Courts have long been in agreement that discrimination against a transgendered person is not sex discrimination actionable under Title VII of the Civil Rights Act of 1964, as amended, because “sex” means biological male or female status, not sexuality or sexual orientation.
See, for example, Holloway v. Arthur Andersen & Co., 566 F.2d 659, 662-64 (9th Cir. 1977) (rejecting the idea that “sex” as defined in Title VII could be extended to gender identification, the 9th Circuit concluded that “Congress had only the traditional notions of ‘sex’ in mind” and held that “[a] transsexual individual’s decision to undergo sex change surgery does not bring that individual, nor transsexuals as a class, within the scope of Title VII.”); Sommers v. Budget Marketing, Inc., 667 F.2d 748, 749 (8th Cir. 1982) (rejecting a transgender sex discrimination claim, the 8th Circuit held that “the Court does not believe that Congress intended … to require the courts to ignore anatomical classification and determine a person’s sex according to the psychological makeup of that individual . … Plaintiff, for the purposes of Title VII, is male because she is an anatomical male.”); Ulane v. Eastern Airlines, Inc., 742 F.2d 1081, 1085 (7th Cir. 1984), cert. denied, 471 U.S. 1017 (1985) (finding that a post-operative transsexual was not protected by Title VII, the 7th Circuit held that “The phrase in Title VII prohibiting discrimination based on sex, in its plain meaning, implies that it is unlawful to discriminate against women because they are women and against men because they are men. The words of Title VII do not outlaw discrimination against a person who has a sexual identity disorder, i.e., a person born with a male body who believes himself to be female, or [vice versa]; a prohibition against discrimination based on an individual’s sex is not synonymous with a prohibition against discrimination based on an individual’s sexual identity disorder or discontent with the sex into which they were born.”).
