Transsexualism, Sex Stereotyping, and Price Waterhouse V. Hopkins: A Staircase to Paradise or a Slippery Slope?

I. INTRODUCTIONAs civil rights movement of early 1960s gained strength and attention, it took center stage before our nation and Congress, culminating in passage of Civil Rights Act of 1964 (the Act).1 It was passed despite stubborn, political resistance within Congress and sometimes brutal, physical resistance outside of Congress which victimized many of our nation's black2 citizens as well as others who supported civil rights movement. As coalition supporting Civil Rights Act gathered strength and necessary votes to bring about its passage, waiting in wings was National Women's Party and other influential members of women's equal rights movement who were politically engaged in bringing equality of rights and opportunity to women. Out of political and emotional momentum generated by confluence of civil rights movement and women's equal rights movement came Civil Rights Act, principal purpose of which, at time of its enactment, was to prohibit racial discrimination. In what seemed to some like an offhand result, was added to Title VII3 of Act, thereby providing equality of opportunity in employment for women by prohibiting employment related discrimination because of sex. The women's equal rights movement had triumphed; women were now a protected class.This article begins with a discussion of legislative history of Act and its Title VII which prohibits discrimination in employment opportunity. It then turns to analyzing jurisprudential transformation of relatively simple notion of protecting equality of employment opportunity of women in workplace to an extension of that protection to transsexuals in workplace by applying what has been referred to as stereotyping, as that rationale was developed by Supreme Court in Price Waterhouse v. Hopkins.4 Recent judicial opinions extending Title VII's protection to transsexuals, based upon Price Waterhouse sex stereotyping rationale, expanded meaning of as it is found in Title VII and awakened our curiosity, leading to this article. In this article, we discuss limited issue of whether extension of protection of Title VII to transsexuals as a protected class is consistent with legislative intent leading to passage of Title VII.5II. LEGISLATIVE HISTORY OF TITLE VII: LADIES DAY IN THE HOUSE OF REPRESENTATIVESA. Historical BackgroundThe passage of Civil Rights Act, including its Title VII dealing with employment, followed President John F. Kennedy's efforts to overcome civil unrest sparked by recent integration efforts.6 Memorable examples of that unrest include resistance by state officials to a court decree ordering James Meredith, who was black, admitted to University of Mississippi in 1962.7 Other disruptions occurred in May of 1963, in Birmingham, Alabama where, under command of Eugene Bull Conner, Birmingham's chief, police dogs, fire hoses and other weapons were used against apparently well-behaved demonstrators protesting discrimination.8In response to these events and deepening national concern over other recent civil rights disturbances, on June 11, 1963, President Kennedy addressed nation on television, setting tone and providing a moral compass for Civil Rights Act of 1964.9 He spoke passionately of delay of hundred years that had passed since President Lincoln had freed slaves, noting that heirs, their grandsons, are not fully free.10 Eight days later, on June 19, 1963, President Kennedy delivered a message to Congress, along with a comprehensive civil rights bill that was principally focused on evil of racial inequality.11 Indeed, according to an interpretive memorandum entered into Congressional Record by Title VII's co-managers in Senate, Senators case and Clark, the very purpose of Title VII is to promote hiring on basis of job qualifications rather than on basis of race or color. …