"Embarrassing to all concerned": trans at work in the 1970s and 80s

The first lawsuits that "transsexuals" brought against their bosses under the Civil Rights Act went nowhere, but inspired sympathy in some judges

A child in 1972 is informed that his teacher is a woman.

Congress tried to protect women from sex discrimination in the Civil Rights Act of 1964. Soon “transsexual” men across the US were suing their bosses. They argued that Title VII – the part of the Civil Rights Act that applied to employment discrimination – protected their right to “change sex.” The transsexuals didn’t succeed in those early years, but they found sympathy among federal judges. And after a woman persuaded the Supreme Court to recognize more nuanced forms of sexism, transsexual men breezed through the opened door.

In this post I’m adopting the argot of disco-era federal judges: “transsexual” refers to a man who medicalizes or wants to medicalize in order to resemble a woman.

The Statute (1964)

Here’s the key text of Title VII:

It shall be an unlawful employment practice for an employer - 

1. To fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual … because of such individual’s race, color, religion, sex, or national origin …

“Sex” was not defined. Legislators barely debated the subject of sex at all, as the word was added late in the process and the bill’s drafters were originally concerned with stopping racism. (Thanks to a 1978 amendment, the Act now defines “sex” in a way that explicitly outlaws pregnancy discrimination.) 

In 1972 Congress amended the Civil Rights Act. While it did not change the language regarding sex, legislators did debate the topic of bias against women in the workplace – suggesting that they intended the ban on sex discrimination to protect women.

Men Seek Protection from Sexism (1970s)

Title VII doesn’t literally protect “women.” It protects everyone from discrimination on the basis of their sex. This is a standard formulation of American civil rights law. The Fourteenth Amendment of the US Constitution likewise guarantees everyone “equal protection of the laws” rather than listing the groups of people it aims to protect.

By the early 1970s, practically everyone, from gay men to transsexuals to straight guys, was petitioning federal courts to vindicate their sex-based rights.

Ruth Bader Ginsburg joined the ACLU as founding director of its Women’s Rights Project in 1972. She’d just helped secure a landmark victory for women under the equal protection clause in Reed v. Reed, persuading the Supreme Court to strike down an Idaho law that privileged men in inheritance disputes. At the ACLU, she soon developed her trademark anti-sexism litigation strategy: representing men who were harmed by sexist laws. In 1973, she argued in Fronteiro v. Richardson that husbands of servicemembers should receive “dependency allowances” according to the same terms as wives. The Supreme Court agreed. 

Ginsburg’s victories came under the equal protection clause, not Title VII, but she was playing with the same legal formulation: a ban on sex discrimination rather than an explicit protection for women.

Around the same time, gay men argued that civil rights laws protected them from discrimination. They did this by trying to shoehorn “sexual preference” or “effeminate” presentation into the term “sex.” As summarized by Massachusetts’ highest state court in 1979, these attempts were unsuccessful. That court rejected the argument that its state’s version of Title VII could be a tool for fighting homophobia because its legislature hadn’t intended it to be one. “We know that the widespread discussion of sex discrimination in recent years has focused on discrimination between men and women.” 

And finally, the 1970s saw transsexual men seek protection against sex discrimination. By the close of the decade, federal courts in California, Maryland, and New Jersey had ruled on Title VII lawsuits filed by these men. They tended to dodge the question of whether transsexual men were actually women, but in all but one of the cases referred to them using female pronouns. Most found that Title VII didn’t protect them. In the words of a New Jersey federal court (later affirmed by the Third Circuit) in 1975, the transsexual plaintiff “was discharged by the defendant school board not because of her status as a female, but rather because of her change in sex from the male to the female gender.”

That particular plaintiff, Paula Grossman, was a middle-aged elementary school teacher with a wife and children when he decided to get a “sex change.” His school board fired him. In a proceeding separate from the Title VII lawsuit, a state court agreed to treat Grossman as “incapacitated” “because of her physical condition following the sex change operation.” The “condition” it referenced was Grossman’s propensity for scaring children, not any sort of medical limitation, but the decision gave him access to a disability pension. In Grossman’s words, quoted by the New York Times (which also referred to Grossman as female), “It's a victory in the sense that if the state decides to disable anybody for any reason then they're going to have to pay for it.”

Holloway (1977): A Poetic Dissent

Ramona Holloway worked for the accounting firm Arthur Anderson when he announced a decision to medically transition. The firm suggested assuming a new role where his coworkers would not know he was male, but took no action against him until a few days after he sought to change his name in company records, when it fired him. The firm maintained that it did not fire him for “transsexualism” but rather “because the dress, appearance and manner he was affecting were such that it was very disruptive and embarrassing to all concerned.”

Holloway sued the firm under Title VII in the Northern District of California, lost, and appealed to the Ninth Circuit.

The Ninth Circuit ruled, typical of courts at the time, that Title VII didn’t protect the right to “change sex.” But one judge, Goodwin (there’s no first name on the record), dissented. Goodwin construed Title VII as protecting women – a position that was subtly incorrect since Title VII actually bans sex discrimination generally – and declared that “I would not limit the right to claim discrimination to those who were born into the victim class.”

Contrasting transsexualism with homosexuality, Goodwin wrote:

“This is not a ‘sexual preference’ case; this is a case of a person completing surgically that part of nature's handiwork which apparently was left incomplete somewhere along the line.”

Title VII was for women, Goodwin insisted, and if Holloway was a woman then Holloway was entitled to its protection:

“It seems to me irrelevant under Title VII whether the plaintiff was born female or was born ambiguous and chose to become female. The relevant fact is that she was, on the day she was fired, a purported female.”

Amid the dissent’s stridency, the word “purported” reads like a hiccup. I think the judge felt it necessary to hedge because it wasn’t clear when or whether Holloway had “sex change surgery.” In the 1970s transsexuals argued that the operation literally made them women, and some judges adopted the view. (Here’s more on how judges of this era understood sex and transsexualism.) “Purported female” could be a way of referring to a pre-op transsexual, or to a transsexual whose penis’s location was unknown.

Sommers (1982) and Ulane (1984): Rebuffing the Experts

Eventually two transsexual men convinced federal courts to withhold judgment until after they had heard evidence – including expert testimony about what sex they were.

In Sommers v. Budget Marketing, a transsexual in Iowa told his employer, Budget Marketing, that he was a woman. When his female colleagues discovered he was male, they revolted at the prospect of sharing a restroom with him. Budget fired him for lying about his sex and causing disruption in the office. A federal court rendered summary judgment for the employer for the usual reasons (Congress didn’t intend to protect transsexuals) after reviewing evidence like expert affidavits. 

The Eighth Circuit upheld the ruling. Going off on a tangent, the panel raised a question that still plagues America today:

“We are not unmindful of the problem Sommers faces. On the other hand, Budget faces a problem in protecting the privacy interests of its 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's own use?”

Karen Frances Ulane, a pilot fired by Eastern Airlines, might be the first transsexual to win a Title VII lawsuit – but his victory, in a federal court in Illinois, was soon reversed by the Seventh Circuit. The judges sounded impatient with the lawsuit’s claims. 

Defending its reliance on congressional intent and the plain meaning of the word “sex,” the court wrote:

“We do not believe that the interpretation of the word ‘sex’ as used in the [Civil Rights Act] is a mere matter of expert medical testimony or the credibility of witnesses produced in court.”

The panel concluded in a rad fem vein:

“But even if one believes that a woman can be so easily created from what remains of a man, that does not decide this case. … [I]f Eastern did discriminate against Ulane, it was not because she is female, but because Ulane is a transsexual—a biological male who takes female hormones, cross-dresses, and has surgically altered parts of her body to make it appear to be female.”

These decisions came down after transsexualism’s reputation had taken a dive thanks to research showing the medical practice didn’t help patients.

Fast Forward

The cases I outlined here are historical relics, not binding precedent, because of what came after. 

In 1989 the Supreme Court changed the course of civil rights law by holding, in Price Waterhouse v. Hopkins, that Title VII protected workers against “sex stereotyping” by their employers.

The plaintiff, Ann B. Hopkins, was a woman denied partnership in an accounting firm. Writing for the plurality, Justice William Brennan discussed some of the evidence that sexism tainted the firm’s decision:

“It takes no special training to discern sex stereotyping in a description of an aggressive female employee as requiring ‘a course at charm school.’ Nor, turning to [a senior colleague’s] memorable advice to Hopkins, does it require expertise in psychology to know that, if an employee's flawed ‘interpersonal skills’ can be corrected by a soft-hued suit or a new shade of lipstick, perhaps it is the employee's sex and not her interpersonal skills that has drawn the criticism.”

This was the first time that the Supreme Court construed such coded remarks as evidence of sex discrimination.

Price Waterhouse did not raise obvious issues of homosexuality or transsexuality, and no lawyers for those causes filed amicus briefs. From what I can tell, these advocates realized the case’s significance for them only after the decision came down: gay and trans plaintiffs could argue their bosses discriminated against them because they violated sex stereotypes, meaning they didn’t look like normie straight people.

One of the early transsexual lawsuits had anticipated Price Waterhouse: Sommers argued that he was discriminated against for being a woman with an atypical body. Since he’s not a woman, he should have argued he was a man with an atypical clothing style.

The Ninth Circuit characterized the new understanding of Title VII in 2000:

“[U]nder Price Waterhouse, ‘sex’ under Title VII encompasses both sex—that is, the biological differences between men and women—and gender. Discrimination because one fails to act in the way expected of a man or woman is forbidden under Title VII.”

That decision concerned the Gender-Motivated Violence Act, but was borrowing logic from Title VII doctrine to extend protection to transsexual victims of violence. Price Waterhouse’s influence stretched beyond employment discrimination law.

Trans plaintiffs won Title VII federal court victories throughout the 2000s. The Equal Employment Opportunity Commission under Barack Obama prosecuted employers for allegedly discriminating against trans workers. In 2020, the Supreme Court made Title VII trans inclusion the law of the land in Bostock v. Clayton County. Writing for the majority, the conservative justice Neil Gorsuch based the decision on an analysis of what “sex” meant in a 1964 dictionary — not congressional intent.

Where’s Congress?

Workers who claim to be the opposite sex pose problems to their colleagues, students, and patients. Judges called out some of those problems in the 1970s and 80s. But since then the Civil Rights Act has been interpreted to limit how employers respond.

Congress could amend the Civil Rights Act to specify that employers may, for example, designate bathrooms by sex, permit employees to refer to each other by sex, and reassign teachers who elect scary plastic surgery. But it’s never bothered.

This post was lightly edited on Sept. 27, 2024.

Related

• A female transsexual sued for employment discrimination in the late 1970s

• More on Price Waterhouse and the LGBT strategy that followed

• More on Bostock