Gender Dysphoria USA
In 1989, however, the United States Supreme Court signaled a possible change in the federal approach to gender dysphoria.
In Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S. Ct. 1775, 104 L. Ed. 2d 268 (1989), the Court held that Title VII barred discrimination of a woman who failed to "act like a woman" or to conform to socially-constructed gender expectations.
This approach would seem to indicate that the word "sex" in Title VII encompasses both gender and sex, and forbids discrimination because of one's failure to act in a way expected of a man or a woman. Schwenk v. Hartford, 204 F.3d 1187, 1201-02 (9th Cir.2000).
The United States Supreme Court has stated that Congress, in barring discrimination based on sex, "intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes." Price Waterhouse v. Hopkins, supra, 490 U.S. at 251, 109 S. Ct. at 1791, 104 L. Ed. 2d at 288
Again, as further evidence of this change in approach, Rosa v. Park West Bank & Trust Co., 214 F.3d 213 (1st Cir.2000), found under the Equal Credit Opportunity Act, 15 U.S.C. 1691 (1994), that discrimination against a man because he was wearing a dress could constitute sex discrimination. Id. at 214.
The states are split on this issue. for example, in Sommers v. Iowa Civil Rights Comm'n, 337 N.W.2d 470, 474 (Iowa 1983), the Iowa Supreme Court concluded that the word "sex" in Iowa's Civil Rights Act did not include transsexuals and that sexual discrimination was intended to prohibit conduct which, had the victim been a member of the opposite sex, would not have otherwise occurred.
In Underwood v. Archer Mgmt. Servs., Inc., 857 F. Supp. 96, 98 (D.D.C.1994), the court, applying local federal law, held that "sex" in the District of Columbia's Human Rights Act did not include transsexuality because the District's Commission on Human Rights had defined the term to mean the state of being male or female and the conditions associated therewith.
Moreover, although the statute also included a prohibition against sexual orientation discrimination, transsexuality was not the same thing as homosexuality, and the complaint had been devoid of any reference to plaintiff's sexual orientation. Ibid.