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Even the United States Court of Appeals for the Sixth Circuit, which has extended protection to transsexuals under the Price-Waterhouse theory, has explained that an individual's status as a transsexual should be irrelevant to the availability of protection under Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C.S. § 2000e et seq. The United States Court of Appeals for the Tenth Circuit has explicitly declined to extend Title VII protections to discrimination based on a person's sexual orientation. Although there is certainly a distinction between a class delineated by sexual orientation and a class delineated by sexual identity, the court is reluctant to expand the traditional definition of sex in the Title VII context. Scientific research may someday cause a shift in the plain meaning of the term "sex" so that it extends beyond the two starkly defined categories of male and female. However, the Tenth Circuit concludes that discrimination against a transsexual because she is a transsexual is not discrimination because of sex. Therefore, transsexuals are not a protected class under Title VII.
Appellant Krystal Etsitty, a transsexual and former employee of Utah Transit Authority ("UTA"), sued UTA and Betty Shirley, her former supervisor, pursuant to 42 U.S.C. § 2000e-2(a)(1) ("Title VII") and 42 U.S.C. § 1983. In her complaint, she alleged the defendants terminated her because she was a transsexual and because she failed to conform to their expectations of stereotypical male behavior. She alleged that terminating her on this basis constituted gender discrimination in violation of both Title VII and the Equal Protection Clause of the Fourteenth Amendment. The defendants filed a motion for summary judgment and the district court granted the motion, holding that transsexuals were not a protected class for purposes of Title VII and the prohibition against sex stereotyping recognized by some courts should not be applied to transsexuals. The district court also concluded that even if a transsexual could state a Title VII claim under a sex stereotyping theory, there was no evidence in this case that Etsitty was terminated for failing to conform to a particular gender stereotype. Appellant challenged the district court’s decision.
The appellate court found that with the record and arguments before the court, discrimination against a transsexual because she was a transsexual was not "discrimination because of sex." Therefore, transsexuals were not a protected class under Title VII and the appellant could not satisfy her prima facie burden on the basis of her status as a transsexual. Although the appellate court assumed that the appellant met her prima facie burden with respect to her claim of sex discrimination based on her failure to conform to sex stereotypes, there was no evidence in the record of any weaknesses, implausibilities, inconsistencies, or contradictions in the employer's asserted legitimate, nondiscriminatory reason for the appellant's termination, her intent to use the women's public restrooms while wearing the employer's uniform, despite the fact she still had male genitalia. Thus, the appellant failed to raise a genuine issue as to whether the employer's proffered reason was pretextual.