More on Lopez v. River Oaks (trans Title VII case)

I've now had a chance to read the district court's summary judgment decision in Lopez v. River Oaks -- previously discussed here -- and it is a very interesting opinion.

As Sara Benson has already noted, this decision is particularly interesting because the Fifth Circuit, in which Texas sits, has yet to the applicability of Price Waterhouse gender stereotyping claims to anti-transgender discrimination. The district court here soundly criticized those courts that have rejected stereotyping claims:

Although these courts typically engage in analysis based primarily on perceived legislative intent to reach their conclusions, this Court is unpersuaded. The Court cannot ignore the plain language of Title VII and Price Waterhouse, which do not make any distinction between a transgendered litigant who fails to conform to traditional gender stereotypes and an “effeminate” male or “macho” female who, while not necessarily believing himself or herself to be of the opposite gender, nonetheless is perceived by others to be in nonconformity with traditional gender stereotypes. There is nothing in existing case law setting a point at which a man becomes too effeminate, or a woman becomes too masculine, to warrant protection under Title VII and Price Waterhouse.

Proceeding to the facts of this case, and the defendant's "misrepresentation defense," the court had several interesting points. First, it rejected out of hand the suggestion "that any person who dresses in a manner inconsistent with traditional gender stereotypes is necessarily deceptive." Interestingly, the court cited decades-old First Amendment cases holding that this sort of "deception" is not a valid reason to criminalize "cross-dressing."

Second, the court rejected the suggestion that employees have an affirmative duty to disclose that they are transgender. The court said in a footnote that even if there were any legally permissible reason why this information was "truly necessary," the employer "should have affirmatively sought such a disclosure."

Even assuming the information was relevant, in this case Lopez had done nothing to hide her gender history, and in fact made it fairly obvious: she gave both her adopted and birth names on her application, and listed as references two people who knew and disclosed that she was transgender.

In light of all this, and in light of the employer's stated reason for rescinding the job offer to Lopez -- Quote: "You presented yourself as a female and we later learned you are a male" -- why didn't the court grant summary judgment to Lopez?

Good question. Lopez's attorneys argued, rightly, that since Lopez's gender history and/or gender expression were irrelevant to the job, anything she did or didn't say about them was likely irrelevant. The district court appears implicitly to have rejected this view, or at least to have reserved judgment on it. Like many employers, the response of River Oaks employees to encountering a transgender applicant was confused and bumbling, so that it is difficult to tell whether it owed more to animus or mere good-faith stupidity. If this case case goes to trial, that will be the central issue.

I agree with Lambda Legal that it doesn't matter: even if you think someone out-and-out lied about something, if that something is a personal characteristic protected by law from discrimination, you are not permitted to draw any inferences about the person's character. But - regrettably - it's not hard for me to see how a judge might wish to cut an ignorant and baffled employer some slack in a situation like this.

Of course, the court didn't say anything like this -- it simply concluded that it would need to be proved whether River Oaks actually harbored concerns that Lopez was dishonest. This could make for a messy trial -- which would seem to be all the more reason for employers to treat employees' gender status as the totally irrelevant personal matter that it is.