Julie A. Greenberg (Thomas Jefferson School of Law) has a new article available at SSRN: What do Scalia and Thomas Really Think About Sex? Title VII and Gender Nonconformity Discrimination: Protection for Transsexuals, Intersexuals, Gays and Lesbians. Download it here; the abstract is below:
“Title VII bans discrimination because of sex. Sex discrimination clearly includes discrimination against men because they are men and women because they are women. Whether it also bans discrimination against transsexuals, intersexuals, gays and lesbians who suffer discrimination based upon their gender nonconformity, sex nonconformity or sexual orientation nonconformity is less clear. Until recently, the answer would have been an unambiguous no; Title VII did not protect any of these persons from discriminatory employment practices. During the last few years, however, courts have begun to protect these traditionally marginalized individuals based upon the gender nonconformity theory established by the U.S. Supreme Court in Price Waterhouse v. Hopkins. This article analyzes the evolution of Title VII’s discrimination”because of sex”jurisprudence in the federal district and circuit courts and the likelihood that the U.S. Supreme Court will allow transsexuals, intersexuals, gays and lesbians to state a Title VII cause of action if they suffer discrimination because of their failure to conform to sex and gender norms.”
