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The nation’s premier civil rights law does not declare it illegal to discriminate against transgender people or against people claiming a different gender identity than the one on their birth certificate. There is no Supreme Court ruling declaring that they are protected by that or any other law. Yet the Obama administration has signed on to a legal theory and filed a lawsuit claiming that in passing a law that denies bathroom or locker room choice based on “gender identity,” North Carolina has broken federal civil rights law.

So it’s fair to ask that ever popular question, what’s the deal with that, especially since North Carolina’s lawyers read the same statute so differently you wouldn’t know they were looking at the same law.

The answer lies in a few passages of a 1989 Supreme Court ruling that were barely noted, if noted at all, in the news media at the time, mostly because the central question in the case was about something else. It occurred to no one that the case could produce what one scholar called a “revolution” in transgender rights.

The story begins in the early 1980s when a woman named Ann Hopkins was a senior manager for Price Waterhouse, then a giant accounting firm, who was, by all accounts, extremely successful at bringing in business for the firm. Indeed, after laboring for two years, as she would later tell the story, and preparing a 26 volume proposal in an effort to win a consulting contract for the firm with the State Department, she succeeded, winning a huge slice of business worth $30 million to $50 million, the largest single deal in the firm’s history.

In part because of her success, she was proposed for partnership in July 1983, and was the only woman among 88 candidates. Had she been granted that coveted status she would have been only the seventh woman partner out of 667. But Hopkins was not made a partner. When she was told her fate at the firm, she was “miserable, depressed, furious, disconsolate, and inconsolable in cycles,” she would later recall.

 

What she didn’t know at that point was what some of the male partners had said about her during the course of considering her elevation.  One thought she “ovecompensated for being a woman.” Another objected to her use of profanity “because it’s a lady using foul language.” Yet another thought she was “somewhat masculine.” And the man who “delivered the coup de grace,” as the Supreme Court would later put it in Price Waterhouse v. Hopkins, told her that in order to improve her chances for partnership Hopkins should “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled and wear jewelry.”

Hopkins sued Price Waterhouse in federal court alleging that the firm had discriminated against her “because of gender stereotyping” under Title VII of the Civil Rights Act of 1964, which bars employment discrimination based on race, color, religion, national origin and sex.

The case reached the Supreme Court not on the issue stereotyping, however, but on a more technical question of the evidentiary standard and burden of proof required to succeed in a case brought under Title VII. Indeed, Price Waterhouse, in defending itself, suggested that the stereotyping lacked “legal relevance” in a Title VII case. And it was true, as Ilona Turner wrote in a 2007 article in the California Law Review, that earlier cases defined discrimination under Title VII “as limited to the traditional meaning of sex — across-the-board discrimination against the biological categories of males and females,” such as “hiring only men as lawyers or only women as secretaries.”

But Justice William Brennan, writing for the court’s 6-3 majority, took the opportunity to reject that narrow interpretation “We are beyond the day when an employer,” he wrote, can “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.'”

Turner called the decision the “The Price Waterhouse Revolution.” It was, she wrote, “the first time the Supreme Court gave its imprimatur to a theory of sex discrimination that includes discrimination based on an individual’s perceived failure to conform to gender stereotypes.”


(The Washington Post,1989)

Still, since the case had nothing to do with gender identity per se, few took immediate notice of what seemed an aside in the opinion. But lawyers who litigated transgender discrimination cases did indeed take notice. What, after all, is discrimination against a man who identifies as a woman or vice versa if it isn’t a feeling that somehow someone is failing to conform with the vision held by others about how a man or a woman should behave or dress or think?

The idea caught on. In 2004, for example, the U.S. Court of Appeals for the 6th Circuit took up the case of a firefighter in Salem, Ohio, named Jimmie Smith. Born a biological male, Smith was diagnosed with gender identity disorder and, as court documents would later describe it, “began ‘expressing a more feminine appearance on a full-time basis’ — including at work — in accordance with international medical protocols for treating GID. Soon thereafter, Smith’s co-workers began questioning him about his appearance and commenting that his appearance and mannerisms were not ‘masculine enough.'”

Smith informed his immediate supervisor that he was about to undergo treatment that, as the Supreme Court opinion in the case said, “would eventually include complete physical transformation from male to female.” He asked his boss not to divulge the information to his superiors but he did. Ultimately, the city decided to force Smith to undergo a series of psychological evaluations with physicians chosen by the city, in the hope that “Smith would either resign or refuse to comply.” He did neither. He got a lawyer instead, for which, he contended he was later suspended from his job. He sued, losing in the federal trial court which, among other things, said that protection under Title VII was “not available to transsexuals.”

The 6th Circuit in Smith v. City of Salem reversed the lower court citing Price Waterhouse. Discrimination “against a plaintiff who is transsexual — and therefore fails to act and/or identify with his or her gender — is no different from Ann Hopkins in Price Waterhouse, who, in sex-stereotypical terms, did not act like a woman,” the appeals court ruled.

The ruling, Turner, of the Transgender Law Center in Oakland, Calif., said in an interview with The Post, “was incredibly exciting. This was the theory we’ve been thinking about for years. The court recognized that discriminating against a transgender plaintiff…in that case someone who was perceived as a man, wearing women’s makeup and women clothing, appearing too feminine, was exactly like Price Waterhouse in reverse.” It wasn’t so much a matter of whether or not the employee was transgender, but “rather a person failed to conform to sex stereotypes.”

Soon the Equal Employment Opportunities Commission, citing Price Waterhouse, the Smith case and Ilona Turner’s law review article, accepted the same legal theory too.

It took up the case of a Phoenix police detective, a transgender woman still known as a male in 2010. The woman, Mia Macy, who decided she wanted to move to San Francisco for family reasons, heard of an opening with the Bureau of Alcohol, Tobacco, Firearms and Explosives and was essentially told the job was hers, pending a background check. But in March 2011, she informed the agency that she was in the process of transitioning from male to female. Five days later, according to the EEOC’s ruling, she was informed that the position was no longer available. Later she heard that it had been filled by someone else, however.

The agency, ruling in Holder v. Macy determined that she was covered by Title VII, on the same theory that came out of the Hopkins case:  “If Title VII proscribed only discrimination on the basis of biological sex, the only prohibited gender-based disparate treatment would be when an employer prefers a man over a woman, or vice versa. But the statute’s protections sweep far broader than that, in part because the term ‘gender’ encompasses not only a person’s biological sex but also the cultural and social aspects associated with masculinity and femininity….A person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes.”

In 2006, the Department of Justice had said the civil rights law did not cover transgenders. On Dec. 15, 2014, then Attorney General Eric Holder, citing, among other cases, the Price Waterhouse and Macy, reversed course and proclaimed that this broader approach to sex discrimination under Title VII was the now the legal position of the Obama administration. “The federal government’s approach to this issue has also evolved over time,” he said, noting that in 2006, the Justice Department had argued that Title VII did not cover discrimination based on transgender status or gender identity per se.

However, “I have determined that the best reading of the statute, and the developing jurisprudence in this area, is that it encompasses discrimination based on gender identity, including transgender status.”

By then, the whole government, including the Department of Education, which administers its own civil rights regulations under Title IX of the education amendments of 1972, was on board.

Under the logic of the Obama administration’s new legal position, access to bathrooms would soon follow. The civil rights law, Turner told The Post, does not address restrooms. But “access to restrooms is a term and condition of employment,” so if employment law barred employment discrimination on the basis of gender stereotyping, discrimination in access to bathrooms logically would be covered.

The argument, as the U.S. Court of Appeals for the 6th Circuit would put it in a 2005 case, isn’t so much that the law protects a label “such as “‘transsexual'” but that it protects people who have “suffered discrimination because of his or her gender non-conformity.”

But is it now the law of the land? “It’s not quite a done deal,” said Sandra Pullam, an adjunct professor at the Brooklyn Law School who has written on the cases. “There’s been no Supreme Court ruling, But theres been a steady drumbeat of cases.”

Yet not every court and not every judge has bought into the theory, however. Indeed a U.S. District Court in Pennsylvania, ruled just the opposite last year in a case against the University of Pittsburgh involving the education amendments, Title IX, holding just last year that since Title VII “does not provide an avenue for a discrimination claim on the basis of transgender status,” neither does Title IX, which has generally been interpreted by the courts in parallel. “On a plain reading of the statute,” wrote Judge Kim R. Gibson, “the term ‘on the basis of sex’ in Title IX means nothing more than male and female, under the traditional binary conception of sex consistent with one’s birth or biological sex. The exclusion of gender identity from the language of Title IX is not an issue for this Court to remedy. It is within the province of Congress — and not this Court — to identify those classifications which are statutorily prohibited.”

Ultimately, that case did not go to a higher court as the plaintiff and the University of Pittsburgh reached a settlement.


Gov. Pat McCrory (R) speaks during a news conference in Raleigh, N.C., on Monday. (Gerry Broome/AP)

But it is precisely the Pennsylvania District Court’s argument that the state of North Carolina, and other critics of the Obama administration’s position, are using in their counter-suits to defend the state’s new law.

What the Justice Department has done is “rewrite long-established federal civil rights laws in a manner that is wholly inconsistent with the intent of Congress,” North Carolina Gov. Pat McCrory (R) said in his suit against the government “….If the United States desires a new protected class under Title VII, it must seek such action by the United States Congress.”

Moreover, the state argues, it is not discriminating on the basis of “socially constructed stereotypes” or any stereotypes. It is rather drawing an objective distinction between people whose birth certificates describe them as male or female, that is, between people based on their “biological sex.”

“North Carolina does not treat transgender employees differently from non-transgender employees,” said McCrory’s complaint for declaratory judgement. “All state employees are required to use the bathroom and changing facilities assigned to persons of their same biological sex, regardless of gender identity, or transgendered status.”

Moreover, the state argues, there is another right at stake, said the state suit, a “right to bodily privacy held by non-transgender employees in the workplace.”

“They overstate” the case of Ann Hopkins, said Matt Sharp, legal counsel for the Alliance Defending Freedom, which is representing a group of parents in Illinois in a challenge to opening up bathrooms and locker rooms on the basis of gender identity. “If you had a school looking at a guy and saying, ‘you’re not manly enough to play on the soccer team,’ that could apply,” he said. “North Carolina’s law doesn’t care about a student’s gender identity. We don’t really care. No one is saying they are insufficiently masculine to use the boy’s bathroom.” Rather, they are saying simply that which bathroom is used depends on a person’s birth certificate.

As for Ann Hopkins, after several years of additional litigation in the courts, she got back pay and returned to Price Waterhouse in Feb. 1991. But “I lost about nine years of my career.” She wrote a book, “So Ordered: Making Partner The Hard Way,” a portion of which was excerpted in the Hofstra Labor & Employment Law Journal.

“….I have wondered what might have happened If I had been a partner during those lost years,” she wrote. “….Would I have risen higher in the ranks to a position where I could have more effectively influenced the firm to cherish diversity? Would some of the men I worked for have been working for me? I don’t know. What I do know is I never compromised on what I valued or believed. I didn’t always get it right, but I did it my way.”

As for Price Waterhouse, she noted in the last line of the excerpt, it “no longer exists.”