/90,
".4.9.1 Standard 9. Genital sex reassignment [also known
as Sex Reassignment Surgery] shall be preceded by a period
of at least 12 months during which time the patient lives
full-time in the social role of the genetically other
sex."
[3.] As defined by The American Psychiatric Assn Diagnostic and
Statistical Manual of Mental Disorders . 302.3 , 4th ed.
1994.
[4.] Maffei v. Kolaeton Industry, Inc., Nos. 124783/94, 95-178,
1995 WL 168807, at *3 (N.Y.Sup. March 14, 1995) quoting
"Relief" for Transsexuals, 4 Yale Law & Policy Review 125
(1985); The Law of Transsexualism, 4 Conn. L.R. 288
(1975); Transsexuals in Limbo, 31 Maryland L.R. 236
(1971).
[5.] Phyllis Frye, Friday Luncheon Speech, Proceedings of the
First International Conference on Transgender Law and
Employment Policy page 27, (1992).
[6.] A claim for equal protection would be based on
transsexuals, as a group, being treated differently from
similarly situated groups.
[7.] In analyzing a statute to see if it violates the Equal
Protection Clause of the Constitution the Court will look
at the classification created and see if the individuals
who are similarly situated will be treated similarly. It
will apply a "mere rationality" test if the classification
is not one of the limited "suspect" classes.
[8.] "This Court's approach to Fifth Amendment equal protection
claims has always been precisely the same as to equal
protection claims under the Fourteenth Amendment."
Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n.2 (1975).
[9.] Arguably there is another level of review developed to fit
in between intermediate review and the rational basis
test. See, e.g., City of Cleburne v. Cleburne Living Ctr.,
473 U.S. 432 (1985) (characterizing its analysis of a
denial for a zoning permit for a mentally retarded home as
the rational basis test, but applying a "heightened" level
of scrutiny).
[10.] The regulation must be necessary to promote a compelling
governmental interest and must be the least restrictive
alternative. See, e.g., Korematsu v. United States, 323
U.S. 214 (1944) (applying the "most rigid scrutiny" to
determine the constitutionality of military regulations
which discriminate based on race).
[11.] The Supreme Court has recognized that fundamental rights
include the right to interstate travel, Shapiro v.
Thompson, 394 U.S. 618 (1969), the right to vote, Harper
v. Virginia Bd. of Elections, 383 U.S. 663 (1966), and the
right of access to the courts, Griffin v. Illinois, 351
U.S. 12 (1956).
[12.] Three main suspect classes exist. Regulations that
discriminate based on race are subject to strict scrutiny.
See Loving v. Virginia, 388 U.S. 1 (1967) (applying strict
scrutiny to statute prohibiting interracial marriage);
Brown v. Board of Ed., 347 U.S. 483 (1954) (applying
strict scrutiny to state laws requiring separate but equal
education between whites and non-whites). Statutes that
discriminate based on national origin are subject to
strict scrutiny. See Hernandez v. Texas, 347 U.S. 475
(1954) (applying strict scrutiny to discrimination against
Mexican Americans with regards to jury duty). Finally,
statutes that discriminate based on alienage are also
subject to strict scrutiny. See In re Griffiths, 413 U.S.
717 (1973) (applying strict scrutiny to state statutes
that denied resident aliens the opportunity to practice
law).
[13.] As long as the regulation furthers a legitimate purpose,
the regulation will be upheld as constitutional. "In
general, a government regulation will be presumed to be
valid under equal protection analysis as long as the
classification drawn by the regulation "rationally
furthers some legitimate, articulated state purpose.'"
Ben-Shalom v. Marsh, 881 F.2d 454, 463 (7th Cir. 1989)
(quoting McGinnis v. Royster, 410 U.S. 263, 270 (1973)).
[14.] See, e.g., Hetherton v. Sears, Roebuck & Co., 493 F. Supp.
82, 87 (D. Del. 1980) (stating that all other
classifications will be reviewed under the standard of
minimum rationality), aff'd, 652 F.2d 1152 (3rd Cir.
1981).
[15.] See, e.g., Plyler v. Doe, 457 U.S. 202 (1982) (striking
down Texas law that allowed school districts to deny free
public education to illegal-alien children).
[16.] Those classes that are not "suspect classes" are labeled
"quasi-suspect." See Mississippi Univ. for Women v. Hogan,
458 U.S. 718, 723-24 (1982). Intermediate scrutiny applies
to classifications based on gender. See Reed v. Reed, 404
U.S. 71 (1971). It also applies to classifications based
on illegitimacy. See Pickett v. Brown, 462 U.S. 1 (1983);
Mills v. Habluetzel, 456 U.S. 91 (1982); Trimble v. Gordon
430 U.S. 762 (1977); Mathews v. Lucas, 427 U.S. 495
(1976).
[17.] This determination is not dispositive in every instance.
For instance, in Steffan the court applied the rational
basis test and held that the Navy's regulation was
unconstitutional. Although the court came to the correct
conclusion, a stricter standard of review should have been
used.
[18.] Frontiero v. Richardson, 411 U.S. 677, 686, 93 S.Ct. 1764,
1770 (1973).
[19.] 566 F2d 659 (9th Cir. 1977).
[20.] Holloway at 663.
[21.] Holloway, at 663-64.
[22.] Holloway, at 664.
[23.] No. 94-2235-KHV, 1994 WL 731517 (D. Kan. December 23,
1994).
[24.] Is He or Isn't She? Transsexualism: Legal Impediments to
Integrating a Product of Medical Definition and
Technology, 21 Washburn L. J. (1982), at 359.
[25.] Josie Glausiusz, Transsexual Brains. 1995: The Year in
Science, Discover magazine, January, 1996 p. 83.
[26.] Id.
[27.] McLaughlin v. Florida, 379 U.S. 184, 192 (1964) (holding
that because race is an irrelevant characteristic,
statutory distinction based explicitly on racial grounds
cannot be regarded as having a constitutionally acceptable
legislative purpose); Graham v. Richardson, 403 U.S. 365,
368 (1971) (finding that aliens are clearly a suspect
class). For other examples see Cleburne v. Cleburne
Living Center, 473 U.S. 432, 441; Massachusetts Bd. of
Retirement v. Murgia, 411 U.S. 307, 313; San Antonio
School Indep. District v. Rodriguez, 411 U.S. 1, 28
(1973); Frontiero, 411 U.S. at 684-85.
[28.] "The second factor that the Supreme Court considers in
suspectclass analysis is difficult to capsulize and may in
fact represent a cluster of factors grouped around a
central idea--whether the discrimination embodies a gross
unfairness that is sufficiently inconsistent with the
ideals of equal protection to term it 'invidious.'"
Watkins v. United States Army, 875 F.2d 699, 724 (9th Cir.
1989). The determination of whether the discrimination is
'grossly unfair' is important because the discrimination
experienced by some groups is warranted. The Watkins
court offered burglars as an example of a group toward
which animus is warranted, but suspect classification is
not. It is therefore crucial to this inquiry to establish
that the discrimination experienced by groups deserving of
suspect classification is of a kind which exhibits a gross
unfairness. Id.
[29.] United States v. Carolene Prod. Co., 304 U.S. 144, 153 n.4
(1938) (stating that "prejudice against discrete and
insular minorities," which inhibits their protection by
the political process calls for heightened judicial
scrutiny). See also Cleburne, 473 U.S. at 441; Plyer, 457
U.S. at 216 n.14; Rodriguez, 411 U.S. at 28.
[30.] See fn 72
[31.] The International Conference on Transgender Law and
Employment Policy has been held yearly from 1992 until the
present in Houston, Texas.
[32.] Watkins at 724.
[33.] Wendy Carlos recorded one of the best selling classical
albums of all time in the 70's, "Switched on Bach", made
when she was a man named Walter Carlos. She has recorded
a new album called "Switched on Bach 2000." Wendy was
also the composer of the sound track used in the movie
"The Shining."
[34.] The prime example of a transsexual attorney is Phyliss
Frye who is responsible for putting on the Conference for
Transgender Law and Employment Policy.
[35.] Watkins at 724.
[36.] For a more through exploration of the difference between
sex and gender as they apply to transsexuals see
Transsexualism as Metaphor: The Collision of Sex and
Gender, 43 Buffalo Law Review 835 (1995).
[37.] Conversation with State Representative George Eighmey
about the exclusion of transsexuals from legislation
introduced in the Oregon legislature in 1995 where the
author served as a legislative intern to Rep. Eighmey.
[38.] Conversation with Phyliss Frye regarding ENDA the
Employment Nondiscrimination Act introduced in the last
and current Congressional sessions. See also the specific
exclusion of transsexuals in the ADA and Rehabilitation
Act of 1973.
[39.] John E. Nowak & Ronald D. Rotunda, Constitutional Law at
576 (4th ed. 1991).
[40.] Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724
(1982) stating that the government has the "burden of
showing exceedingly persuasive justification for the
[gender] classification" and that the government'sinterest
must be substantially related to the achievement of those
objectives."
[41.] Lalli v. Lalli, 439 U.S. 259, 265 (1978) reasoning that
although illegitimacy is not subject to strict scrutiny,
legislation which discriminates upon that basis is
nevertheless invalid if it is not substantially related to
permissible state interests.
[42.] Reed v. Reed, 92 S.Ct. 251, 253-54, 404 U.S. 71, 75-76
(1971).
[43.] Nowak at 589.
[44.] No. CIV.A.84-3296, 1985 WL 9446 (D.D.C. June 12,1985).
[45.] Doe had Sex Reassignment Surgery about six months after
the events in question.
[46.] Doe at *4.
[47.] Doe at *4.
[48.] "experts now generally agree that there are at least seven
variables that interact to determine the ultimate sex of
an individual, to wit: 1) Chromosomes (XX female, XY
male; 2) Gonads (ovaries or testes); 3) Hormonal
secretions (androgens for males or estrogens for females);
4) Internal reproductive organs (uterus or prostate); 5)
External genitalia; 6) Secondary sexual characteristics;
and 7) Self- identity. [See, Note, 80 Northwestern L.R.
1037 (quoting from N. Benjamin, The Transsexual
Phenomenon, p. 14 [1966]. Maffei v. Kolaeton,
Nos. 124783/94, 95-178. ,1995 WL 168807, at *3 (N.Y.Sup.
March 14, 1995).
[49.] 742 F.2d 1081 (7th Cir. 1984).
[50.] Karen Ulane died in a crash of a DC-3 in late 1989.
[51.] Ulane at 1087.
[52.] Ulane v. Eastern Airlines, 581 F. Supp. 821 (N.D. Ill.
1984).
[53.] Ulane v. Eastern Airlines, Inc., 581 F.Supp. 821, 823
(N.D. Ill. 1984).
[54.] Ulane, 742 F.2d 1081, 1087 (7th Cir. 1984).
[55.] 667 F.2d 748 (8th Cir. 1982).
[56.] Which bathroom a pre-operative transsexual is to use is
one of the most often cited problems facing an employer.
If the transsexual uses the bathrooms assigned to her new
sex individuals using that bathroom may feel a sense of
unease because they still think of her as being he. Yet if
the transsexual uses the bathroom of her chromosomal sex
she may face harassment or worse from individuals who have
an illogical hatred of anyone who is different.
[57.] Sommers v. Budget Marketing, Inc., 667 F.2d 748, 750 (8th
Cir. 1982).
[58.] A sabbatarian is "one who observes the seventh day of the
week, Saturday, as the Sabbath." Webster's Encyclopedic
Unabridged Dictionary of the English Language, First
Edition 1989.
[59.] Cummins v. Parker Seal Co., 516 F.2d 544, U.S. Ct. of
Appeals 6th Cir (1975). Blalock v. Metal Trades, Inc., 775
F.2d 703, U.S. Ct. of Appeals 6th Cir. (1985). Mann v.
Milgram Food Stores, 730 F.2d 1186, U.S. Ct. of Appeals
8th Cir. (1984).
[60.] Kim E. Stuart, J.D., The Uninvited Dilemma: A Question of
Gender, 146-147 (1991), quoting research done by a West
German, Wolf Eicher, PH.D., on the reversed responses of a
group of male to female and female to male transsexuals to
HY antigens which are normally found in the chromosomal
male cellular structure. Normal genetic males are HY
positive and normal genetic females are HY negative. Dr.
Eicher's study found that male to female transsexuals were
HY negative and female to male transsexuals were positive
the exact opposite of the predicted results.
[61.] James v. Ranch Mart Hardware, Inc., No. 94-2235-KHV, 1994
WL 731517 (D. Kan. December 23, 1994).
[62.] James at *1.
[63.] Id. at *1 and quoting Sommers v. Budget Marketing, Inc.,
667 F. 2d 748, 749 [27 FEP Cases 1217] (8th Cir. 1982).
[64.] Id. at *1.
[65.] Id. at *1.
[66.] James v. Ranch Mart, Inc., No. 94-2235-KHV, 1995 WL
148366, (D. Kan. Feb. 22, 1995)
[67.] No. CIV.A..84-3296, 1985 WL 9446 (D.D.C. June 12, 1985).
[68.] Doe v. United States Postal Service, No. 84-3296,at *2
(D.D.C. June 12, 1985).
[69.] Id. at *2
[70.] "(F) For the purposes of sections 501, 503, and 504, the
term 'individual with a disability' does not include an
individual on the basis of-
(i) transvestism, transsexualism, pedophilia,
exhibitionism, voyeurism, gender identity disorders
not resulting from physical impairments, or other
sexual behavior disorders;", Rehabilitation Act
Amendments of 1992, Pub. L. No. 102-569, 106 Stat.
4344, 4349 (1992).
[71.] . 511 Definitions (b) Certain conditions
Under this Act, the term "disability" shall not include-
(1) transvestism, transsexualism, pedophilia,
exhibitionism, voyeurism, gender identity disorders not
resulting from physical impairments, or other sexual
behavior disorders;
[72.] On Thursday September 7, 1989 the Senate was considering
the ADA and the following dialogue took place;
Mr. HELMS.
Mr. President, for the record, I wish to ask the
distinguished manager a few questions about this bill, the
Americans With Disabilities Act of 1989.
In the bill, the definition of "individuals with
disabilities" includes anyone with a physical or mental
impairment limiting one of life's major activities, and anyone
regarded as having such an impairment.
The report lists many mental and physical disorders and
therefore it must have been the intent of S. 933's authors that
it be an all-encompassing bill; is that correct?
Mr. HARKIN.
Well, the Senator's question was, Did we intend for the
bill to be all- encompassing?
Mr. HELMS.
Yes.
Mr. HARKIN.
Within the definition the Senator just read, that is
correct.
Mr. HELMS.
I thought the Senator would say that, so I will be
specific. Does the list of disabilities include pedophiles?
Mr. HARKIN.
What?
Mr. HELMS.
P-e-d-o-p-h-i-l-e-s?
Mr. HARKIN.
I can assure the Senator no.
Mr. HELMS.
How about schizophrenics?
Mr. HARKIN.
Schizophrenics, yes.
. . . .
Mr. HELMS.
Homosexuals?
Mr. HARKIN.
No; absolutely not.
Mr. HELMS.
The Senator is certain about that?
Mr. HARKIN.
I am absolutely certain.
Mr. HELMS.
Transvestites?
Mr. HARKIN.
Absolutely not.
Mr. HELMS.
People who are HIV positive or who have active AIDS disease?
Mr. HARKIN.
Just a moment, I may have misspoken.
Let us back up to transvestite. I said no, but I am told
by staff that one court at one time held that a transvestite was
mentally impaired, and I further understand the Senator from
North Carolina added an amendment to the fair housing amendments
last year that took care of that, and it was accepted.
Mr. HELMS.
Where does that leave us with respect to this bill?
Mr. HARKIN.
I do not know. Just a minute.
If the Senator would like to offer an amendment, we will
accept it. If can I ask the Senator, if it could be
drafted the same way you did last year on the Fair Housing
Act.
135 Cong.Rec. S10765-01 (1989).
[73.] No. CIV.A..84-3296, 1985 WL 9446 (D.D.C. June 12, 1985).
[74.] See Fn43.
[75.] 337 N.W. 2d 470 (Iowa 1983).
[76.] Iowa Code . 601A.6 (1981).
[77.] "We hold that in the context of employment transsexualism
is not a disability . . . " Sommers, 337 N.W. 2d 470, 474
(Iowa 1983).
[78.] Sommers at 476
[79.] 667 F.2d 748 ( 8th Cir. 1983).
[80.] 857 F.Supp. 96 (D.C. Cir. 1994).
[81.] D.C. Code Ann. . 1-2512(a) (1992 & Supp. 1993).
[82.] "From time to time in the course of this opinion,
therefore, we shall cite as authority federal cases
arising under the federal act in interpreting similar
provisions of the DCHRA." Underwood at 98.
[83.] Underwood at 98.
[84.] Underwood at 98.
[85.] 846 P.2d 531 (Wash. 1993).
[86.] Wash. Rev. Code .. 49.60.010 - 49.60.320(1992); Wash.
Admin. Code . 162-22 (1992) (handicapped persons).
[87.] Doe at 535.
[88.] "Inasmuch as Boeing did not discharge Doe based on her
abnormal condition but on her refusal to conform with
directives on acceptable attire." Doe at 536.
[89.] Doe at 536.
[90.] Doe at 537.
[91.] Doe at 537.
[92.] Belinda Smith died in 1994 in a freak boating accident off
the coast of Florida.
[93.] Fla. St. 1983, Chapter 760, Discrimination in the
Treatment of Persons.
[94.] Smith v. City of Jacksonville, Case # 88-5451, Recommended
Order pages 23-24, (Florida, Div. of Administrative
Hearings, October 2, 1991).
[95.] Smith at 24.
[96.] Connecticut, Conn. Gen. Stat Ann. .4a-60a (West Supp.
1995); Hawaii, Haw. Rev. Stat. Ann. . 378-2 (1994);
Massachusetts, Mass. Ge. Laws Ann. ch. 151B . 4 (West
Supp. 1995); Minnesota, Minn. Stat. Ann. . 363.03 (West
Supp. 1995); New Jersey, N.J. Stat. Ann. .10:5-4 (West
1993 Supp. 1995); Vermont, Vt. Stat. Ann. tit. 3, . 961
(West Supp. 1995); Wisconsin, Wis. Stat. Ann. .111.36
(West Supp. 1995).
[97.] See supra note 47.
[98.] 857 F.Supp. 96 (D.C. Cir. 1994).
[99.] See discussion page 18.
[100.] Minn. Stat. Ann. . 363.01 (West 1994).
