In the case, a lesbian named Dawn Dawson worked in a hair salon full of gays, lesbians, gender benders, and general nonconformists. After a year, she was fired by her pre-op transsexual boss. As is common in employment-discrimination cases, the employer claimed she was fired for poor performance (rudeness and inconsistency) and the employee claimed illegal discrimination. Dawson asserted she was discriminated against based on her sex, her sexual orientation, and the fact that she was a masculine-appearing woman. She said this violated both federal and state law. She lost on summary judgment on both counts — but her loss had nothing to do with the failure to include "gender identity" in either state or federal law or with the hair salon's ability to say it likes gays but not gender benders.

(1) Federal claim in Dawson

First, take the federal claim Dawson made. Under Title VII, federal law already generally forbids discrimination based on sex stereotyping (e.g., a woman perceived as too "mannish") under the Supreme Court's 1989 decision in Price Waterhouse v. Hopkins. The problem is that courts are afraid to let gays claim such discrimination because they suspect it's a way for gays to sneak sexual orientation protection into the law. Consider this passage from the opinion:

[I]ndividual employees who face adverse employment actions as a result of their employer's animus toward their exhibition of their behavior considered to be stereotypically inappropriate for their gender may have a claim under Title VII. When utilized by an avowedly homosexual plaintiff, however, gender stereotyping claims can easily present problems for an adjudicator. This is for the simple reason that "[s]tereotypical notions about how men and women should behave will often necessarily blur into ideas about heterosexuality and homosexuality." [citation omitted]. Like other courts, we have therefore recognized that a gender stereotyping claim should not be used to "bootstrap protection for sexual orientation into Title VII." 398 F.3d at 218.

If a heterosexual plaintiff claims gender stereotyping, she has a claim. But if an "avowed homosexual" plaintiff claims gender stereotyping, courts get very suspicious that it's an attempt to sneak sexual orientation protection into Title VII under the guise of interpretation.

Make of that concern what you will, but the sexual-orientation-only version of ENDA might have helped Dawson in two ways. First, she could have made a straightforward sexual orientation claim (though that claim might have run into other problems particular to her case). Second, she might have a made a successful gender-stereotyping claim because, since federal law will now protect gay people from discrimination, courts will not have to worry about gender stereotyping claims "blurring" into sexual orientation claims. They will not be so anxious about letting gay plaintiffs sneak sexual orientation protection into federal law: it will already be there. I want to be cautious on this second point. ENDA is not a formal amendment of Title VII, and thus existing precedent about the exclusion of gays from sex stereotyping claims could remain in full force under that law. But that is true regardless of whether a "weak" or "strong" ENDA passes.

In other words, Dawson lost on her federal claim precisely because federal law does not prohibit discrimination based on sexual orientation. Of course, a trans-inclusive ENDA that prohibits both sexual orientation and gender-identity discrimination would protect her as well. But so would the new version of ENDA that prohibits only sexual orientation discrimination since courts might no longer feel that they have to limit sex-stereotyping claims to heterosexuals.

But it gets worse for Lamda's position. Dawson didn't even present competent evidence that she was fired for gender nonconformity.

[I]n contrast to the plaintiff in Price Waterhouse, who proffered evidence that her promotion to partnership depended upon her changing her behavior to better conform to gender stereotypes, . . . Dawson has produced no substantial evidence from which we may plausibly infer that her alleged failure to conform her appearance to feminine stereotypes resulted in her suffering any adverse employment action at the hands of Bumble & Bumble. Thus, her Title VII claim based upon a gender stereotyping theory must fail. Id. at 222-23.

Thus, on the record, Dawson was not even fired for being a gender bender. How then could it be, as Lambda asserts, that she lost because her employer accepted gays but not gender-benders? There is nothing in the court's opinion that comes even close to saying that.

(2) State claim in Dawson

Dawson also claimed that she had been discriminated against based on her sexual orientation in violation of New York state law (which explicitly protects gays, but not transgenders). She lost on this claim because the only evidence of any discrimination based on her sexual orientation came from statements made by two co-workers who apparently had no role in the decision to fire her. Thus, she presented no evidence that she had actually been fired for being a lesbian. Id. at 224-25.

She did not lose this state-law claim, as Lambda suggests, because New York failed to include "gender identity" in its law and her employer successfully argued that it fired her based on her gender non-conformity and not her sexual orientation. Adding gender identity to New York law would not have saved this employee in a case where she produced no sufficient summary judgment evidence that she had been fired either for gender bending or for sexual orientation.

(3) Will ENDA without "gender identity" impliedly overrule Price Waterhouse?

Lambda also claims in its letter to Frank that if gender identity is deliberately stripped from ENDA, "increasingly conservative" courts might interpret this as signalling Congress' desire to eliminate gender-stereotyping claims of the type recognized in Price Waterhouse, thus exposing effeminate gay men and masculine lesbians to discrimination for gender nonconformity rather than sexual orientation. I suppose anything is possible, but this scenario builds wild speculation upon dubious hypothesis.

First, nothing determinate about Congress's "intent" can be inferred from such drafting changes. Silence about "gender identity" might simply indicate an intent to leave out trangendered people (and most likely, the narrower class of transsexuals who are surgically altered or who live life fully as a member of the opposite sex) or it might indicate Congress thinks there's already sufficient protection for gender nonconformity in existing interpretation of Title VII (under Price Waterhouse) or it might mean there weren't enough votes for a more comprehensive bill or it might mean nothing at all.

Second, the least likely judicial interpretation of congressional silence on gender identity is that Congress meant to overrule two decades of federal court precedent based on a standing Supreme Court decision. The reasoning of Price Waterhouse on sex stereotyping as a form of prohibited "sex discrimination" holds regardless of what ENDA includes. There will be no legislative history to suggest that Congress meant to overrule Price Waterhouse by excluding gender identity from the bill. Effeminate gay men and masculine lesbians would have potential claims under the "weak" ENDA for sexual orientation discrimination and would also likely have stronger claims for sex stereotyping under Title VII.

Third, for reasons discussed above, even if courts strained to infer that Congress meant to overhaul sex-discrimination law silently by passing a "weak" ENDA, even that would not hurt gay plaintiffs making sexual-orientation discrimination claims under ENDA. There are no reported cases yet in which an employer successfully made the contorted we-like-gays-but-not-gender-nonconformists claim Lambda hypothesizes. Nor, as a factual matter, should we expect such cases.

One thing is clear: federal law does not currently protect transsexuals (as opposed to manly women or effeminate men) from discrimination in private employment based on their transsexuality. ENDA is probably the best chance to protect transsexuals from private employment discrimination nationwide in the near future. But if Frank is right that the bill can't pass with gender identity included, it's hard to see what a trans-inclusive ENDA would accomplish for the transgendered until members of Congress are "educated" about the matter. Nobody knows how long that might take. Another uncertainty is whether, even if ENDA passes the Senate, President Bush would sign it. A trans-inclusive ENDA would make both Senate passage and presidential signature less likely than they already are.

If Lambda and other groups want to insist that ENDA should be trans-inclusive no matter what the cost to gay people in 31 states who are now without statewide employment protection and aren't likely to get it anytime soon, that's fine. They can certainly do so as a matter of principle, or morality, or fairness, or political coalition-building. But their legal argument about the inadequacy of the "weak" ENDA for gay Americans is makeweight. They should stop trying to argue that laws protecting gay people from discrimination don't really protect gay people from discrimination.

Some of Lambda's latest response goes to questions of principle and fairness to transgendered employees not covered by a limited ENDA, to defending itself against charges that its opposition to a limited ENDA is elitist and unresponsive to the needs of millions of gay Americans in 31 states with no statewide employment protection, and to whether the ultimate goal of protecting both gays and transgenders is better served by passing a limited bill immediately or waiting until a more expansive bill can be passed in a future Congress. I don't have anything to say about those issues here. Instead, I want to address Lambda's argument that a limited ENDA won't offer adequate legal protection to many gay people.

Given its institutional role and mission, Lambda's strong desire for an expansive ENDA including both sexual orientation and gender identity is perfectly understandable. If I were a plaintiff's lawyer or headed an organization of civil-rights legal advocates, I would want as broad a set of civil-rights laws as I could get so that I would have instances of discrimination covered in every possible way, whether based on sexual orientation, gender identity, some combination or overlap of these, or something else. I would especially want the broadest possible coverage in an era when courts do indeed seem increasingly to read the liability and remedial provisions of civil-rights statutes quite narrowly. If the choice were, then, between an ENDA that included both gender identity and sexual orientation and an ENDA that included only sexual orientation, that would be an easy call. But if Barney Frank is right that the votes aren't there right now for a trans-inclusive ENDA, and I certainly don't have the political acumen or inside knowledge of Congress to say that he's wrong, the real choice is between passing out of the House a "gay-only" ENDA or no ENDA.

Given that choice, I think a good litigator or civil-rights advocate would want to maintain the political momentum created by House passage of a gay-only ENDA unless he thought it would do more damage than good or would accomplish so little good that other considerations (of fairness to trans people or justice or something else) would override.

Lambda's Legal Concerns

Lambda's legal worry is that a limited ENDA might accomplish very little good and might even backfire, eliminating existing protections in federal law. It comes down to a concern that effeminate gay men and masculine lesbians might effectively have no legal protection from discrimination for their gender nonconformity under federal law if a limited ENDA passes. Right now, gender nonconforming gays have better arguments for legal protection than do gender conforming gays under federal law. After a limited ENDA passes, worries Lambda, an employer might successfully argue that it discriminated against the plaintiff based on her gender nonconformity (her being a masculine woman) and not her sexual orientation (her being a lesbian).

I have previously written on this blog that, as a practical and factual matter, it would be rare to see a case in which comments and actions based on a person's gender nonconformity ("hey man, you walk like a girl") were not accompanied by comments directed explicitly at a person's actual or perceived sexual orientation ("hey faggot"). I base this observation on the many reported Title VII cases in which employees were subjected both to anti-gay abuse and to sex stereotypes. The two kinds of discrimination tend to go together, which is why federal courts keen on excluding sexual orientation protection from Title VII have thrown out what would otherwise be perfectly good sex stereotyping cases that involve gay plaintiffs or any whiff of anti-gay discrimination: they think gay plaintiffs are trying to make sexual-orientation claims disguised as sex-stereotyping claims.

If, as I predict, the large run of cases in which an employee suffers sex-stereotyping or gender-nonconformity discrimination are accompanied by direct evidence of anti-gay discrimination then the employee should have a cognizable claim under even a limited ENDA prohibiting only sexual-orientation discrimination. Federal courts that have previously withheld Title VII protections from gay plaintiffs claiming sex stereotyping should also have some of their policy concerns alleviated once gay people are actually protected in federal law under a limited ENDA.

Lambda makes no response to these arguments about the factual patterns in anti-gay discrimination cases or to the possibility that protecting gays from discrimination in federal law might reduce the pressure courts feel to disaggregate sexual orientation from gender nonconformity under Title VII.

In this connection, Lambda has all but abandoned its reliance on Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005), which it originally claimed in an open letter to Rep. Frank was an instance where an employer successfully argued that it fired a lesbian for being too masculine under a state law that prohibited only sexual-orientation discrimination. Neither the facts in the case nor the court's discussion of the relevant law supported that view, as I discussed at length in my previous post. Lambda now calls that case a "sideshow." I agree.

Having found no reported decisions to support its fears, now Lambda says that we should be unsurprised since there are few reported cases dealing with sexual-orientation statutes. There aren't a lot of such cases, but we do have experience with state, local, and county laws stretching back some three decades. The fact that inventive employers with high-priced lawyers haven't successfully defeated even a single claim in a reported decision on grounds suggested by Lambda undercuts the reasonableness of Lambda's fear that a limited ENDA will be insufficient. The further fact that, as Lambda puts it, many cases do not make it to a stage where there's a reported decision (either because of settlement, or because the claim is weak, or because a plaintiff's lawyer won't take the case, or is inexperienced) neither supports nor undermines the view that a gay-only law doesn't adequately protect gays. The fact that many cases settle, for example, may simply be evidence that employers are not confident about the success of the contorted we-like-gays-but-not-gender-benders legal theory Lambda hypothesizes. In short, the absence of published evidence for Lambda's view is not evidence for Lambda's view.

But let's assume, contrary to what we should expect as a factual matter based on past decisions, that an employer manages to persuade a court that the real basis for its discrimination was the lesbian's gender nonconformity rather than her sexual orientation. Such a plaintiff, Lambda hypothesizes, might then be put in a double-bind. (1) On the one hand, she would not have protection for her gender nonconformity under a limited ENDA because it would omit protection for "gender identity," defined in an earlier version of ENDA (H.R. 2015) to mean "gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual." (2) On the other hand, Lambda fears that she might not have protection for her gender nonconformity under Title VII because federal courts might abandon the current interpretation of that law, under which "sex stereotyping" is considered a form of prohibited sex discrimination.

Protection for Gender Nonconformity in a Limited ENDA

First, is it true that there will be no protection for gender nonconforming homosexuals under a limited ENDA? Lambda undersells the potential of a limited ENDA for its macho lesbian. Gay people are often associated with certain gender-nonconforming traits. Recall that H.R. 3685 actually prohibits discrimination "because of [an] individual's actual or perceived sexual orientation." (emphasis added) Under this language, if the employer "perceives" the employee is a lesbian based on her gender nonconforming behavior or appearance, and discriminates against her for this reason, the employer has violated even the limited ENDA.

A possible problem with this view is that it doesn't seem to reach the presumably rare case where the employer successfully argues that the perceived lesbianism of the plaintiff had nothing to do with the discrimination; it was her mannishness that got her into trouble. Another potential problem is that, having introduced an expansive ENDA with "gender identity" included before adequately counting votes for the bill in the House, overly optimistic gay- and trans-rights activists have now handed opponents a weak but plausible argument that the elimination of "gender identity" from the bill means there should be no protection for even gender nonconformity associated with homosexual orientation under the limited ENDA. There will be a debate about all of this in litigation and I expect that Lambda, having argued now that a limited ENDA is inadequate, will argue after it passes that it does cover discrimination against homosexuals arising from their gender nonconformity. Whether and to what extent gender-nonconforming gay plaintiffs might be successful with these claims we can't know.

Protection for Gender Nonconformity in Title VII

More importantly for our purposes, how reasonable is the second fear, that there might be no protection for gender nonconformity under Title VII if a limited ENDA passes? Lambda worries that increasingly conservative courts "profoundly unsympathetic toward plaintiffs in employment discrimination cases generally" and hostile to gay-rights litigants in particular, might latch on to the elimination of "gender identity" from ENDA as evidence that Congress intended to eliminate protection from gender-nonconformity discrimination under Title VII. Lambda cites, as examples of courts' hostility to civil-rights plaintiffs, cases involving race and other forms of discrimination in which Lambda believes the courts took unduly restricted views of civil-rights laws.

Lambda exaggerates the aggressiveness of conservative federal courts. These same courts have, for example, now interpreted Title VII to prohibit same-sex sexual harassment. Oncale v. Sundowners Offshore Services, Inc., 523 U.S. 75 (1998). Of course, if you really believe that conservative judges are incapable of reaching principled (as opposed to result-oriented) decisions, and will throw out every rule of statutory construction and precedent to reach a preferred policy result, then you must despair that the addition of any words to ENDA will save you from their evil grip.

To assess whether this fear of wild and aggressive conservative courts is very plausible in the specific context of a gender-nonconformity claim under Title VII, recall that the Supreme Court declared in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), that sex stereotyping is a form of sex discrimination. While there was disagreement on the Court in that case over issues like causation and burden-shifting, there was no disagreement on the basic principle that sex stereotyping is impermissible. That Court included current Justices Scalia and Kennedy. The Supreme Court has never withdrawn, overruled, or even limited its understanding, despite changes in the Court's personnel. Although Lambda ominously warns that the Supreme Court "could change its mind" and reverse Price Waterhouse, no justice on the Court since that case has questioned the basic principle it established about sex stereotyping.

The sex-stereotyping theory of Price Waterhouse has been followed by every circuit court to consider the issue, even the more conservative courts. Moreover, while the facts of Price Waterhouse involved a woman deemed too "macho" for a job, the same gender-nonconformity protection has been extended to effeminate men in cases like Nichols v. Azteca Restaurant Enterprises, Inc., 256 F.3d 864 (9th Cir.2001).

As its only example of right-wing judges undermining sex-stereotyping claims, Lambda says that Judge Richard Posner "disagreed" with Price Waterhouse in a concurring opinion in Hamm v. Weyauwega Milk Product, Inc., 332 F.3d 1058, 1067-68 (7th Cir. 2003) (Posner concurring). That's an oversimplification. Actually, Posner supported the idea that discrimination for gender nonconformity may be evidence of sex discrimination in a case where both men and women are eligible for a job. But he was critical of the artificial distinction between homosexual plaintiffs and heterosexual plaintiffs claiming gender nonconformity discrimination that has arisen in the federal courts since Price Waterhouse. I assume Lambda also bemoans this distinction.

ENDA Does Not Limit or Amend Title VII

Do we have any good reason to believe that even conservative judges will be bold enough to hold that Congress has silently or impliedly overruled Price Waterhouse by passing ENDA without "gender identity" protection? There are several reasons to believe this concern is very far-fetched.

Start with the pedestrian point that ENDA is not an amendment of Title VII, so there's no obvious reason ENDA should have a dramatic effect on it. Nothing in ENDA states that it is overruling part of Title VII. Nothing in the legislative history will say that Congress passed this expansion of civil rights law as a way to limit civil rights under Title VII.

In fact, the decisive response to Lambda's fear about the effect on Title VII is contained in ENDA's Section 15, entitled "Relationship to Other Laws":

This Act shall not invalidate or limit the rights, remedies, or procedures available to an individual claiming discrimination prohibited under any other Federal law or regulation or regulation of a state or political subdivision of a state.

Any argument that Congress silently overruled part of Title VII in ENDA would be an argument that it "limit[s] the right [to be free of sex stereotyping] . . . available to an individual claiming discrimination prohibited under [Title VII]." That argument would fail under Section 15. Lambda does not even mention this section of ENDA in its analysis.

Second, when Congress wants to overrule federal court rulings it is quite capable of doing so explicitly. It did so when it overruled restrictive federal court decisions in 1991 amendments to the Civil Rights Act of 1964. It did so again recently when the House voted to overrule the Court's recent Title VII statute of limitations decision. Congress does not have to resort to subterfuge to overrule the Court and it would be surprising to have a court find that it uncharacteristically did so by merely excluding a phrase from ENDA.

Third, consider how some basic principles of statutory construction would apply in a post-ENDA world. It would not be unusual for a court to claim that the failure to include something in Statute A (e.g., Title VII) should influence how we interpret Statute A (Title VII). It would be very unusual to suggest that (1) simple failure to include a phrase ("gender identity") (2) in the passage of Statute B (a limited ENDA) should be interpreted (3) to impliedly overrule two decades of consistent federal court interpretation (sex stereotyping) (4) under Statute A (Title VII). There is no precedent I have seen for that extremely dubious style of statutory interpretation. That is why Lambda, long a respected voice for its legal acumen and honesty, is on such thin ice.

It would also not be unusual for a court to consider the words used in one statute in its interpretation of words used in another statute involving the same subject matter in an effort to harmonize the public policy objectives embodied in the laws. But that, too, would not be a principle at issue here. There is no disharmony in having a Title VII that protects gender nonconformity and an ENDA that protects sexual orientation. They are complementary.

Besides, there are many other and more plausible understandings about why Congress took "gender identity" out of ENDA. The correct one would be simply that there weren't enough votes to include it and hence that Congress wasn't doing anything substantive by striking it from the bill. Another interpretation would be that Congress thought most of what would be protected by the definition of "gender identity" was already protected under Title VII (excepting transsexuality). Indeed, gender nonconformity is in some ways more generously protected under existing Title VII case law than it would be under an expanded ENDA, given the broad exemptions for "religious organizations" and other limitations on the scope of liability contained in both versions of ENDA.

A Hypothetical Gay Plaintiff's Options Under a Limited ENDA

Finally, Lambda posits that a plaintiff might be caught between the gender- nonconformity "rock" of a limited ENDA and the sexual-orientation "hard place" of Title VII. "Thus," Lambda concludes, "a non-inclusive version of ENDA risks having a court decide that an employee cannot pursue a claim for sexual orientation discrimination because it concludes that what was going on was discrimination based on gender nonconformity, but then not allow a Title VII claim by reading the Price Waterhouse case overly narrowly."

Contrary to Lambda's assertion, it is the defendant employer that's placed between the rock of the gay protections of a limited ENDA and the hard place of the gender-nonconformity protection of Title VII.

To see why, imagine you have a butch lesbian fired by a school in which she works. She argues that the school fired her either for her sexual orientation or her gender nonconformity or for some combination of these.

On the one hand, if the school fired her for being a lesbian she has a claim under the newly passed, gay-only ENDA. Her lawyers would point to the times she was called a "dyke" and was told to find a man to make her a real woman. Her lawyers would observe that the fact that the school employs other lesbians is no more a defense to the claim than the fact that an employer hires some black people is a defense to a claim of race discrimination. On the other hand, if the employer tries to weasel its way out of ENDA liability by saying that it fired her for being too butch, her lawyers would say that it was then liable for sex stereotyping under Title VII.

Therefore, if the employer tries to get out of Title VII liability by saying she's a lesbian claiming sexual-orientation discrimination, it has walked right into ENDA. If it tries to get out of ENDA liability by saying she's a gender bender claiming sex stereotyping, it has walked right into Title VII. Depending on the facts, if the employer's motives include hostility both to gender nonconformity and to sexual orientation the plaintiff can still say the discrimination was "because of" actual or perceived sexual orientation. Any way you slice it, the employer is stuck.

And if the employer, citing Lambda's letter to Barney Frank and its recent elaboration of the same concerns, tries to make the argument that Congress silently repealed two decades' worth of Title VII precedent on sex stereotyping by enacting an entirely separate federal law, her lawyers would make the excellent argument that this was not even a plausible interpretation of ENDA's effect.

Since gender nonconformity already enjoys a large measure of protection under settled Title VII precedents, what's really at stake in the debate over whether to include "gender identity" in ENDA is protecting transsexuals from discrimination based on their transsexuality. This is a very small group of people and, short of being protected from discrimination in a larger bill like ENDA, they are not likely to get federal legislation protecting their employment interests unless a concerted effort is made on their behalf by political allies. That work has evidently not yet been done in sufficient measure by the groups who now oppose a limited ENDA out of solidarity with transsexuals.

The upshot is that it seems Lambda and many other gay organizations really oppose ENDA because they think it is simply wrong to exclude protection for transsexuality from a gay civil-rights law, even if that means waiting a significant additional time to pass any protection at all. I don't share the view that protection for gays must await protection for transsexuals, but I understand and respect it. The appeal to gays' legal self-interest, by contrast, is a diversion from the real issue.