Ramona HOLLOWAY, Appellant, v. ARTHUR ANDERSEN AND COMPANY, Appellee
566 F.2d 659
9th Cir.
1977
Check Treatment

*3 edies, Holloway a complaint alleging filed transsexuality.1 for her was fired that she ANDERSON, and Before GOODWIN alleging” jurisdiction under 28 U.S.C. NIELSEN,* District Judges, and Circuit 1343(4) 2000e-5(f). De and U.S.C. § § Judge. for filed a to dismiss lack of fendant motion NIELSEN, Judge: jurisdiction and for failure to state District a.claim. Holloway par then filed a cross-motion for Holloway, a transsex- Ramona Appellant, summary judgment tial on the issue of lia ual, Arthur Andersen appellee, that claims April hearing On after a on bility. firm, discrimi- accounting Company, an and motions, the district court issued a both on employment in against nated memorandum decision which held and has therefore violat- of her sex account encompassed was not within tránssexualism Rights Act VII of the Civil ed Title the;7tefimtlon''of~^séx”as thetemrappears et seq. appeals Appellant 2000e U.S.C. § 2000e-2(a)(l). Therefore, § in U.S.C. granting judgment court’s from the trial jurisdiction, it court concluded that lacked for lack of dismiss Andersen’s motion so in judgment issued defendant’s fa The district subject jurisdiction. matter Holloway timely vor. filed motion Title'-VII does not court determined that judgment, was amend the which denied. embrace transsex-ual —discriminaficmr AFFIRM. II It is clear from the the dis- record employed by first Arthur Holloway was merits trict court did reach the of Hol- and was then known as Andersen loway’s issue be- case.2 .sole Robert 1970, appellant began In fíojloway. be may us is whether an employee fore female hormone treatments. to receive with Title for discharged, consistent 1974, appellant promoted was February of of sex transformation. initiating Operator. of Head Multilith position time, Marion D. appellant informed

At this 2000e-2(a)(l) as provides § U.S.C. Passard, appellant was supervisor, follows: preparation undergoing treatment (a) employment It shall be an unlawful change surgery. In June of anatomical sex practice an employer 'review, 1974, during an official of 'añfraal individual, (1) discharge any . . . suggested appellant company a,.new-4eb-where-dier against would be or otherwise to discriminate happier respect transsexualism with to his unknown. How- individual .terms, ever, conditions, given pay raise. compensation, still * Nielsen, making facts United States Dis- consider the when determina- Honorable Leland C. tion, Judge, though trict for the Southern District of Califor- even stated that Hol- Ms. Passard nia, by sitting designation. loway was not terminated because transsex- ualism, dress, appearance because the and “but many affidavit detailed of the affecting 1. Ms. Passard’s it manner he was were such that was personnel problems appellant’s tran- embarrassing created very disruptive to all con- (red lipstick pol- appearance nail sitional cerned.” ish, hairstyle, jewelry clothing), his use his social func- the men’s room and behavior at supra. 2. See note 1 that the district court failed tions. We note

privileges employment, because of The 1972 VII in the Amendments to Title Equal Employment Opportunity . . Act of individual’s . sex » 2000e-2(a)(1) 1972 left of § unchanged, but the clear intent that “sex” as used contends legislation remedy dep was to the economic “gender,” with anonymous above rivation of as a class. women encompass transsexuals.3 gender would Admin.News, Cong. Code 2140- claims that the term sex should be Appellee The interpreting cases Title VII sex definition based on given provisions agree they anatomical characteristics.4 on place were intended to women Baker California history is a dearth of with legislative footing There men. See Company, Land Title 2000e-2(a)(1), which was enacted as n.2 Section denied, (9th 703(a)(1) of the Act of Rights Civil § Rosen L.Ed.2d 699 major P.L. The concern Con *4 feld v. Southern Pacific Company, promulgated at the time the Act was gress 1219, (9th 1971). Cir. as a basis of was race discrimination.5 Sex floor discrimination was added as a amend Giving plain meaning, the statute its this House day approved ment one before the Congress only court concludes that had the VII, hearing or prior Title without debate. traditional notions of “sex” in mind. Later Willingham Telegraph v. Macon Publishing legislative activity makes this narrow defi- Co., 1084, (5th 1975); even nition more evident. bills Several Developments Employment in the have been introduced to amend the Civil Law — of Discrimination and Title VII the Civil Rights Act prohibit to discrimination n 1964, Rights Act of 1109, 84 Harv.L.Rev. against “sexual preference.” None have (1971). been enacted into law.6 any 3. defines transsexual to be a is condi- Gender defined as I: SEX 2a: of two or “gender tion where present grammatical reversal ... is more subclasses within a class of ” any as soon as behavior can be a . . . Seventh New Webster’s even,as masculinity femininity begins, 347,795 called early or Collegiate Dictionary (1970). year age,” including one as of or those as Admin.News, Cong. 5. 1964 U.S.Code “persons readily not as classifiable male or female.” However, generally accepted presented such there is no 6. Three bills were to defini- the 94th Psychiatric 5452, Congress: Cong., judg- HR tion term 94th transsexual. 1st Sess. 166, (1975); Cong., (1975) ments about HR male-to-female transsexuals have 94th 1st Sess. opinion request Cong., (1975). varied from the that a for a sex and HR 94th 1st Sess. sign psychopathology presented is a of have severe Seven to the 95th Con- opinion persons psychologi- gress: Cong., (1977); the cally these are HR 95th Sess. 1st HR-2998, gender normal but Cong., (1977); misclassified as so 95th 1st HR Sess. any psychological Cong., (1977); condition is the direct 95th 1st Sess. HR physical result of Cong., misclassification. (1977); These 95th 1st Sess. HR 95th many opinions reflect the views Cong., different 1st Cong., Sess. HR 95th origin development of transsexualism. (1977) Cong., 1st Sess. and HR 95th 1st Some feel that transsexual identification arises Sess. psychosocial learning from and others feel that has One court found that VII Title does not genetic condition comes from inherited or protect Liberty homosexuals. In Smith Mu- al., Finney Psychological Study causes. et A of Co., F.Supp. (N.D.Ga.1975), tual Ins. Transsexualism, Proceedings of The Second concluded VII court that Title does not Interdisciplinary Symposium Dys- on Gender currently encompass against ho- Syndrome. phoria scope mosexuals and refused to extend the of Congress should, the by “Whether or is Act: not the Sex defined as “1: either two divisions of law, organisms upon distinguished respectively forbid discrimination based ‘affec- as male preference’ applicant, structural, tional or sexual or female 2: of an it is sum of the func- tional, Congress peculiarities living clear that Rights behavioral be- has not done so. The Civil ings just reproduction ‘starting point’ that subserve Act is not two inter- acting parents distinguish upon males and fe- this ployers; extension of em- Court’s limitations sexually phenomena 3a: starting point males motivated or it is both the and the point.” ending F.Supp. behavior b: SEXUAL INTERCOURSE.” at 1101. that one principle That is must construe in any not shown Congress has statutes questions the term “sex” so that constitutional than to restrict other tent all meaning.7 may possible. if at There- avoided its application VII’s expand Title fore, will court construction of Title proper mandate. Congressional the absence according is that transsexuals appellant, prohibi- Title VII’s purpose of manifest The protected, are thus avoiding possible all in employ- sex discrimination against tion protection equal problems. men and women to ensure that ment is fide relation- a bona equally, absent Assuming briefly treated has appellant job qualifications ship between properly equal protection argu raised an person’s sex. ment, we merit to Normally, find no it. any rational classification or discrimination Ill presumed is valid.' That a statute is provides Fourteenth Amendment if the classification or dis The deprive any . . shall . has “No State it contains some rational crimination life, property, without liberty, government legitimate in person relationship to law; deny person nor terest, due upon the statute based unless protection jurisdiction classification, within inherently suspect in which XIV, amend. 1.§ the laws.” U.S.Const. requires judicial case statute close scru specific equal no contains The Constitution Richardson, tiny. Graham v. against federal guarantee protection 371-72, 29 L.Ed.2d 534 but substance government; *5 in the implied Fifth has been that guarantee This court cannot conclude Bolling Due Process Clause. suspect Amendment Exam transsexuals are a class. 497, 499, 74 98 S.Ct. Sharpe, U.S. ining the indicia clas suspect of (1954). L.Ed. 884 sification, find that are not we transsexuals necessarily a “discrete and insular minori Congress had contends that Richardson, ty,” Graham v. 403 U.S. exclude transsexuals expressly chosen 29 L.Ed.2d 534 S.Ct. woujd there coverage of Title from the nor has it established transsexu protection. Appel- of equal a violation ality is “immutable characteristic deter a restrictive inter- further claims that lant accident like solely by mined of birth” of Title VII acts language pretation origin. race or v. Rich national Frontiero as a class and “at exclude transsexuals 677, 686, ardson, 411 U.S. equal pro- raises very necessarily” least Furthermore, L.Ed.2d Therefore, argues appel- problems. tection complexities merely involved in defin lant, interpretation of because narrow prohibit would ing term “transsexual"8 VII raises equal of Title suspect a determination of classification issues, must follow “car- we protection Thus, relation the rational transsexuals. statutory construction as principle” dinal apply. apply test is standard to In ship Brandeis Ashwan by Justice expressed statute, it can be Authority, ing this standard to Valley Tennessee der v. prohibition question 80 L.Ed. 688 said without 288, 347, 56 S.Ct. 7. The currently L.Ed.2d conclusion as cation, F.Supp. stricted Grossman Voyles denied, few transsexual cases aff’d [1975] view Title VII. Ralph v. Bernards mem., (1976), (N.D.Cal.1975), appeal 11 E.P.D. the court K. Davies Township plaintiff, a (CCH) the Ninth Circuit. below, The district court in Medical reached the same also 97 S.Ct. ¶ (3d but 10,686 Board Edu support schoolteach- Center, Voyles (D.N.J. 1976), a re is 8. note 3 See cause she found no changed concluded that sidered to be a female her court, er, had sex job. Though plaintiff restricting sex her sex. change supra. discrimination. The court plaintiff woman, sex to its surgery 11 E.P.D. was not terminated after but and thereafter was “plain surgery, because ¶ 10,686 clearly meaning,” the trial she had instead at con lost be case; preference” This is not a “sexual between discrimination employment race, basis of person completing and on the this is a case of a surgi- males and females rationally is re- origin part of nature’s which cally or national handiwork religion interest. governmental legitimate incomplete to a was left apparently lated somewhere along the line. argument protection An By language, proscribes the statute here, however. appropriate clearly not among employees discrimination because of construction, Title to this court’s Pursuant their completes sex. When a transsexual all available to equally remedies VII his or her transition from one sexual identi- employment individuals another, sex, ty person will have a sexu- race, or national ori religion, based on Assuming that this Indeed, plain- with the determina al classification. consistent gin. court, claiming dis undergone planned transsexuals has now sur- tion of this tiff sex, female, male their gery, presumably, crimination because of she least female, clearly state a cause of ac purposes. for most social VII. has not tion under Title plaintiff alleges This she was dis- discriminatorily be have treated claimed to while charged employment from she was female, but rather is male or cause she her new sexual assuming a transsexual who chose to because she is waited and dis- identity. employer Had claim is type her sex. This as a fe- charged plaintiff postsurgical certainly Title VII and is actionable under sex, changed male because she had of the doctrines of Due not in violation suggest discharge that the would have to be Equal Protection. Process upon classified as one sex. I fail to based purpose see valid VII to be Title served IV holding discharge that a while an em- days A individual’s decision to un- is in or a few ployee surgery, transsexual before change surgery does not dergo bring surgery, discharge by sex is not as much a individual, class, nor as a transsexuals reason of discharge days sex as a a few Title VII. scope within the This court surgery. same, after The result is the *6 coverage refuses to extend the of Title VII whenever the employer discharge sends the Congress clearly to situations that did not notice. Plaintiff alleges that she was fired contemplate. judgment of (or being becoming) female under cir- dismissing Holloway’s the district court ac- cumstances that allegedly disturbed her fel- failure to state a claim is AF- tion for low workers and therefore motivated her FIRMED. employer employment. to terminate her It seems to me irrelevant under Title VII GOODWIN, dissenting: Judge, Circuit whether the plaintiff was born female or with the agree majority While ambiguous was born and chose to become Congress probably belief that never con- was, female. The relevant fact is that she templated apply that Title VII would fired, day purported on the she was fe- transsexuals, I dissent from the decision says male. for having She she was fired plaintiffs the statute affords such no become female under controversial circum- right benefit. I would not limit stances. The employer says these circum- claim discrimination to those who were born disconcerting employ- stances are to other into the victim class. That may may ees. or not be true. Plain- says tiff that how she became female is not The only issue before us is whether a employer’s may may her business. That yet transsexual whose condition has not be- questions not be true. claim Those stationary come can state a under the court, trial; ought to be answered in in a discharged statute if because of her under- taking change they precluded by summary her sex. I read from the should not be judgment of the statute itself that she can. or Rule 12 dismissal. holds, majority as the plaintiff If discharged for that she was

claiming only treatment course of medical

undertaking a and is future sex

to achieve a for be- discharged

claiming that she was female, be al- then she should

coming to conform pleading to amend

lowed be devel- ordinarily would evidence that discovery. pretrial

oped plaintiff entitled I believe the

Because claim, I statutory win or lose alleged not discuss

claim. and remand the dismissal

I would vacate proceedings. further al., Petitioners, et BROWN

Edmund G. PROTECTION

ENVIRONMENTAL

AGENCY, Respondent. OF CALIFOR the STATE

PEOPLE OF YOUNGER, J.

NIA ex rel. Evelle Petitioners, General,

Attorney PROTECTION

ENVIRONMENTAL

AGENCY, Respondent. 73-3305, 73-3306,

Nos. 73-3307

and 77-2558. Appeals,

United States Court

Ninth Circuit. 23, 1977.

Dec. Sacramento, (argued),

Joel S. Moskowitz Francisco, Cal., Cal., Weinberger, M. San petitioners. C., (argued), Washington, T. D. Neil Proto Francisco, San (argued), Michael Graves Cal., respondent.