ISBN:

Accession Number:

Abstract:

The article examines the case Smith v. City of Salem. Recently, the Sixth Circuit, in Smith v. City of Salem, held that Title VII prohibits discrimination on the basis of gender performance regardless of transsexual status, and that the Equal Protection Clause provides similar protections in public employment. The court concluded that the source of contra-gender behavior was entirely irrelevant to a Title VII inquiry. It rejected the use of labels such as transsexual, homosexual, or transvestite to deny protections to transgender individuals under Title VII or the Equal Protection Clause. Courts do not limit Title VII claims to discrimination on the basis of sexual organs. Rather, they provide legal protections to individuals that conform to judicial definitions of acceptable gender roles--masculine men and feminine women. Nonetheless, many lower courts have continued to deny Title VII protections to effeminate men and transsexuals. Smith rejects this misapplication of non-discrimination law. Recognizing the inability of the traditional/biological definitions of sex to capture the spectrum of sex-stereotypes. Smith holds discrimination because of sex includes gender discrimination. But Smith represents more than one side of a cultural divide. It brings coherence to broken doctrines and preserves the law's respect for individual choice in matters of identity and sexual expression.

Notes:

Vol. 40 Issue 1, p277-288 12p