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95 Calif. L. Rev. 561 (2007)
Sex Stereotyping Per Se: Transgender Employees and Title VII

handle is hein.journals/calr95 and id is 565 raw text is: Sex Stereotyping Per Se: Transgender Employees and Title VII Ilona M. Turnert INTRODUCTION Gender stereotypes are a central part of our experience. Conformance with a coherent gender presentation, where clothing and presentation match up with body parts and secondary sex characteristics, can be a significant element of how we define another being as human.' Gender norms are so powerful and pervasive that when someone dares to transgress them openly, destabilizing the presumed synchronicity of sex and gender, that person will almost inevitably face some kind of punishment, with consequences ranging from mere social hostility to discrimination in employment and housing to outright violence. The outlook might appear bleak for those who do not conform to gender stereotypes. However, this Comment examines one area in which transgender2 Americans have made rare progress in recent years: federal employment discrimination law. Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment because of ... sex.3 Although gay and lesbian employees who experience discrimination have attempted to bring Title VII claims for years, based in part on the theory that discrimination based on sexual orientation is per se sex discrimination, such claims were and are still regularly denied by Copyright © 2007 California Law Review, Inc. California Law Review, Inc. (CLR) is a California nonprofit corporation. CLR and the authors are solely responsible for the content of their publications. t Associate, Cohen, Weiss & Simon LLP; J.D., School of Law, University of California, Berkeley (Boalt Hall), 2006. I would like to thank Shannon Minter, Melissa Mortazavi, and Professor Kathy Abrams for their early guidance on this project, and Randi Barnabee, counsel for the plaintiff in Smith v. City of Salem, for sharing her insights and briefs from that case. I am especially indebted to Hank Dempsey, Nirit Sandman, Rebecca Hart, and all the other skilled and hard-working editors of the California Law Review who worked on this piece. I. See, e.g., Abigail W. Lloyd, Defining the Human: Are Transgender People Strangers to the Law?, 20 BERKELEY J. GENDER L. & JUST. 150 (2005) (examining various theories of the normal to show how powerful gender norms, including those articulated in court decisions, sometimes operate to exclude transgender people from the very category of humans). 2. I use the word transgender as an umbrella term that includes transsexuals, cross-dressers, and anyone else whose gender identity or expression is significantly non-traditional. 3. 42 U.S.C. § 2000e-2(a) (2000). 561

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