By Lynnea Urania Stuart

 

In light of recent developments at the Department of Justice, this was an astonishing decision.  It’s also ironic that this should take place in Oklahoma, one of the most staunchly Republican states in the country.  It was even more ironic that this should take place at the International Transgender Day of Remembrance.  On November 20, a jury awarded $1,165,000 to a transitioning professor on a case appealing to Title VII of the Civil Rights Act.¹

Title VII addresses discrimination on the basis of sex.  Attorneys for transpeople have over many years asserted that sex discrimination should also pertain to gender identity, though others have held that Title VII only pertains to the traditionally intended dichotomous sex and nothing more.  President Barack Obama sided with the former view when he issued guidelines regarding employment of transpeople.²  Those connected with the current administration hold the latter view, culminating in a memo issued by Attorney General Jeff Sessions asserting on October 5 that transpeople are excluded from Title VII.³

But the U.S. District Court said in effect, “Not so fast.”  In the course of the proceedings of Dr. Rachel Tudor v. Southeastern Oklahoma State University and the Regional University System of Oklahoma, the court addressed a 2007 case: Etsitty v. UTA, a precedent involving employment termination of a transsexual upon which the Defense relied.⁴  Not only did Tudor’s case pass the initial hearing to establish a prima facie case, overcoming Etsitty, it went to full civil trial with a jury and the Plaintiff won.  Like so many other cases of this nature, the whole country could hear the gavel going down.

 

BACKGROUND OF THE TUDOR CASE

Rachel Tudor, PhD was employed by Southeastern Oklahoma State University when she advised the university that she was transitioning from male to female.  The decision from the initial hearing states what happened next:

“Plaintiff argues that she suffered more than a handful of sporadic insults, incidents, or comments. Rather, she argues that every day over the course of a four-year period she had restrictions on which restrooms she could use, restrictions on how she could dress, what makeup she could wear. She also was subjected to hostilities from administrators targeting her gender, such as using an improper pronoun to refer to her and other gender-based hostilities.”⁵

This culminated in denial of an application for tenure and subsequent dismissal from the university.⁶ The university did not have a policy at all addressing transgender discrimination.⁷ The university also claimed that the Plaintiff “is not subject to protection under Title VII because her status as a transgender person is not a protected class, relying on Etsitty v. Utah Transit Auth., 502F.3d 1215, 1215, 1220 (10 Cir. 2017).”⁸

 n which case, the Etsitty case offers the central argument in Tudor.  We must go back and look at the context of the argument.

 

THE ETSITTY CASE

The full name of this Utah case is Krystal S. Etsitty, Plaintiff-Appellant, v. Utah Transit Authority;  Betty Shirley, in her individual and official capacities, Defendants-Appellees.  Betty Shirley was the Operations Manager at UTA.  Etsitty was hired by UTA 4 years after she had begun hormone replacement therapy but was still pre-operative at the time of her termination.  But she had presented herself as a male during her training period.⁹

After her hire she met with her supervisor Pat Chatterton, telling him that she was in transition, would present as a female and would be using female rest rooms.  Chatterton offered his support and expressed that there should be no issue with her transitioning at work.  But then the Operations Manager heard a rumor that a male driver was using makeup and using female rest rooms.  She and the Human Resources Generalist arranged a meeting with Etsitty and expressed concern about UTA’s liability, especially if Etsitty switched back and forth between male and female rest rooms.  UTA placed Etsitty on administrative leave, then terminated her, indicating that after gender confirmation surgery she would be eligible for rehire.  Etsitty filed suit, claiming unlawful gender discrimination, and violating Title VII and the Equal Protection Clause of the Fourteenth Amendment.  Etsitty claimed the termination was specifically because she was transsexual and that this was about not conforming to UTA’s expectations of stereotypically male behavior.  UTA argued that transsexuals are not a protected class and not covered under Title VII.  The court agreed and this was backed up at the Appellate level.¹⁰

When it comes to anyone seeking out precedents, attorneys will be inclined to seek out the most recent examples.  The reason is logical.  Rulings get reversed and courts look at why they’re reversed.  For years, Etsitty v. UTA set the standard for Title VII appeals with respect to transsexual status.

 

AN EVOLVING PHILOSOPHY OF SEX AND GENDER

This occurred before the election of Barack Obama to the White House.  The Obama Administration didn’t even open up to the idea of trans rights in the first term, following the vernacular at the time.  The public mind linked trans rights to LGBT rights generally, most specifically with respect to same sex marriage.  In his first term, the president stated his ideas were “evolving”.¹¹ The person who seems to have influenced the president the most with respect to transpeople was Vice President Joe Biden who never failed to exude a happy live and let live philosophy.¹²  Not until 2012 do we find any ruling by the Equal Employment Opportunity Commission (EEOC) stating that Title VII does indeed apply to transpeople.¹³

This all reflected a widening discussion of sex and gender all over the United States.  Since the founding of the nation, sex and gender had been regarded as one and the same, immutable and obvious.  Any deviation was regarded as a monstrosity, abnormal, abominable, and deserving of the most intense punishment in the name of Almighty God.  It’s a philosophy that exacted infant surgeries upon those intersex individuals whose variations were externally obvious.  Those whose variations weren’t were summarily kept hush-hush and society pretended they didn’t happen.  In all that time nobody even began to consider that sex and gender may not be the same thing and when Christine Jorgenson hit the American press like wildfire in the 1950’s her case aroused ridicule and condemnation.¹⁴ The idea of “transgender” in any capacity was considered patently absurd.  In many religious communities it still is.

When transpeople gained recognition in the popular mind it was, unfortunately, through the sex industry.  After all, 19% of us turned to sex work to survive at some time or other and that represents a number in the hundreds of thousands.¹⁵ A lot of that sex work translated into pornography. That’s what trans visibility was to the public for a great many years, feeding stereotypes that ignored the 81% who never sold their bodies for money, food, or a place to sleep.

It would take a great many more years for a large percentage of the public to grasp the idea that the gender dichotomy is wrong and that sex and gender for some people do not align, driving dysphoric individuals to seek medical intervention.  The ones most resistant to this view are the religious who have never relinquished their claims to reserving interpretations of language as an exclusive right of the clergy, whether Roman Catholic, Orthodox, or Protestant.

Since the rise of Jerry Fallwell’s Moral Majority in the 1980 election we have seen a gradual Dominionist hijack of the GOP.  Today’s Republicans aren’t typically Reagan style Republicans let alone Lincoln style Republicans.  After all, civil rights was a Republican issue in the form of Abolitionism when that party first gained power in 1860. But in the 2016 election, the GOP listed its endorsement of anti-transgender legislation in its platform pursuant to the demands of Evangelical Dominionist organizations.¹⁶

But the Oklahoma jury in Tudor demonstrated that civil rights need not and should not be a partisan issue, even though the GOP sought to make it so.  It remained in the spirit of the original Civil Rights Act which, though pushed through by President Lyndon Johnson, was supported on both sides of the aisle.¹⁷

 

A JUDICIAL REBUKE

It’s easy to see how the change in the national discussion concerning sex and gender makes a difference in terms of civil rights.  If sex and gender are immutable, exacted by a gender dichotomy, then there should be no need for the civil rights of a people deemed not to exist.  If, however, variations happen, then it behooves people to find a way to live with people who embody those variations.  This was the message of the Oklahoma jury with its decision on Dr. Tudor’s award and what Judge Robin J. Cauthron admitted in that trial concerning Title VII.

Though caution is still warranted given the actions of the Justice Department earlier this year, Etsitty v. Utah Transit Authority can no longer be regarded as a precedent offering definite protection from Title VII litigation.  The reason for caution is obvious.  This case will very likely be re-addressed at the Appellate level.  It may even reach the U.S. Supreme Court.  We may see reversal before a ruling at the highest court.

The Supreme Court is by no means a lock in favor of trans rights, especially while the GOP remains so determined to replace retiring justices throughout the federal judiciary with Gorsuch-style Conservatives who assert Justice Anthony Scalia’s assertions that interpretation must be made upon originally conceived definitions, not definitions that evolve as society evolves.¹⁸

It means stacking the court system with people committed to the Dominionist agenda, leaving us with a only prayer of hope that facts will rule minds instead of whether they get to participate in communion services at church.  After all, the Supreme Court didn’t rule in Obergefell v. Hodges with a wide margin at all.  The vote was 5-4.¹⁹

Obergefell was the 2015 decision that rendered same-sex marriage legal nationwide.  That happened with a moderately Conservative court, and with the retirement of an aging Justice Ruth Ginsburg, the court could become decisively Conservative with a possible future reversal of Obergefell, and consequent hostility toward trans rights generally.²⁰

But in the meantime we can be thankful that the Oklahoma jury in Tudor v. UTA understood the issues of sex and gender, rendering the verdict that they did.  It’s a decision that could go a long way in a nation whose leaders have been whittling away at the rights of transpeople almost every month.  We can only hope that the spirit of this jury will also be represented in the decisions to come, judges and juries examining facts despite Conservatives pointing to the judges as “activists”.  Of course, if broad and equal examination of fact is the music of activism, play on.  Play on.

_____________________________

REFERENCES:

Featured Image:  a black and white detail of a widely circulated portrait of Dr. Rachel Tudor (source unknown) superimposed upon an image from Southeastern Oklahoma State University (Wikimedia).

1. “Jury Awards Transgender Professor 1.1 Million Discrimination Case” NBC News (November 21, 2017, accessed November 22, 2017) https://www.nbcnews.com/feature/nbc-out/jury-awards-transgender-professor-1-1-million-discrimination-case-n822646
2. Sandra Pullman. “EEOC Holds That Title VII Prohibits Discrimination on the Basis of Transgender Status”American Bar (May 2012, accessed November 23, 2017) https://www.americanbar.org/content/newsletter/groups/labor_law/ll_hottopics/2012_aball_hottopics/5-2012hot_eeoc.html
3. Charlie Savage. “In Shift, Justice Dept. Says Law Doesn’t Bar Transgender Discrimination” New York Times (October 5, 2017, accessed November 22, 2017) https://www.nytimes.com/2017/10/05/us/politics/transgender-civil-rights-act-justice-department-sessions.html
4. Cauthron, Robin J., U.S. District Judge “Memorandum Opinion and Order” Rachel Tudor v. Southeastern Oklahoma State University and the Regional University System of Oklahoma (October 26, 2017, accessed November 22, 2017) Case No. CIV-15-324-C, p. 4. https://www.laborandemploymentlawcounsel.com/wp-content/uploads/sites/224/2017/11/Tudor-v-SE-Oklahoma-State-U-No-15-324-C-WD-OK-10-26-2017.pdf
6. Ibid, p. 3.
7. Ibid, p. 1.
8. Ibid, p. 4.
9. Ibid.
10. S. Court of Appeals, 10^th Circuit. “Etsitty v. UTA” FindLaw (September 20, 2007, accessed November 22, 2017) http://caselaw.findlaw.com/us-10th-circuit/1468866.html
11. Ibid.
12. Zeke J. Miller. “Obama Says He Didn’t Mislead on Gay Marriage” Time (February 11, 2015, accessed November 23, 2017) http://time.com/3704760/barack-obama-gay-marriage-david-axelrod/.
13. Glenn Thrush and Jennifer Epstein. “W.H.” Biden forced Obama’s hand” Politico (May 10, 2012, accessed November 23, 2017) https://www.politico.com/story/2012/05/obama-expected-to-speak-on-gay-marriage-076103.
14. Pullman
15. Chris Wild “Ex-GI Becomes Blonde Beauty” Mashable (1951, Accessed November 23, 2017) http://mashable.com/2015/04/27/christine-jorgensen/#wuwvvtl8lGq2.
16. James, S. E., Herman, J. L., Rankin, S., Keisling, M., Mottet, L., & Anafi, M. “The Report of the 2015 U.S. Transgender Survey” (2016) Washington, DC: National Center for Transgender Equality, p. 158.
17. Republican National Platform Committee. “Republican Platform, 2016” (presented to the delegates of the GOP National Convention August 2016)
18. (n.a.) “Delivering on a Dream: The House and the Civil Rights Act of 1964” Oral History (n.d., accessed November 23, 2017) http://history.house.gov/Exhibitions-and-Publications/Civil-Rights/1964-Essay/.
19. Jonathan HJ. Adler “Gorsuch’s judicial philosophy is like Scalia’s – with one big difference” Washington Post (February 1, 2017, accessed November 23, 2017) https://www.washingtonpost.com/opinions/gorsuchs-judicial-philosophy-is-like-scalias–with-one-big-difference/2017/02/01/44370cf8-e881-11e6-bf6f-301b6b443624_story.html?utm_term=.9ab3ee39d615.
20. (n.a.) “James Obergefell, et al, Petitioner” Oyez, Docket 14-556, Supreme Court (June 26, 2015, accessed November 23, 2017) https://www.oyez.org/cases/2014/14-556.
21. Jonathan Turley. “Opinion: Ginsburg gambled to stay and now she may lose her legacy” The Hill (April 10, 2017, accessed November 23, 2017) http://thehill.com/blogs/pundits-blog/the-judiciary/328151-ginsburg-gambled-to-stay-on-the-supreme-court-now-she-may.