In seeking to remedythe well-documented cases of discrimination suffered by transgender peoplein employment, housing, public accommodations, marriage, and credit (amongother areas), protection has been sought through litigation under statutesthat prohibit discrimination on the basis of sex/gender,sexual orientation, and/or disability. The sections below provide a briefoverview of the status of efforts to secure protection under existingnondiscrimination policies.

Neither the federalRehabilitation Act of 1973 nor the Americans with Disabilities Act protecttransgender people from discrimination on the basis of disability. Languagein both Acts specifically exclude protection for "transsexualism" and "genderidentity disorders not resulting from physical impairments."¹

At the state level,nine states have statutes that mirror federal language by includingprovisions expressly excluding transgender people from nondiscrimination.² In the absence of such specific exclusions, somestate courts (e.g. Pennsylvania, Iowa³ ) have ruled that "transsexualism" is not aprotected disability. Courts have reached the opposite conclusionÑthattranssexualism or gender dysphoria are covered by state disability lawsÑin Washington,Massachusetts, and New Jersey.⁴ In addition, administrative agencies in Florida andIllinois have held that state disability laws in those two states covertranssexualism.

In Oregon, ORS659.439(2) amended state law in 1997 to state that "an employer may notbe found to have engaged in an unlawful employment practice solely becausethe employer fails to provide reasonable accommodation to a person with adisability arising out of transsexualism."

In interpreting TitleVII, federal courts initially adopted the approach that sex is distinctfrom gender, and therefore that discrimination was barred on the basis ofthe former but not the latter. Courts reasoned that the term "sex" inTitle VII referred to an individual's distinguishing biological oranatomical characteristics, whereas "gender" referred to anindividual's socially constructed characteristics or sexual identity.Therefore, for example, male-to-female (MTF) transsexuals, as anatomicalmales whose outward identity did not meet socialdefinitions of masculinity, were denied Title VII protections by the courtssince they were the victim of gender, rather than sex, discrimination.Courts have further held that there is a legal distinction between discrimination because of sex and discriminationbecause of change of sex. In Holloway v. Arthur Andersen & Co., the Ninth Circuit ruled that an employee who wasfired for transitioning from male to female while employed at Anderson wasnot discriminated against because she was female, but rather "becauseshe is a transsexual who chose to change her sex," a claim that the court said was not actionable under Title VII.⁵

Similarly, the Seventh Circuit ruled in 1984 in Ulane v. Eastern Airlines, Inc. that Title VII's "plain meaning" impliedthat "it is unlawful to discriminate against women because they arewomen and against men because they are men."⁶ Although the trial court in the case reasoned that"sex is not a cut-and-dried matter of chromosomes," but should"reasonably be interpreted toÉinclude the question of identity"(therefore affording protection under Title VII), the appeals courtrejected the idea that Title VII covered a woman "createdfrom what remains of a man."

And in Sommers v. Budget Marketing⁷, the Eighth Circuit ruled that a transsexualemployee who, the court asserted, could not "properly [be] classified asmale or female" could not bring a sex discrimination suit since suchprohibitions protected men and women but not "persons with attributes of both sexes."

A recent Ninth Circuitopinion in the case Schwenk v. Hartford suggested that the long-standing tradition in TitleVII case law of interpreting "sex" to be distinct from "gender" for the purpose of anti-discrimination protections might no longer bevalid⁸. The court in this case argued that the initialapproach had been overruled by the the logic applied by the U.S. SupremeCourt in the 1989 case Price-Waterhouse v. Hopkins⁹, which held that Title VII barred discriminationagainst those who fail to conform to socially-constructed genderexpectations. In the Price-Waterhouse case, a female manager who was denied partnershipbecause she was judged to be too aggressive and not feminine enoughsuccessfully argued that her firm's decision constituted sexdiscrimination. Justices concluded that in forbidding employers todiscriminate on the basis of sex, "Congress intended tostrike at the entire spectrum of disparate treatment of men and womenresulting from sex stereotypes." In the Schwenk case the Ninth Circuit used Price-Waterhouse to argue that "sex" under Title VIIencompasses both sex and gender and that "discrimination because onefails to act in the way expected of a man or woman is forbidden under TitleVII." Under this logic, Schwenk, a transgender prisoner who was sexuallyassaulted by a prison guard was entitled to bringclaims under both Title VII and the Gender Motivated Violence Act. In asimilar move, the First Circuit in 2000 ruled in favor of a man who wasrefused a loan application because he was not dressed in "masculine attire." The court in Rosa v. Park West Bank & Trust Co.¹⁰ held that under the Equal Credit Opportunity Actdiscrimination against a man because he is wearing a dress could constitutesex discrimination.

In the past,employment discrimination cases brought under state anti-discriminationlaws have been unsuccessful. The Iowa Supreme Court ruled in 1983 that theword "sex" in the state's Civil Rights Act protected men andwomen, but not "persons with attributes of both sexes,"¹¹mirroring earlier interpretations of similarstatutes in Maryland and California.¹² A decade later, in Dobre v. Amtrak,¹³ a Pennsylvania appeals court narrowly interpretedthe term "sex" to mean "an individual's distinguishingbiological or anatomical characteristics," and thus ruled that a MTFtranssexual woman did not have a viable sex discrimination claim under thePennsylvania Civil Rights Act. In a 1994 case interpreting the District ofColumbia's Human Rights Act, sex discrimination was judged to refer to"the state of being male or female and the conditions associatedtherein," and therefore did not cover transsexuals. The court in thiscase held that the plaintiff was discriminated against"because sheÉtransformed herself into a woman" rather than"because she is a woman" and therefore she had no viable sexdiscrimination claim. Similarly, the D.C. provision prohibitingdiscrimination on the basis of sexual orientation also did not apply totranssexuals, since homosexuality and transsexuality are not the samething.¹⁴ And in 1995, a federal court ruled that a MTFtransgender person could not sue for discrimination under the Kansas ActAgainst Discrimination.¹⁵In this case, the court reasoned that since maleemployees constituted the majority, the plaintiff (a biological male) wouldhave to prove a case of "reverse" discrimination to prevail.

By contrast, courts inthree states (Massachusetts, New York, and New Jersey) and anadministrative agency in Connecticut (the Connecticut Commission on HumanRights and Opportunities) have ruled that state laws prohibiting sexdiscrimination do include transgender people. In the New York case¹⁶ , the court rejected the argument that sexualorientation discrimination applied to transsexuals, but concluded thatharassment based on the fact that an employee changed his sexual status didconstitute sex discrimination. In so doing, the New York court held that more restrictive interpretations of TitleVII should not be followed in interpreting state and local statutes. A NewJersey appeals court similarly reasoned that the constricted definition ofsex discrimination used in Ulane, Holloway, and Sommers was in conflict with the state's "historicpolicy of liberally construing [discrimination law]."¹⁷ In this case, the court concluded that sexdiscrimination under the New Jersey Law Against Discrimination includedgender discrimination so as to protect individuals from gender stereotypingand from discrimination on the basis of transforming from one gender to another. The Connecticut human rightscommission employed similar logic, noting that the state's laws oftenhave been interpreted more progressively than their federal counterpartsand that a proposed expansion of the definition to include transsexuals was "congenial with Connecticut's historyof advancing civil rights."¹⁸

After decades of rejection in the courts, transgenderactivists increasingly are seeking statutory protections at the state andlocal level. Presently two states have extended legislativeprotection to transgender people. Minnesota became the first jurisdictionto offer statewide anti-discrimination protection to transgender people in1993. These protections were extended in a bill prohibiting discrimination on the basis of sexual orientation,which was expressly defined to include transgender people.¹⁹ The only other state, Rhode Island, passed a law in2001 prohibiting discrimination based on "gender identity andexpression" in employment, credit, public accommodations, and housing.Governor Tom Vilsack of Iowa issued an executive order prohibiting discrimination against state employees on the basis ofgender identity in 1999, although the order was overturned after a districtcourt judge ruled that the governor did not have the authority to make theorder.

FourstatesÑCalifornia, Minnesota, Missouri, and VermontÑcurrently haveexplicit provisions including transgender people in their state hate crimeslegislation, and in 2001 several other state legislatures were consideringsimilar measures.

Five counties,including Benton County (as of 1998) and Multnomah County (as of 2001) inOregon, include transgender protection in their nondiscrimination policies.And 39 cities, including Portland, OR, prohibit discrimination againsttransgender people.

In the statutes listedabove,protections for transgender people have been extended by establishing"gender expression and identity" (or comparable terms) as a newprotected category, or by amending the statutory definition of sex, gender,or sexual orientation to include that transgender people withinthose categories.

The new categoryapproach has been taken in 17 local nondiscrimination laws (including thosein Portland, Benton County, and Multnomah County)²⁰ , as well as in the statewide hate crimes statute inVermont and a local hate crimes statute in Ithaca, NY. Transgenderprotection has been incorporated within the definition of sexualorientation in the Minnesota statute, along with local ordinances in seven cities²¹ and in the Missouri hate crimes law. The strategy ofincluding transgender people in the definition of sex or gender is one thathas been used in seven city ordinances²² and in the California hate crimes statute.

As legal scholars PaisleyCurrah and Shannon Minter note in their recent review of transgenderjurisprudence, while the strategies outlined above (litigation understatutes that prohibit discrimination on the basis of sex/gender, sexualorientation, and/or disability) might appear to be the most logicalcourse of action, "in practice, litigation alone has proved to be asingularly unsuccessful route to winning basic civil rights protections fortransgender people."²³ The history of transgender case law, in which courtshave routinely created "transgender exceptions" to existingnondiscrimination laws, offers a clear reason why transgender advocateshave sought to remedy this situation by specifically designating transgender people as a protected group.

Arizona: two proposed bills (AZ H.B. 2237 and AZ H.B. 1225)would prohibit employment discrimination on the basis of sexual orientationand gender identity Gender identity is defined as "having or beingperceived as having a self-image or identity not traditionally associated with a person's maleness orfemaleness."

California: CA AB 1649 would extend the transgender-inclusivelanguage of the California hate crimes law to sex discrimination.

Colorado: CO S.B. 154 would add sexual orientation and genderidentity to the list of to the state's nondiscrimination law. Genderidentity is defined as "having a changed gender as a result of a sexchange surgery or manifesting, for reason other than dress, anidentity not traditionally associated with one'sbiological maleness or femaleness." CO S.B. 75 would add gender identity(defined as stated above) to the state's hate crime law.

Hawaii: Two proposed hate crime bills, HI S.B. 718 and HIS.B. 951 would include protection for "transgender"individuals.Transgender is defined as "persons who identify with, wishto become, or publicly portray themselves as members of the gender oppositeto their biological birth assignment."

Illinois: IL H.B. 101 would amend state nondiscrimination lawsto include sexual orientation, which is defined as "having or perceivedas having emotional, physical, or sexual attraction to another withoutregard to the sex of that person or having or being perceived as having an orientation for such an attraction,or having or being perceived as having a self-image or identity nottraditionally associated with one's biological maleness orfemaleness."

Kentucky: KY H.B. 116 would amend a state civil rights law toprohibit discrimination based on sexual orientation and gender identity.Gender Identity is defined as "manifesting an identity not traditionallyassociated with one's biological maleness or femaleness."

Missouri: Two bills, HB 712 and SB 452 would prohibitdiscrimination based on sexual orientation, defined as "male or femaleheterosexuality, homosexuality or bisexuality by inclination, practice,identity or expression, or having a self-image or identity not traditionally associated with one's biological maleness orfemaleness."

New York: Two versions of the "Dignity for All StudentsAct" (NY A.B. 2634 and NY S.B.1628) would protect public schoolstudents from harassment and discrimination based on actual or perceivedrace, national origin, ethnic group, religion, disability, sexual orientation, gender or sex. Gender is defined as"actual or perceived sex and shall include a person's gender identityor expression." Separate anti-discrimination legislation (NY S.B. 985)would prohibit discrimination on the basis sexual orientation and gender identity in employment, credit, publicaccommodations, and education. Gender is defined as "gender identity,self image, appearance, behavior or expression whether or not the genderidentity, self image, appearance, behavior, or expression is different from that traditionally associated with the legalsex assigned to that person at birth."

North Carolina: NC S.B. 392 would add sexual orientation, gender,age, and disability to the state's existing hate crime law. Genderexpression is included in the definition of sexual orientation.

Texas: TX H.B. 668, the Texas Employment Non-DiscriminationAct, would prohibit covered entities from discriminating in employment onthe basis of sexual orientation or gender identity. Gender identity isdefined as the "actual or perceived gender of an individual." Other proposed legislation, TX H.B. 1296,would amend the state education code to prohibit discrimination in publiceducational institutions based on the ethnicity, color, gender, genderidentity, sexual orientation, disability, religion, or national origin of a student or a student's parents.

Institutional decisionsregarding hiring, promotion, compensation and admission will be based upona person's qualifications and/or performance without regard to race, color,creed, religion, national origin, sexual orientation, disability, age,gender, gender identity or gender expression, except wherereligion, gender, or national origin is a bona fide occupationalqualification. (http://www.transgenderlaw.org/depauw.htm)

The College administers itsprograms without regard to race, creed, religion, age, sex, nationalorigin, height, weight, marital status, physical disability as protected bylaw, or sexual orientation. The College's definition of sexual orientationproscribes discrimination based on a person'sheterosexuality, homosexuality, bisexuality, or gender identity, actual orpresumed. (http://www.transgenderlaw.org/kalamazoo.htm)

The University of Iowaprohibits discrimination in employment and in its educational programs andactivities on the basis of race, national origin, color, creed, religion,sex, age, disability, veteran status, sexual orientation, gender identity,or associational preference. The University also affirms itscommitment to providing equal opportunities and equal access to Universityfacilities. (http://www.uiowa.edu/~oaa/nondiscr.htm)

Agere Systems EqualOpportunity Policy: "Prohibits discrimination or harassment based onrace, color, creed, religion, national origin, citizenship, sex, maritalstatus, age, physical or mental disability, special disabled vereranstatus, Vietnam-era vereran status, other covered veterans, sexualorientation, gender identity, characteristics or expression, in anyemployment decision or in the administration of any personnel policy."

In August 2001 AMR/AmericanAirlines amended both its written non-discrimination employment policy andEEO statement to include "Gender Identity," which basically pertainsto transgender employees. American's written non-discrimination policy nowincludes age, race, sex, gender, gender identity, color,religion, national origin, sexual orientation, citizenship status,disability, Vietnam-era or disabled veteran status or other protectedclassification

"Apple is an equalopportunity employer, and does not unlawfully discriminate on the basis ofrace, color, religion, sex, national origin, marital status, age, sexualorientation, gender identity characteristics or expression, disability,medical condition, U.S. Military or veteran status in recruiting,hiring, training and promoting.""

"Avaya's policy is toprohibit discrimination or harassment because of race, color, creed,religion, national origin, citizenship, sex, marital status, age, physicalor mental disability, one's status as a special disabled veteran, veteranof the Vietnam era, or other covered veterans, or because of aperson's sexual orientation, gender identity, characteristics orexpression, in any employment decision or in the administration of anypersonnel policy."

Lucent's policy is to"prohibit unlawful discrimination or harassment because of race, color,creed, religion, national origin, citizenship, sex, marital status, age,physical or mental disability, one's status as a special disabled veteranor veteran of the Vietnam era, or because of a person's sexualorientation, gender identity characteristics or expression, in anyemployment decision or in the administration of any personnelpolicy."

"All positions require acommitment to working in a multicultural environment where diversity ofrace, ethnic origin, gender, age, sexual orientation, gender identity, andphysical ability are important institutional values."

"PlanetOut Partners Inc.is an Equal Opportunity Employer. We do not discriminate against anyemployee or qualified applicant for employment because of age, race, color,religion, sex, national origin, gender, gender identity, transgender statusor sexual orientation."

"The Clinic and theUnion agree that no employee shall be unlawfully discriminated against forthe reasons of sexual orientation, race, color, creed, ethnicity, religion,age, sex, national origin, disability, marital status, union membership,gender identification or any other characteristic protected byapplicable law." (Collective Bargaining Agreement, October 1, 1997through September 30, 2002)

Xerox Corporation addedprotection for gender identity and sexual orientation to its EqualEmployment Opportunity policies in June 2001.

1 See ADA, 42 U.S.C. 12211(b)(1), and RehabilitationAct, 29 U.S.C. 705(20)(f)

2 These include Indiana, Iowa, Louisiana, Nebraska,Ohio, Oklahoma, Oregon, Texas, and Virginia. See Shannon Minter,Representing Transsexual Clients: An Overview of Selected Legal Issues,2000, National Center for Lesbian Rights.

3 Courts have ruled that transsexualism is notprotected under the Pennsylvania Human Rights Act or the Iowa Civil RightsAct. See Holt v. Northwest Pennsylvania Training PartnershipConsortium, Inc., 694 A.2d 1134 (Pennsylvania 1997); Sommers v. Iowa Civil Rights Commission, 337 N.W.2d 470 (Iowa 1983).

4 See Doe v. Boeing Co., 846 P.2d 531 (Washington 1993); Enriquez v. West Jersey Health Systems

11 Sommers v. Iowa Civil Rights Commission, 337 N.W. 2d 470 (Iowa, 1983)

12 See also Powell v. Read's, Inc., 436 F.Supp. 369 (D. Maryland 1977); Voyles v. Ralph K. Davies Medical Center, 403 F.Supp. 456 (N.D. California 1975).

14 Underwood v. Archer Management Services, Inc., 857 F.Supp. 96 (D.D.C. 1994).

15 James v. Ranch Mart Hardware, Inc., 881 F.Supp. 478 (D. Kansas 1995).

16 Maffei v. Kolaeton Industries, Inc., 626 N.Y.S.2d 391 (Sup. ct. 1995)

18 State of Connecticut Commission on Human Rights andOpportunities, Decalratory Ruling on Behalf of John/Jane Doe (January 27,2000)

19 The Minnesota statute defines sexual orientation, inrelevant part, as "having or being perceived as having a self-image oridentity not traditionally associated with one's biological maleness orfemaleness." Minn. Stat. Ann. 363.01

20 The other jurisdictions include Ann Arbor, Atlanta,Boulder, Iowa City, Jefferson County (KY), Lexington-Fayette County (KY),Louisville, Madison, New Orleans, Olympia, San Francisco, Seattle, Tucson,and West Hollywood.

21 These include Evanston (IL), Los Angeles,Minneapolis, St. Paul, Toledo, York (PA), and Ypsilanti (MI).

22 These include Cambridge, Champaign, DeKalb (IL),Harrisburg, Pittsburgh, Santa Cruz, and Urbana.

23 Paisley Currah and Shannon Minter (2000)."Unprincipled Exclusions: The Struggle to Achieve Judicial andLegislative Equality for Transgender People" William and Mary Journal ofWomen and the Law 7(1): 38-39.