APPENDIX IV: THE LEGAL RELATIONSHIP BETWEEN SEXUAL ORIENTATION AND GENDER IDENTITY

Although not many judicial decisions have considered the relationship between sexual orientation and gender identity, most adopt the analysis in Lie v. Sky Publishing Co., 15 Mass. L. Rep. 412 (Superior Ct. Mass., 2002). Plaintiff employee, a male-to-female transsexual, alleged unlawful discrimination by the defendant based upon sex, sexual orientation, and handicap. In the course of its decision upholding summary judgment for defendant as to sexual orientation, the court makes the following observations:

“ General Laws Chapter 151B, § 4(1), in relevant part, makes it illegal for an employer to discriminate against an individual in terms, conditions, or privileges of employment or to discharge an individual from employment because of the individual’s sexual orientation, unless based upon a bona fide occupational qualification. Under § 3(6), sexual orientation is defined as having an orientation for or, alternatively, being identified as having an orientation for heterosexuality, bisexuality, or homosexuality. Whether or not sexual orientation under Chapter 151B encompasses transsexualism is a matter of first impression for the Massachusetts courts, although the MCAD has considered the issue. See Millet (full commission holding finding that transsexualism is not a sexual orientation, noting in dicta, however, that it might be protected if the employer regarded it as such and discriminated on that basis).

“As previously discussed, transsexualism is best understood as an issue of gender identity unrelated to sexual orientation. A psychiatric diagnosis of gender identity disorder is independent of an individual having a heterosexual, bisexual, or homosexual orientation. DSM-IV at 534, 538; A.D.A.M., Health Illustrated Encyclopedia, National Library of Medicine, available at <http://www.nlm.nih.gov/medlineplus/ency/article/001527.htm> (last visited on Oct. 1, 2002). As a matter of law, a simple claim of discrimination due to one's status as a transsexual does not give rise to a claim of discrimination on the basis of actual sexual orientation. They are unrelated.

“The court nevertheless recognizes that those who transgress traditional gender roles and defy stereotypes associated with their biological sex are less likely to be perceived as heterosexual than the general population. See Millet at n. 3. The conflation of one's appearance with one's sexual orientation in this fashion may lead to discrimination actionable under the second prong of Chapter 151B’s definition of sexual orientation discrimination, that is, discrimination due to being identified as having an orientation for heterosexuality, bisexuality, or homosexuality, regardless of the person's actual orientation. See, e.g., Rosa at 214 (‘It is ... reasonable to infer ... that [the teller] refused to give [the plaintiff] the loan application because she thought he was gay, confusing sexual orientation with cross-dressing’).

“The plaintiff neither makes a claim regarding her sexual orientation nor presents sufficient facts in her complaint to support a claim that the defendant’s actions were motivated in any way by her actual or perceived orientation. Moreover, she does not aver that the defendant confused her transsexual status with a sexual orientation, homosexual or otherwise. Therefore, judgment for the defendant on Count III is warranted.”

Similar in outcome is, for instance, Enriquez v. West Jersey Health Systems, 777 A.2d 365, 342 N.J.Super. 501 (Super. Ct. App. Div., 2001). See also the declaratory ruling in 2000 from the Connecticut Commission on Human Rights and Opportunities <http://www.state.ct.us/chro/metapages/HearingOffice/HODecisions/declaratoryrulings/DRDoe.htm>, concluding (at n.16): “Neither transsexual nor transgendered people are protected by prohibitions against discrimination based on sexual orientation. Protection from discrimination based on sexual orientation is guaranteed by Connecticut’s Gay Rights Law, CONN. GEN. STAT. § 46a-81a et seq. Sexual orientation concerns whom an individual loves or desires; gender identity concerns which gender an individual feels s/he is.”

Such cases indicate that modern law sharply distinguishes sexual orientation from gender identity, and that legal protection for the former does not extend to the latter except in unusual circumstances.