Sommers v. Iowa Civil Rights Com'n

• Decision Date: 18 May 1983
• Docket Number: No. 68164,68164
• Citation: 337 N.W.2d 470
• Parties: 47 Fair Empl.Prac.Cas. (BNA) 1217, 33 Empl. Prac. Dec. P 34,260, 1 A.D. Cases 442 Audra SOMMERS, Appellant, v. IOWA CIVIL RIGHTS COMMISSION, Appellee.
• Court: Iowa Supreme Court

Page 470

337 N.W.2d 470

47 Fair Empl.Prac.Cas. (BNA) 1217,

33 Empl. Prac. Dec. P 34,260, 1 A.D. Cases 442

Audra SOMMERS, Appellant, v.IOWA CIVIL RIGHTS COMMISSION, Appellee.

No. 68164.

Supreme Court of Iowa.

May 18, 1983.

As Amended Sept. 2, 1983.

Linda S. Pettit and Anthony J. Touschner, Des Moines, for appellant.

Thomas J. Miller, Atty. Gen., and Scott H. Nichols, Asst. Atty. Gen., for appellee.

Considered by HARRIS, P.J., and McCORMICK, McGIVERIN, LARSON, and SCHULTZ, JJ.

SCHULTZ, Justice.

In this appeal we are asked to determine whether Iowa Code section 601A.6(1)(a) proscribes employment discrimination based on transsexuality.Petitioner, Audra Sommers, filed two complaints with the Iowa Civil Rights Commission(commission) alleging that she had been discharged because of her transsexual condition.The commission dismissed both complaints for lack of jurisdiction and Sommers appeals from these dismissals.We find no error.Accordingly, we affirm.

Sommers, who is referred to as "she" in accordance with her request, claims to be an individual who is "anatomically male but psychologically and emotionally female" and who has been pursuing a prescribed sexual reassignment treatment.On April 22, 1980, she was hired by Budget Marketing, Inc. to do clerical work.She dressed as a female during her employment and worked for three days without complaint about her job performance.On April 24she was recognized by an old acquaintance who also worked at Budget Marketing.She was questioned about her sexual status and on August 25she was told she could not use the restrooms and she was discharged.

Sommers filed a complaint with the Iowa Civil Rights Commission alleging sex discrimination in violation of the Iowa Civil Rights Act,Iowa Code ch. 601A(1981).The commission determined that her complaint was beyond the scope of its jurisdiction and dismissed it.Sommers subsequently filed another complaint alleging she was discriminated against on the basis of a disability, also in violation of chapter 601A.The commission informed her that her file had been closed due to lack of jurisdiction.On judicial review the Polk County District Court, Richard Strickler, J., affirmed the commission's decision.This appeal followed.

The Iowa Civil Rights Commission is an administrative agency governed by the provisions of the Iowa Administrative Procedure Act.Iowa Code § 17A.2(1981).The act provides judicial review of final agency action.Iowa Code § 17A.19(1);see alsoIowa Code § 601A.17(1)(1981).The commission by its own rule provides "no jurisdiction shall mean that the alleged discriminatory act or practice is not one that is prohibited by the Iowa Civil Rights Act ...."240 I.A.C. § 1.1(6)(e).A ruling that the agency has no jurisdiction is a final action of the commission for purposes of judicial review.Iowa Code § 17A.2(1);240 I.A.C. § 1.1(6)(e). Section 17A.19 provides the exclusive means of judicial review of the agency's action by the district court.Northbrook Residents Association v. Iowa State Department of Health, etc., 298 N.W.2d 330, 331(Iowa1980).On appeal this court may review a final action of the district court.Iowa Code § 17A.20(1981).Section 17A.20 provides:

An aggrieved or adversely affected party to the judicial review proceeding may obtain a review of any final judgment of the district court under this chapter by appeal to the supreme court.The appeal shall be taken as in other civil cases, although the appeal may be taken regardless of the amount involved.

In other civil casesthe court's duty is to correct errors of law made by the district court and that is our duty here.Foods, Inc. v. Iowa Civil Rights Commission, 318 N.W.2d 162, 164-65(Iowa1982).To determine whether the district court correctly applied the law, we apply the standards of section 17A.19(8) to the commission's actions to determine whether our conclusions are the same as those of the district court.Foods, Inc., 318 N.W.2d at 165.

On this appeal we are not examining civil liberties protected by the Constitution, but civil rights which are enforceable claims rooted in the Iowa Civil Rights Act.Estabrook v. Iowa Civil Rights Commission, 283 N.W.2d 306, 309(Iowa1979).Iowa Code section 601A.6(1981) provides: "1.It shall be an unfair and discriminatory practice for any: a. Person to ... discharge any employee ... because of age, race, creed, color, sex, national origin, religion or disability of such ... employee ...."In this appeal we are particularly concerned with the construction of the terms "sex" and "disability" as they are used in section 601A.6(1)(a).The commission construed the statutory language to exclude an action for discrimination on the basis of transsexuality.

In reviewing the commission's interpretation of statutory provisions we may give deference to, but are not bound by, the commission's interpretation.American Home Products Corp. v. Iowa State Board of Tax Review, 302 N.W.2d 140, 142(Iowa1981).The ultimate interpretation of Iowa statutory law is the province of the supreme court.Id.

We have been asked previously to interpret provisions of the Iowa Civil Rights Act.See, e.g., Foods, Inc., 318 N.W.2d 162;Estabrook, 283 N.W.2d 306;Franklin Manufacturing Co. v. Iowa Civil Rights Commission, 270 N.W.2d 829(Iowa1978);Cedar Rapids Community School District v. Parr, 227 N.W.2d 486(Iowa1975);Iron Workers Local No. 67 v. Hart, 191 N.W.2d 758(Iowa1971).In Franklin Manufacturing Co., we listed a number of well-established rules of statutory construction:

(1) In considering legislative enactmentswe should avoid strained, impractical or absurd results.

(2) Ordinarily, the usual and ordinary meaning is to be given the language used but the manifest intent of the legislature will prevail over the literal import of the words used.

(3) Where language is clear and plain, there is no room for construction.

(4)We should look to the object to be accomplished and the evils and mischiefs sought to be remedied in reaching a reasonable or liberal construction which will best effect its purpose rather than one which will defeat it.

(5) All parts of the enactment should be considered together and undue importance should not be given to any single or isolated portion.

(6)We give weight to the administrative interpretation of statutes, particularly when they are of longstanding.

Franklin Manufacturing Co., 270 N.W.2d at 831-32(citations omitted).

The purpose of the Iowa Civil Rights Act is "to eliminate unfair and discriminatory practices in public accommodations, employment, apprenticeship programs, on-the-job programs and vocational schools and to permit the study of discrimination in housing."1965 Iowa Actsch. 121(1965).The Iowa Civil Rights Act should be construed liberally to effect its purpose.Iowa Code § 601A.18(1981);Franklin Manufacturing Co., 270 N.W.2d at 832.

We will be mindful of these rules and the purpose of the Iowa Civil Rights Act as we determine whether Sommers is provided a remedy as a matter of law by section 601A.6(1)(a).

We must begin with a general discussion of transsexualism.It is useful to distinguish between the terms "sex" and "gender"; sex "connotes the anatomical qualities that determine whether one is male or female, while gender relates to behavior, feelings, and thoughts and does not always correlate with one's physiological status."Doe v. Minnesota Department of Public Welfare and Hennepin County Welfare Board, 257 N.W.2d 816, 818(Minn.1977).In cases where sex and gender develop independently, the result is a person with a serious problem of gender disorientation.This problem often begins early in life and may be due to medical, in addition to psychological, disturbances.Id.

Transsexualism differs from homosexuality or transvestism.Homosexuals do not suffer from gender identity disturbances as do transsexuals and transvestites.Homosexuals accept their anatomical structure and the male or female role, except with regard to sexual preference.A transvestite represents a status between the homosexual and the transsexual and obtains satisfaction by dressing or masquerading in clothing of the opposite sex.Id.

It is generally agreed that transsexualism is irreversible and can only be treated with surgery to remove some of the transsexual feelings of psychological distress; psychotherapy is ineffective.Generally, the surgery involves sexual reassignment which involves removing the male sex organs and constructing female sex organs.It apparently has proven psychological, but not physical, benefits for its recipients.Id.;Pinneke v. Preisser, 623 F.2d 546, 548-49(8th Cir.1980).

Sommers was pursuing a prescribed sexual reassignment through hormone treatment, psychological counseling, and was planning to have sexual reassignment surgery at the time of her termination.

I.Sex.The district court, after noting that "sex" is not defined in chapter 601A, ruled that "sex" must be construed according to its common usage.It found that the common usage of the word sex denotes male or female, but not both.Moreover, it iterated that the legislature did not provide for transsexuals as a class to be protected by chapter 601A.Nor did it find any evidence of legislative intent to expand the traditional meaning of sex to include transsexuals.Accordingly, the commission was found to be not unreasonable, arbitrary, or capricious in denying jurisdiction.

Sommers contends that transsexualism has all the characteristics of the other impermissible classifications included in section 601A.6(1)(a)(age, race, creed, color, religion, sex, national origin, and disability).She also contends that because the legislature prohibited discrimination based on "sex," rather than on "male or female sex," it left open the possibility of prohibiting discrimination against persons with attributes of both sexes.We disagree.

First, the Iowa Civil...