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Prohibiting Discrimination on the Basis of Gender Identity and Expression in the Courts and the Legislatures City University of New York Law Review Volume 7 Issue 1 Spring 2004 Battling Gender Orthodoxy: Prohibiting Discrimination on the Basis of Gender Identity and Expression in the Courts and the Legislatures Carolyn E. Coffey CUNY School of Law Follow this and additional works at: https://academicworks.cuny.edu/clr Part of the Law and Gender Commons Recommended Citation Carolyn E. Coffey, Battling Gender Orthodoxy: Prohibiting Discrimination on the Basis of Gender Identity and Expression in the Courts and the Legislatures, 7 N.Y. City L. Rev. 161 (2004). Available at: 10.31641/clr070105 The CUNY Law Review is published by the Office of Library Services at the City University of New York. For more information please contact [email protected]. Battling Gender Orthodoxy: Prohibiting Discrimination on the Basis of Gender Identity and Expression in the Courts and the Legislatures Acknowledgements The author thanks the New York City Law Review editorial board, staff, adviser Andrea McArdle, mentor Ruthann Robson, and Brian J. Venerus for their assistance and support. This article is available in City University of New York Law Review: https://academicworks.cuny.edu/clr/vol7/iss1/6 BATTLING GENDER ORTHODOXY: PROHIBITING DISCRIMINATION ON THE BASIS OF GENDER IDENTITY AND EXPRESSION IN THE COURTS AND IN THE LEGISLATURES Carolyn E. Coffey* INTRODUCTION After years of discrimination and suffering in the most diverse city in the world, an often overlooked group of people achieved a victory in 2002, when the New York City Council amended the City’s human rights law to define the protected class of “gender” to include transgendered people. Finally, this made it clear that dis- crimination against transgendered people would not be tolerated.1 Considering the absence of legal recourse at the state and national levels, local ordinances like New York City’s amended law currently provide transgendered people with their only protection against discrimination. This Article focuses on case law and legislation regarding the rights of transgendered people in the workplace and in the public arena. The Article examines the different legal strategies and out- comes of various cases brought by transgender plaintiffs in court- rooms. It also examines attempts to use the legislative process to advance transgendered people’s rights, and discusses different the- oretical perspectives that have emerged in the transgender battle. Part I provides an overview of the subject of transgenderism; Part II broadly examines the discrimination that transgendered individu- als face daily; Part III describes federal gender and transgender dis- crimination case law; Part IV discusses state transgender discrimination case law; Part V describes local ordinances that exist across the country to protect transgendered people; and Part VI examines the significance of New York City’s amendment to its def- inition of gender. The Article concludes that a combination of strategies will ultimately best serve the transgender movement in * J.D., City University of New York School of Law, 2004; B.A., Franklin & Marshall College, 1994. The author thanks the New York City Law Review editorial board, staff, adviser Andrea McArdle, mentor Ruthann Robson, and Brian J. Venerus for their assistance and support. Winner of 2003 CLAGS Graduate Student Paper Award Competition. 1 NEW YORK, N.Y., ADMIN. CODE § 8-102 (2002). 161 162 NEW YORK CITY LAW REVIEW [Vol. 7:161 the battle to overcome one of the last bastions of civil rights discrimination. I. WHAT IS “TRANSGENDERISM”? “Unless you have actually experienced transsexualism, you cannot conceive of the trauma of being cast in the wrong body. It is the imprison- ment of body and of soul.”2 The terms “gender” and “sex” often are used interchangeably, however, they have different definitions and connotations. Gener- ally, the term “sex” is used in reference to a person’s biological identity, while “gender” usually refers to culturally ascribed or so- cially constructed characteristics of masculinity and femininity.3 Such characteristics vary with different societies and cultures, but a transgendered person is considered someone who possesses tradi- tional gender characteristics that are different from his or her sex.4 Although individuals are assigned a sex at birth, some males grow up feeling they were meant to be females and some females grow up feeling they were meant to be males. A transgendered person’s desire to be the opposite sex may become powerful at an early age.5 The American Psychiatric Association considers transgender- ism a medical condition, and classifies it as a specific form of a 2 Patricia A. Cain, Stories from the Gender Garden: Transsexuals and Anti-Discrimina- tion Law, 75 Denv. U. L. Rev. 1321, 1343 (1998) (quoting MARIO MARTINO WITH HARRI- ETT, EMERGENCE: A TRANSSEXUAL AUTOBIOGRAPHY (1977)). 3 Jamison Green, Introduction to PAISLEY CURRAH & SHANNON MINTER, NAT’L CTR. FOR LESBIAN RIGHTS, TRANSGENDER EQUALITY: A HANDBOOK FOR ACTIVISTS AND POLICY- MAKERS 2 (2000) [hereinafter Introduction to TRANSGENDER EQUALITY]; see also Jillian Todd Weiss, The Gender Caste System: Identity, Privacy, and Heteronormativity, 10 LAW & SEXUALITY 123, 124 n.3 (quoting MILDRED L. BROWN & CHLOE ANNE ROUNSLEY, TRUE SELVES 19 (1996)). 4 See Francisco Valdes, Queers, Sissies, Dykes, and Tomboys: Deconstructing the Confla- tion of “Sex,” “Gender,” and “Sexual Orientation” in Euro-American Law and Society, 83 CAL. L. REV. 1, 39, 66 (1995) (arguing generally that traditionally, men are supposed to be strong, assertive, virile, macho and rational, whereas women are supposed to be weak, passive, quiescent and emotional). One source estimates that approximately one to four percent of the world’s population is intersexed, that is, born with ambiguous genitalia. Julie A. Greenberg, Defining Male and Female: Intersexuality and the Collision between Law and Biology, 41 ARIZ. L. REV. 265, 267 (1999). However, because inter- sexed people are characterized by ambiguous genitalia, “intersexed” and “trans- gendered” are not interchangeable terms. Introduction to TRANSGENDER EQUALITY, supra note 3, at 5. 5 See Jill Pilgrim, David Martin & Will Binder, Far from the Finish Line: Transsexual- ism and Athletic Competition, 13 Fordham Intell. Prop. Media & Ent. L.J. 495 (2003) (discussing the debate over whether gender identity problems are psychiatric or bio- logical in origin). 2004] BATTLING GENDER ORTHODOXY 163 broader psychiatric disorder called “gender identity disorder.”6 A diagnosis is confirmed when gender dysphoria has been present for at least two years and the feelings of having the wrong identity are alleviated by cross-gender identification.7 According to one medical source: Transsexualism is a Gender Identity Disorder in which there is a strong and on-going cross-gender identification, i.e., a desire to live and be accepted as a member of the opposite sex. There is a persistent discomfort with his or her anatomical sex and a sense of inappropriateness in the gender role of that sex.8 The currently accepted and effective treatment for the syn- drome is hormone therapy and surgical reconstruction, along with counseling and other psychotherapeutic treatments, such as elec- trolysis and speech therapy.9 Transgendered people who have un- dergone such treatments to change their gender are referred to as post-operative transsexuals, whereas those who have not completed the transition sometimes are referred to as pre-operative transsexu- als, and those who have chosen to not take such measures may be referred to as non-operative transsexuals.10 One estimate puts the number of pre-operative and non-operative transgendered people at approximately one out of 1,600 people, or, in the United States, nearly 225,000 people.11 6 AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS IV 533 (4th ed. 1994) [hereinafter DIAGNOSTIC AND STATISTICAL MANUAL]. 7 Id. 8 R. Reid et al., Transsexualism: The Current Medical Viewpoint, Press for Change (1996), at http://www.pfc.org.uk/medical/mediview.htm (last visited Aug. 11, 2003) (on file with the New York City Law Review). See also PsychNet-UK, Disorder Information Sheet: Gender Identity Disorder (Jul. 20, 2003), at www.psychnet-uk.com/dsm_iv/gen- der_identity_disorder.htm (describing the diagnostic criteria for gender identity dis- order as being “a strong persistent cross-gender identification (not merely a desire for any perceived cultural advantages of being the other sex)”); AllPsych Online, Psychiat- ric Disorders: Gender Identity Disorder (May 15, 2004), at http://allpsych.com/disorders/ sexual/genderidentity.html (stating that symptoms include “a strong and persistent identification with the opposite gender. There is a sense of discomfort in their own gender and may feel they were ‘born the wrong sex’”). 9 Reid et al., supra note 8. 10 KATE BORNSTEIN, GENDER OUTLAW: ON MEN, WOMEN AND THE REST OF US 67 (1994). See also Introduction to TRANSGENDER EQUALITY, supra note 3, at 3. 11 Kristine W. Holt, Comment, Reevaluating Holloway: Title VII, Equal Protection, and the Evolution of a Transgender Jurisprudence, 70 Temple L. Rev. 283, 301 (1997) (quoting Marla Aspen, De-Medicalization of Transsexualism and De-Classification of Sex, 65 Tapestry J. 11, 11, 20 (1993)). However, precise figures are difficult to calculate. See, e.g., The National Transgender Advocacy Coalition, TG Numbers: Occurrence Within U.S. Popula- tion and Others (June 4, 2003), at www.ntac.org/research/details.asp?did=37 (listing results from several studies of transgender behavior, but admitting that such figures 164 NEW YORK CITY LAW REVIEW [Vol. 7:161 The term “gender identity” refers to the gender that people psychologically embrace–be it male, female or something in be- tween.12 “Gender expression” refers to the gender that people ap- pear to be based on external male or female characteristics, including dress, speech, and mannerisms.13 This Article uses the umbrella term “transgender” to refer to anyone whose gender identity or expression differs from conventional or stereotypical ex- pectations of sex, including all pre-operative, post-operative and non-operative transgendered people.
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