Ulane v. Eastern Airlines, Inc.

Citation742 F.2d 1081
Decision Date29 August 1984
Docket NumberNo. 84-1431,84-1431
Parties35 Fair Empl.Prac.Cas. 1348, 35 Empl. Prac. Dec. P 34,675 Karen Frances ULANE, Plaintiff-Appellee, v. EASTERN AIRLINES, INC., a Delaware corporation, Defendant-Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

Dean A. Dickie, Sachnoff, Weaver & Rubenstein, Ltd., Chicago, Ill., for plaintiff-appellee.

David M. Brown, Gambrell & Russell, Atlanta, Ga., for defendant-appellant.

Before CUMMINGS, Chief Judge, WOOD, Circuit Judge, and DUMBAULD, Senior District Judge. *

HARLINGTON WOOD, Jr., Circuit Judge.

Plaintiff, as Kenneth Ulane, was hired in 1968 as a pilot for defendant, Eastern Air Lines, Inc., but was fired as Karen Frances Ulane in 1981. Ulane filed a timely charge of sex discrimination with the Equal Employment Opportunity Commission, which subsequently issued a right to sue letter. This suit followed. Counts I and II allege that Ulane's discharge violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. Secs. 2000e--2000e-17 (1982): Count I alleges that Ulane was discriminated against as a female; Count II alleges that Ulane was discriminated against as a transsexual. The judge ruled in favor of Ulane on both counts after a bench trial. 1 581 F.Supp. 821. The court awarded her 2 reinstatement as a flying officer with full seniority and back pay, and attorneys' fees. This certified appeal followed pursuant to Federal Rule of Civil Procedure 54(b).

FACTUAL BACKGROUND

Counsel for Ulane opens their brief by explaining: "This is a Title VII case brought by a pilot who was fired by Eastern Airlines for no reason other than the fact that she ceased being a male and became a female." That explanation may give some cause to pause, but this briefly is the story.

Ulane became a licensed pilot in 1964, serving in the United States Army from that time until 1968 with a record of combat missions in Vietnam for which Ulane received the Air Medal with eight clusters. Upon discharge in 1968, Ulane began flying for Eastern. With Eastern, Ulane progressed from Second to First Officer, and also served as a flight instructor, logging over 8,000 flight hours.

Ulane was diagnosed a transsexual 3 in 1979. She explains that although embodied as a male, from early childhood she felt like a female. Ulane first sought psychiatric and medical assistance in 1968 while in the military. Later, Ulane began taking female hormones as part of her treatment, and eventually developed breasts from the hormones. In 1980, she underwent "sex reassignment surgery." 4 After the surgery, Illinois issued a revised birth certificate indicating Ulane was female, and the FAA certified her for flight status as a female. Ulane's own physician explained, however, that the operation would not create a biological female in the sense that Ulane would "have a uterus and ovaries and be able to bear babies." Ulane's chromosomes, 5 all concede, are unaffected by the hormones and surgery. Ulane, however, claims that the lack of change in her chromosomes is irrelevant. 6 Eastern was not aware of Ulane's transsexuality, her hormone treatments, or her psychiatric counseling until she attempted to return to work after her reassignment surgery. Eastern knew Ulane only as one of its male pilots.

LEGAL ISSUES
A. Title VII and Ulane as a Transsexual.

The district judge first found under Count II that Eastern discharged Ulane because she was a transsexual, and that Title VII prohibits discrimination on this basis. 7 While we do not condone discrimination in any form, 8 we are constrained to hold that Title VII does not protect transsexuals, and that the district court's order on this count therefore must be reversed for lack of jurisdiction.

Section 2000e-2(a)(1) provides in part that:

(a) It shall be an unlawful employment practice for an employer--

(1) to ... discharge any individual ... because of such individual's ... sex ....

Other courts have held that the term "sex" as used in the statute is not synonymous with "sexual preference." See, e.g., Sommers v. Budget Marketing, Inc., 667 F.2d 748, 750 (8th Cir.1982) (per curiam); De Santis v. Pacific Telephone & Telegraph Co., 608 F.2d 327, 329-30 (9th Cir.1979); Smith v. Liberty Mutual Insurance Co., 569 F.2d 325, 326-27 (5th Cir.1978); Holloway v. Arthur Andersen & Co., 566 F.2d 659, 662 (9th Cir.1977); Voyles v. Ralph K. Davies Medical Center, 403 F.Supp. 456, 457 (N.D.Cal.1975), aff'd mem., 570 F.2d 354 (9th Cir.1978). The district court recognized this, and agreed that homosexuals and transvestites do not enjoy Title VII protection, but distinguished transsexuals as persons who, unlike homosexuals and transvestites, have sexual identity problems; the judge agreed that the term "sex" does not comprehend "sexual preference," but held that it does comprehend "sexual identity." The district judge based this holding on his finding that "sex is not a cut-and-dried matter of chromosomes," but is in part a psychological question--a question of self-perception; and in part a social matter--a question of how society perceives the individual. 9 The district judge further supported his broad view of Title VII's coverage by recognizing Title VII as a remedial statute to be liberally construed. He concluded that it is reasonable to hold that the statutory word "sex" literally and scientifically applies to transsexuals even if it does not apply to homosexuals or transvestites. 10 We must disagree.

Even though Title VII is a remedial statute, and even though some may define "sex" in such a way as to mean an individual's "sexual identity," our responsibility is to interpret this congressional legislation and determine what Congress intended when it decided to outlaw discrimination based on sex. See United States Department of Labor v. Forsyth Energy, Inc., 666 F.2d 1104, 1107 (7th Cir.1981). The district judge did recognize that Congress manifested an intention to exclude homosexuals from Title VII coverage. Nonetheless, the judge defended his conclusion that Ulane's broad interpretation of the term "sex" was reasonable and could therefore be applied to the statute by noting that transsexuals are different than homosexuals, and that Congress never considered whether it should include or exclude transsexuals. While we recognize distinctions among homosexuals, transvestites, and transsexuals, we believe that the same reasons for holding that the first two groups do not enjoy Title VII coverage apply with equal force to deny protection for transsexuals.

It is a maxim of statutory construction that, unless otherwise defined, words should be given their ordinary, common meaning. Perrin v. United States, 444 U.S. 37, 42, 100 S.Ct. 311, 314, 62 L.Ed.2d 199 (1979). The phrase in Title VII prohibiting discrimination based on sex, in its plain meaning, implies that it is unlawful to discriminate against women because they are women and against men because they are men. The words of Title VII do not outlaw discrimination against a person who has a sexual identity disorder, i.e., a person born with a male body who believes himself to be female, or a person born with a female body who believes herself to be male; a prohibition against discrimination based on an individual's sex is not synonymous with a prohibition against discrimination based on an individual's sexual identity disorder or discontent with the sex into which they were born. The dearth of legislative history on section 2000e-2(a)(1) strongly reinforces the view that that section means nothing more than its plain language implies.

When Congress enacted the Civil Rights Act of 1964 it was primarily concerned with race discrimination. "Sex as a basis of discrimination was added as a floor amendment one day before the House approved Title VII, without prior hearing or debate." Holloway v. Arthur Andersen & Co., 566 F.2d 659, 662 (9th Cir.1977) (citations omitted); Developments in the Law--Employment Discrimination and Title VII of the Civil Rights Act of 1964, 84 Harv.L.Rev. 1109, 1167 (1971). This sex amendment was the gambit of a congressman seeking to scuttle adoption of the Civil Rights Act. The ploy failed and sex discrimination was abruptly added to the statute's prohibition against race discrimination. See Bradford v. Peoples Natural Gas Co., 60 F.R.D. 432, 434-35 & n. 1 (W.D.Pa.1973).

The total lack of legislative history supporting the sex amendment coupled with the circumstances of the amendment's adoption clearly indicates that Congress never considered nor intended that this 1964 legislation apply to anything other than the traditional concept of sex. Had Congress intended more, surely the legislative history would have at least mentioned its intended broad coverage of homosexuals, transvestites, or transsexuals, and would no doubt have sparked an interesting debate. There is not the slightest suggestion in the legislative record to support an all-encompassing interpretation.

Members of Congress have, moreover, on a number of occasions, attempted to amend Title VII to prohibit discrimination based upon "affectational or sexual orientation." 11 Each of these attempts has failed. While the proposed amendments were directed toward homosexuals, see, e.g., Civil Rights Act Amendments of 1981: Hearings on H.R. 1454 Before the Subcomm. on Employment Opportunities of the House Comm. on Education and Labor, 97th Cong., 2d Sess. 1-2 (1982) (statements of Rep. Hawkins, chairman of subcommittee, and Rep. Weiss, N.Y., author of bill); Civil Rights Amendments Act of 1979: Hearings on H.R. 2074 Before the Subcomm. on Employment Opportunities of the House Comm. on Education and Labor, 96th Cong., 2d Sess. 6 (1980) (statements of Rep. Hawkins, chairman of subcommittee, and Rep. Weiss, N.Y., coauthor of bill), their rejection strongly indicates that the phrase in the Civil Rights Act prohibiting discrimination on the basis of sex should be given a narrow, traditional...

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