Transgenderless

By Stevie V. Tran and Elizabeth M. Glazer

Legal protection from discrimination on the basis of gender identity has been reserved for perfect gender-nonconformists.  These are plaintiffs such as Jimmie Smith and Phelicia Barnes, who were able to state actionable claims under Title VII’s prohibition against employment discrimination on the basis of sex because they were perfectly gender-nonconforming men — that is, individuals who behave like women but who are “really” (according to the courts that decided their cases) men.  Relying on the Supreme Court’s decision in Price Waterhouse v. Hopkins — which expanded the scope of Title VII’s prohibition against sex discrimination to cases in which plaintiffs experienced discrimination for failing to conform to stereotypical norms about masculine and feminine behavior — the Barnes and Smith courts offered protection to transgender victims of employment discrimination.  The protection of what this Article calls “perfect” gender-nonconformists such as Smith and Barnes is an important step toward protecting transgender people from discrimination.