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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).

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