The question here is whether discriminating against someone on the basis of his or her gender non-conformity constitutes sex-based discrimination under the Equal Protection Clause. [...] We hold that it does.
In an interesting decision, citing Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the three judge panel of the court* determined that discrimination for gender non-conformity is already protected under the constitution as discrimination based on sex. In Price the plaintiff successfully maintained a discrimination claim where she alleged she was denied a promotion because she didn’t act like the defendants believed a woman should.
In this case, the State’s attorneys had argued that there was no separate constitutional protection for transsexuals. In thier ruling, the court has said it’s not needed as it falls squarely into gender based discrimination which is already prohibited.
The [Price] Court noted that “[a]s for the legal relevance of sex stereotyping, we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotypes associated with their group . . . .” Id. at 251.
A person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes. “[T]he very acts that define transgender people as transgender are those that contradict stereotypes of gender-appropriate appearance and behavior.” [citations omitted]. There is thus a congruence between discriminating against transgender and transsexual individuals and discrimination on the basis of gender-based behavioral norms.
Chalk one up for our side.
Read the full opinion.
*in an interesting side note, CNN reports that one of the judges, a 2005 Bush appointee is considered one of the most conservative federal judges on the bench today.