Employment Discrimination, LGBTQ Equality, Equal Protection - In February 2002, Krystal Etsitty was fired from the Utah Transit Authority where she had worked as a bus driver for several months. The termination came shortly after she revealed to her employers that she is transsexual, and although her employers had received no complaints about her, they informed her that she was being fired because they could not determine which restroom she should use. Etsitty, who identifies and lives as a woman, has legally changed her name from Michael to Krystal and has changed her Utah driver’s license designation from male to female. UTA told her she would be eligible for rehire only after undergoing sex reassignment surgery.
Etsitty, represented by the law firm of Strindberg & Scholnick, argued in federal court that she was protected by Title VII of the 1964 Civil Rights Act, which prohibits employment discrimination based on sex, including nonconformity to sex stereotypes. In June 2005, the district court granted summary judgment to UTA, holding that transgender people are not protected by Title VII, and that even if Title VII did apply, UTA’s decision was not based on Etsitty’s lack of conformity to sex stereotypes. Etsitty then asked the Tenth Circuit Court of Appeals to reverse the district court’s decision. In October 2005, the ACLU of Utah, the ACLU Lesbian and Gay Rights Project, Lambda Legal Defense and Education Fund, and the National Center for Lesbian Rights filed an amicus brief with the Tenth Circuit on behalf of Etsitty.
On September 20, 2007, the Tenth Circuit issued an opinion in which it affirmed the district court’s decision in favor of UTA, concluding that “discrimination against a transsexual because she is a transsexual is not ‘discrimination because of sex,’” and that “transsexuals are not a protected class under Title VII.” We believe this decision is out of step with the current trend, which is for both state and federal courts to recognize that discrimination against transgender people is by its very nature rooted in sex discrimination. The Tenth Circuit decision calls attention to the need for federal legislation prohibiting discrimination based solely on the fact that an employee is transgender.