# Petition for Writ of Certiorari — Ulane v. Eastern Air Lines, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0191%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1985 - **Citation:** 471 U.S. 1017 ## Text 84-1328 v Office - Supreme Court, U.S. No. FILED FEB 14 1985 ALEXA Ss Supreme Court of the Uuited-Stee— In The NDER & STEVAS, October Term, 1984 KAREN FRANCES ULANE, Petitioner, vs. EASTERN AIR LINES, INC., Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE SEVENTH CIRCUIT COURT OF APPEALS Of Counsel: Fay CLAYTON BRIAN D. ROCHE DEAN A. DICKIE 30 South Wacker Drive Suite 2900 Chicago, Illinois 60606 (312) 207-1000 Attorney for Petitioner SACHNOFF WEAVER & RUBENSTEIN, LTD. 30 South Wacker Drive Suite 2900 Chicago, Illinois 60606 February 14, 1985 CHAS. P. YOUNG CHICAGO i QUESTIONS PRESENTED 1. Whether the Court of Appeals seriously abused its authority by reversing the District Court’s findings of fact that the Petitioner was a female and that she was dis- criminated against based on sex in violation of Title VII of the Civil Rights Act of 1964, without applying the standard of review required by Federal Rule of Civil Procedure 52(a) and this Court’s decision in Pullman-Standard v. Swint, 456 U.S. 273 (1982). 2. Whether transsexuals are protected under Title VII of the Civil Rights Act of 1964 against discrimination based on change of sex. il TABLE OF CONTENTS Questions Presented ...........- 00 eee cece cere eee Paha of ComeemlS ....ccccctcocsssesesese ee Table of Actharitias.. oo. ccccccecscucssen ence Opinions Below............--eececeeceeeeeeeeees Sremtadiatign .. ow cccccccseuvvesessesse Seatute fnvelwed ......ccccsceuveeeeseeeee Seatement of the Cees .....occccccsccesvessuneeee Reasons for Granting the Writ ................++.- I. Il. The Court of Appeals Seriously Abused its Au- thority by Reversing the Findings of Fact of the District Court Without Applying the Standard of Review Required by Fed. R. Civ. P. 52(a) and Decisions of this Court .........ccesccccceces A. The Court of Appeals Ignored the Standard of Review Required By this Court in Pullman-Standard.........0ssccceccecees B. The Court of Appeals Should Have Re- manded Count I to the District Court .... In Concluding that Transsexuals are not Pro- tected by Title VII, The Court of Appeals has Created an Exception to Title VII’s Prohibition Against Sex Discrimination Which Conflicts With the Broad Language and Purpose of the OY eet QComolesbom .... occ cccvcscceteuesesseuee eee il iv 10 ll 12 17 19 iii APPENDIX: Judgment and Opinion issued by the Court of Appeals on August 29, 1984................. Final Judgment Order Pursuant to Rule 54(b) issued by the District Court on February 8, 1984 Oral Findings of Fact and Conclusions of Law omy by the District Court on December 28, Memorandum Opinion issued by the District Court on February 8, 1984.................. Supplemental Findings issued by the District Court on March 6, 1984 .................. Order Denying Rehearing and Suggestion for Rehearing Jn Banc issued by the Court of > peals on November 16, 1984 *t?t vt *® &@t ee eet ere = + + @ PAGE iv Cases PAGE Awni Mid, Ine. v _Rjeli- Oranie Lines, 458 F.2d 712 (7th denied, 409 U.S. 877 (1972) .......-++- 18 Barnes v. Costle, 561 F.2d 983 (D.C. Cir. 1977)...... 21, 22 Bundy v. Jackson, 641 F.2d 934 (D.C, Cir. 1981) .... 22 DeAnda v. St. Joseph's Hospital, 671 F.2d 850 (Sth Cir. BOOM on cc nsvccvvssevenccvesessssccsssesseses 18 Diaz v. Pan American World Airways, Ine., 442 F.2d 385 (Sth Cir.), cert. denied, 404 US. 950 (1971) . Griggs v. Duke Power Co., 401 US. 424 (971) ...... 20 Holloway v. Arthur Andersen, 566 F.2d 659 (9th Cir. SOPED cncses POO PNT eer err TT Ty TTT. 18 leweod Laboratories, Inc. v. ives Laboratories, Inc., 456 U.S. 844 (1962) .. 0... cere eee eee ee eee eens 13 Jacobs v. Martin Sweets Co., 550 F.2d 364 (6th Cir.), cert. denied, 431 U.S. 917 (1977) ... eee eee 21 Jeffries v. Harris Cownty Community Action Aswe., 615 F.2d 1025 (Sth Cir. 1980)... ~~... 6. eee eee 22 McDonald v. Sante Fe Trail Transportation Co., 427 U.S ht) eo. 20 Morales v. Haines, 486 F.2d 880 (7th Cir. 1973) ees 18 In re Neis, 723 F.2d 584 (7th Cir. BED osinvsucecs 18 Phillips v. Martin-Marietta Corp., 400 US. 542 (1971). 21 Pullman-Standard, Div. of Puliman, Inc. v. Swint, 456 U.S. 273 (1982) ..... eee e eee eee rene renee ene passim pene Bene ee nas a on (1DTR) once cevsneccvvesesrsnnvccsssessseness Sprogis v. United Airlines, Inc., 444 F.2d 1194 (7th Cir.), cert. denied, 404 U.S. 991 (1971) .. 6.6.6. Tomkins v. Public Service Electric & Gas Co., 568 F.2d 1044 (3rd Cir. 1977) ......-. eee eee eee eee eens Wright v. Methodist Youth Services, Ie. 511 F. wee 907 (N.D. Tl. 1981) .....- 6 ee eee eee eee eee eee Se S&S & . ania Statutes a 28 U.S.C. § IQA) ooo occ ccc ccc ce ee > @ USC amd nae 3 S.C. § 2000e-2aNXl) occ cece cccceccece ees pass ll. Rev. Stat, ch. 111-1/2, § 73-17%(a)....... eee ae - Other Authorities eral Rule of Civil Procedure re mace oS tn & SD gory F ESSSSE SS ORES passim 4 52.0513) and 152.062) Rae eekban Developments in the Law, Employment Discrimination and Title VII of the Civil Rights Act of 1964, 84 H SU eee if wTTTTT Ty : a H.R. Rep. No. 238, 92nd cong., Ist Sess. 5 (1972) an reprinted in 1972 U.S. Code Cong. & Ad. News 2137 20, 21 In The Supreme Court of the United States October Term, 1984 Petitioner-Plaintiff respectfully requests the issuance of a writ of certiorari to the Seventh Circuit Court of Appeals to review the judgment entered August 29, 1984. OPINIONS BELOW The Seventh Circuit Court of Appeals issued its judgment and opinion on August 29, 1984 They are reproduced as Appendix A. The opinion reversed the judgment on Counts I and II in Petitioner’s favor entered by the District Court on February 8, 1984. The final judgment order entered pur- suant to Fed. R. Civ. P. 54(b) is reproduced as Appendix B. The District Court’s judgment was supported by an oral opinion issued on December 28, 1983, a Memorandum Opin- ion issued on February 8, 1984, and written Supplemental Findings issued on March 6, 1984. These are reproduced as Appendices C, D, and E, respectively. The Court of Appeals denied a Petition for Rehearing on November 16, 1984. That order is reproduced as Appendix F. 9 JURISDICTION The Court of Appeals’ judgment in Respondent's ayor on Counts I and II was entered on August 29, 1984, and its order denying the Petition for Rehearing was entered on November 16, 1984. The jurisdiction of this Court is invoked under the authority of 28 U.S.C. §1254(1). (a) It shall be an unlawful employment practice for an employer (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin;. .. STATEMENT OF THE CASE A. Summary This is a Tithe VII case brought by a pilot who was fired by Bastern Air Lines, Inc. (“Eastern”) because of her sex. After flying successfully and without incident for Eastern for 12 years, Karen Ulane took a medical leave of absence to have sex reassignment surgery which changed her sex from male to female. After an unusually rigorous series of physical, psychological and psychiatric examinations by the Federal Aviation Administration (“FAA”), Ms. Ulane received an FAA First Class Medical Certificate in February 1981. Ms. Ulane presented her FAA certificate to Sastern, offered to take any required examinations and retraining, and informed Bastern that she was ready to return to flight duty. On April 24, 1981, without ever examining her, Eastern fired her. SAI. 3 In June 1981, Ms. Ulane filed with the Equal Employment Opportunity Commission (“EEOC”) a charge of diserimina- tion base! on both sex and transsexuality. She received a right-to-sue letter dated June 17, 1981, aad on August 4, 1981, she filed her complaint in the federal district court. Jurisdiction was based on 28 U.S.C. §1331. Counts I and II charge sex-based discrimination under Title VII. Count I charges discrimination as a female, and Count II charges discrimination as a transsexual. Eastern moved for dismissal claiming that transsexuals were not protected by Title VII and that Ms. Ulane could not be discriminated against as a woman. The District Court denied the motion in an oral opinion on April 21, 1982 which held that Counts I and II stated claims of discrimination based on gender under Title VII. Cross-motions for sum- mary judgment were later denied in a written opinion dated April 26, 1983. Trial began on September 26, 1983 and was completed on December 27, 1983. On December 28, 1983, the District Court delivered its oral opinion finding that each of Eastern’s reasons for the discharge was pretextual and that they estab- lished disparate treatment between Petitioner and Eastern’s male pilots. While expressing its firm opinion that Ms. Ulane had prevailed on Count II (discrimination as 4 transsexual), the District Court also stated the following regarding Count I: In doing so, I do not mean to imply that if Count I ‘discrimination as a female) were the only count I would not enter judgment for plaintiff on that count. I say that because one never knows beyond a shadow of a doubt what the Appellate Courts might do, and in the event the finding on Count II should be reversed, I would want plaintiff to be in the position of arguing alternatively that the judgment should be affirmed on Count I because upon remand in such a situation, I would enter judgment for plaintiff on Count I on the 4 basis of the record that has already been made here (C-34).’ On February 8, 1984, the District Court entered judgment in Ms. Ulane’s favor on both Counts I and II (B-3). In its Supplemental Findings dated March 6, 1984, the District Court clarified its intent that, even though the ruling on Count I was stated in the alternative, the findings announced on December 28, 1983, applied with equal force to both Count I and Count II (E-2). The District Court also clarified its earlier rulings and unequivocally stated that, based on the evidence, Ms. Ulane is a transsexual and a female (E-2).? Hastern appealed the judgment in Ms. Ulane’s favor on Counts I and II. On August 29, 1984, the Seventh Circuit issued its opinion and judgment reversing the District Court. The Court of Appeals reversed the judgment on Count I because it concluded that the District Court made no findings to support its determination that Eastern had discriminated against Ms. Ulane as a female. It reversed the judgment on Count II based on its conclusion that Title VII does not protect transsexuals from discrimination based on sex. The Court of Appeals’ decision makes clear that there are no medical or safety issues in this case. The Court of Appeals let stand the District Court’s findings that Eastern’s safety and medical concerns were completely without basis and ‘The reference to a letter and number refer to an Appendix and page. *On December 28, 1983, in discussing the unusual factual issue of the plaintiff’s sex, the District Court noted: Prior to my participation in this case, I would have had no doubt that the question of sex was a very straight-forward matter of whether you are male or female. That there could be any doubt about that question had simply never occurred to me. I had never been exposed to the arguments or to the problem. After listening to the evidence in this case, it is clear to me that there is no settled definition in the medical community as to what we mean by sex {C-4]. 5 pretextual. On November 16, 1984, Ms. Ulane’s petition to the Court of Appeals for rehearing was denied. B. The Petitioner’s Professional Background Karen F. Ulane has been flying airplanes since 1959 and has been a certified pilot since 1964. She served in the United States Army from 1964 to 1968, where she was an honor graduate of the Army flight school, and flew many combat missions in Vietnam. Although the aircraft she was piloting was hit by enemy fire at least eight times, she handled all of those emergency situations without difficulty. Ms. Ulane was decorated with the Air Medal of Honor and eight clusters, the Vietnam Service Medal, and the Army Commendation Medal for exceptionally meritorious service. She was honorably discharged in 1968 and began flying for Eastern that same year. Ms. Ulane worked successfully for Eastern for 12 years and rose from the rank of Second Officer to First Officer. She was appointed by Eastern to serve as a flight instructor, a distinction Eastern acknowledged is an honor. Ms. Ulane was elected and re-elected by her fellow pilots to represent them in the pilots’ union. In the 16 years she flew for the Army and for Eastern, she logged over 8,000 actual in-flight hours. In all this time she never had any problem handling emergency situations, never had an accideat or incident, never failed any of the tests which Eastern requires regularly of its pilots, and was never dis- ciplined in any way. She was commended for her excep- tional performance, and fellow pilots at trial Geseribed her as a “very sharp individual, a very sharp pilot”. The District Court found she was not only a better-than-average pilot, she was “better than good” (C-14). C. Gender Dysphoria M “ Karen Ulane is a transsexual. Transsexualism, or gender dysphoria,” is a condition where one experiences discomfort or discontent about being the anatomic sex to which one was 6 born.* Until she was diagnosed conclusively as a transsexual in 1979, she lived as a male. Eastern was informed of the purpose of Ms. Ulane’s leave of absence in October 1979, about one month after it began. Eastern took no action at that time. Her surgery was performed in April 1980. Ms. Ulane’s transsexuality never interfered in any way with her ability to fly an airplane. Even Captain Causey, who played a major role in terminating Ms.Ulane, admitted at trial that through the date she took leave to prepare for her surgery, she was a “thoroughly competent and capable pilot.” The purpose of Ms. Ulane’s leave, which began on September 1, 1979, was to enable her to prepare for sex reassignment surgery. She was thoroughly evaluated by the members of the Gender Board of the University of Chicago. Before a candidate is approved for surgery by the Board, the candidate must be approved by the unanimous vote of all the Board’s members, which include a psychiatrist, a gynecolo- gist, a urologist, a plastic surgeon, an endocrinologist, a general surgeon, and the University’s legal counsel. The Gender Board unanimously approved Ms. Ulane for surgery. Ms. Ulane and her doctors testified that the results of the surgery were excellent. When the surgical result is good, even a gynecologist cannot tell the difference between the post-operative transsexual woman and a person who was born a woman. Although reproductive organs are not created by the operation and the post-surgical transsexual woman cannot bear children, the anatomical likeness is iden- tical. Based on its observations of Ms. Ulane in the court- room from September through December 1983, and based on her testimony on the witness stand where she testified over *Transsexuality is entirely different from homosexuality: “Homosexuals... are not persons who have sexual identity prob- lems. They are content with the sex into which they were born. ‘Transsexuals, on the other hand, are persons with a problem relating to their very sexual identity as a man or woman” (C-4). 7 two separate days, the District Court found that “ijt would take an extremely practiced eye, it seems to me, to detect any difference between the plaintiff and the biological woman” (C-13). The District Court also found that the psychiatric testimony confirmed her as a woman (C-13). By June 1980, she was prepared to return to her job as a pilot for Eastern. D. The FAA Certification Process After contacting Eastern about her desire to return to work, Ms. Ulane began her recertification procedure with the FAA. Ms. Ulane had to pass a current medical exam to have her FAA medical certificate renewed. The FAA’s investigation of Ms. Ulane was extremely thorough. In addition to the standard physical exam, the FAA required Ms. Ulane to be examined by an independent psychologist and an independent psychiatrist. Both found Ms. Ulane fully qualified to fly. In addition to the two outside consultants, five additional doctors from the FAA, all of whom are specialists in aviation medicine, participated in the decision to certify Ms. Ulane. On January 23, 1981, the FAA notified Ms. Ulane that she was qualified for a First Class Medical Certificate. The FAA has received applications from at least 21 transsexual pilots. It has found 19 of them, including Ms. Ulane, qualified to fly and has issued them medical certifi- cates. The remaining two applications have been denied. E. Eastern’s Discriminatory Treatment of Ms. Ulane While Ms. Ulane’s application was pending before the FAA, Eastern conducted the “investigation” which sup- posedly determined that Ms. Ulane was somehow unsafe to fly. The District Court’s findings concerning Eastern’s inves- tigation can be summarized with the following conclusions by the Court: Eastern went out of its way not to learn whatever could be learned in plaintiff’s favor on the question of safety (C-15}. Eastern from the outset here took the attitude that its mind was made up, and it did not want to be confused with the facts. It substituted for any kind of investiga- tion worthy of the name a prejudiced, close-minded predetermination of the question of whether plaintiff was Suitable to continue in the cockpi — it of one of the liners (C-16] Pp heir air Eastern never gave Ms. Ulane any of the examinations it routinely uses for insuring that its pilots are qualified to fi The District Court found that Eastern failed to follow v4 own procedures in Ms. Ulane’s case because: The defendant was not interested in investigating or in following its normal procedures because it was afraid of what the results would be. It pretty well knew that those results would not bolster its already-made decision to fire the plaintiff but, rather, would undermine the legitimacy of that decision [{C-27}.* After hearing at least 19 days of testimony, including 17 live witnesses, 4 videotaped witnesses, and 6 additional witness depositions, and after reviewing 76 plaintiff Exhibits and 45 defense Exhibits, the District Court found that each of East- ern’s nine reasons for termination, whether considered individually or collectively, was pretextual. The District Court found that the entire discharge process had been managed by Eastern’s legal department “in an obvious effort to avoid liability under the sex discrimination law” (C-14), . ‘At trial one of Eastern’s chief witnesses, Captain Causey, testi- fied that he has no doubt that Ms. Ulane could operate the plane properly and safely and he kn a. ows of no one at Eastern who 9 The District Court further found that Reason Five in the first discharge letter was a virtual admission of discrimina- tion based on sex (C-23). Reason Five states: To the extent the operation and the counseling you have undergone have been successful in changing your essen- tial nature from male to female, it has changed you from the person Eastern has hired into a different per- son. Eastern would not have hired you had it known you contemplated or might in the future contemplate such an action. F. Karen Ulane Is A Female In entering judgment for Ms. Ulane on Count I, the Dis- trict Court found that Ms. Ulane is a woman and was discriminated against based on her sex (E-2). It is uncon- troverted that Ms. Ulane’s legal status in her home state is female, for Illinois recognizes the new legal status after sex reassignment surgery has been performed. See Ill. Rev. Stat. ch. 111-14, § 73-17(d). After hearing extensive medical as well as lay testimony concerning Ms. Ulane’s gender, after examining volumes of medical materials, and after having observed her over several months in the courtroom as well as on the witness stand, the District Court found that Ms. Ulane is a female (E-2).° The District Court concluded that though there is no settled medical definition of “sex”; it “is not a eut-and-dried matter of chromosomes” (C-4). Defining an individual’s sex requires considerations of psychological identity, societal perception, self-perception and other factors (C-4-5). The Dis- trict Court found that Karen Ulane appears to be a biological woman, conducts herself as a woman (C-13), and her post- operative legal status is that of female (C-7). “The evidence 5 A substantial body of medical literature which was introduced into evidence supports this same result. 10 clearly predominates in favor of the conclusion that plaintiff is a female, not a male” (E-1-2). REASONS FOR GRANTING THE WRIT This Court should grant the petition for a writ of certi- orari for two reasons. First, the Court of Appeals seriously abused its authority in reversing findings of fact of the District Court in violation of the decisions of this Court and of Rule 52(a) of the Federal Rules of Civil Procedure. Without giving any reasons and without applying the “clearly erroneous” test, the Court of Appeals reversed the District Court’s findings on Count I that the Petitioner was a female and that she was discriminated against on that basis in violation of Title VII of the Civil Rights Act of 1964 (the “Act”), The Court of Appeals’ unexplained and improper usurpation of the fact-finding role of the District Court is a bold departure from the accepted and usual course of federal judicial proceedings, and is in direct conflict with decisions of this Court. Second, the Court of Appeals’ conclusion that transsexuals are not protected under Title VII from discrimination based on their sexual identity or change of sex is an unduly narrow and unsupportable interpretation of the statute’s broad prohibition against discrimination based on sex. Whether transsexuals as a group should be prchibited from invoking the protection of Title VII is an important question of federal law which has not been, but should be, settled by this Court. I. THE COURT OF APPEALS SERIOUSLY ABUSED ITS AUTHORITY BY REVERSING FINDINGS OF FACT OF THE DISTRICT COURT WITHOUT APPLYING THE STANDARD OF REVIEW REQUIRED BY FED. R. CIV. P. 52(a) AND DECI- SIONS OF THIS COURT The District Court entered judgment in favor of Ms. Ulane on Count I because it found that she was a woman and that — aN ae ane eee ll she was discriminated against on that basis. While the Court of Appeals recognized that these findings might entitle Ms. Ulane to protection under Title VII, it failed to reach that question because it refused to accept the findings of the District Court. In fact, the Court of Appeals preemptively reversed the District Court’s findings of fact (1) without so much as a nod to the governing standard of review and (2) without the careful review of the record necessary to reject a finding as clearly erroneous. The Court of Appeals’ reversal of the findings of fact on Count I is in direct conflict with this Court’s decision in Pullman-Standard, Div. of Pullman, Inc. v. Swint, 456 U.S. 273 (1982), and seriously undermines the fact-finding role of the District Court. The Court of Appeals’ flagrant procedural error works an exceptional injustice here because it thwarted one individ- ual’s struggle for fair treatment against a giant corporation whose every excuse for firing her was a pretext and a sham. The District Court found that Eastern, intentionally and in bad faith, worked a terrible injustice on Karen Ulane. East- ern fired her after she altered her physical characteristics to be consistent with her true sexual identity, that of being a woman. Once a woman, they subjected her to a different standard of treatment, far harsher than any male pilot received at Eastern. Not every injustice has a remedy under Title VII. The federal laws are such that persons can legally be dis- criminated against in employment for a wide variety of reasons ranging from the color of one’s hair to one’s sexual preference. These reasons, outside of Title VII's coverage, may work injustices on the individuals involved, but Con- gress—and the courts—have marked out only specific kinds of discrimination in employment which are undeniably covered by Title VII. It is beyond dispute, however, that discrimination against a person because she is a woman falls squarely within this bright-line category. After three months of trial and a painstaking assessment of all the evidence, the District Court made a finding that 12 Eastern discriminated against Karen Ulane because she is a woman. That finding is crystal clear, unambiguous, and plainly supported by the record. Yet the Court of Appeals rejected that finding in a manner squarely in conflict with the governing rule of law. This Court has commanded that in Title VII cases, a finding of discrimination against a person in a protected category—here discrimination against a person because she is a woman—can only be rejected if the finding, after careful examination of the record, is determined to be clearly erroneous. See Pullman-Standard, Div. of Pullman, Inc. v. Swint, 456 U.S. 273 (1982). The injustice done to Karen Ulane by Eastern by ignoring the law has been compounded by the Court of Appeals’ failure to engage in the required process of carefully analyz- ing the findings of the District Court and their foundation in the record—a record that is replete with support for the District Court’s factual findings that she was discriminated against because she is a woman. Not every injustice has a remedy under Title VII. But the injustice done to Karen Ulane because she is a woman must be remedied by this Court. Not to do so, based on the record in this case, would flaunt the procedural protections required by this Court in appellate review, and would be contrary to the allocation of judicial power among the federal courts. A. The Court Of Appeals Ignored The Standard Of Review Required By This Court In Pullman- Seadead The Court of Appeals makes precisely the same mistake committed by the Fifth Circuit in Pullman-Standard, Div. of Puliman, Inc. v. Swint, which was reversed by this Court in 1982. 456 U.S. 273. In Pullman-Standard the Fifth Circuit reversed findings of the district court and substituted its own findings because it concluded that the lower court was wrong in finding no discrimination. The Fifth Circuit made only passing reference to Rule 52(a), Fed. R. Civ. P. This Court granted certiorari to settle the issue whether courts of 13 appeals are bound by the clearly erroneous standard under Rule 52(a) in reviewing lower court determinations of “ulti- mate” facts such as motive or intent in Title VII cases. 456 U.S. at 276. See also 5A J. Moore & J. Lucas, Moore’s Federal Prati 4 52.05(3] (1982) (noting conflict prior to Pullman- landard as to whether “ultimate” facts were reviewable by independent examination of the court of appeals). Puliman-Standard ended the confusion. This Court ruled that the Fifth Circuit erred in reversing findings of “ulti- mate fact” without deference to those findings under the “clearly erroneous” test of Rule 52(a): Rule 52(a) broadly requires that findings of fact not be set aside unless clearly erroneous. /t does not make excep- tions or purport to exclude certain categories of factual find- ings from the obligation of a court of appeals to accept a district court’s findings unless clearly erroneous. It does not divide facts into categories; in particular, it does not divide findings of fact into those that deal with “ulti- mate” and those that deal with “subsidiary” facts. 456 U.S. at 287 (emphasis added); see also Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844, 857 (1982) (reversing the Second Circuit because it had improperly substituted its interpretation of the evidence for that of the trial court). Count I does not present a “mixed question of law and fact” but a simple question of “ultimate” fact: Was Karen Ulane discriminated against by Eastern because she is female? The Court of Appeals’ one-page discussion of Count I, disearding the District Court’s findings without even men- tioning Rule 52(a) or examining the record, suggests that the Court of Appeals believes that the District Court did not mean what it said. The District Court expressly found the facts that the Court of Appeals seems to think it omitted: “(Sjhe is a female,” and “she was discharged by Eastern because of her sex” (E-1-2). 14 After three months of trial, in an oral opinion that was later supplemented by further written findings, the District Court stated its findings that, based on a wealth of evidence, sex was more than just chromosomes (C-7). Indeed, under Illinois law, Karen Ulane is legally recognized as a female. See Ill. Rev. Stat. ch. 111-14, § 73-17(d). Under principles of federalism, that fact alone should receive considerable defer- ence. But the District Court did not end its inquiry with taking judicial notice of the statute and the fact that Karen Ulane is legally recognized by the State of Illinois as a female (C-7). It also found by the preponderance of the evidence that Karen Ulane is a female based on (1) her testimony and demeanor; (2) the credibility of many expert witnesses; (3) Eastern’s own perception of Ms. Ulane as a woman as reflected in the testimony of Eastern pilots who knew and worked closely with her; and (4) Eastern’s own admission in Reason Five of the first discharge letter that her operation had “changed her essential nature from male to female.” Having found from the evidence that Karen Ulane was a female, the District Court further found that she was dis- criminated against by Eastern as a female. The Court stated that all of the findings made with regard to Count II apply to the conclusion that the Ms. Ulane was discriminated against as a female: It was and is my intention that all of my findings and conclusions concerning sexual discrimination against the plaintiff by Eastern Airlines, Inc. apply with equal force whether plaintiff be regarded as a transsexual or a female [E-2). The Court of Appeals’ statement that “It is clear from the evidence that if Eastern discriminated against Ulane, it was not because she is female...” (A-12) is a flagrant usurpation of the District Court’s function to find the facts and is in direct conflict with the District Court’s findings. 15 Regardless whether this Court agrees with the Court of Appeals that discrimination against transsexuals is not eovered by Title VII, we are left with the District Court’s unequivocal conclusion that Karen Ulane was treated differ- ently as a woman. The Court of Appeals’ decision rides roughshod over these findings without even suggesting that they are clearly erroneous or unsupported by the record. The Court of Appeals merely “reverses” the District Court’s find- ings and substitutes its own finding that Karen Ulane was not discriminated against as a female.* The trial covered both Count I—discrimination against Ms. Ulane as a woman, and Count IIl—discrimination against Ms. Ulane as a transsexual. Contrary to the Court of Appeals’ statement that all of the findings centered around discrimination against transsexuals, there was ample evidence at trial—and findings by the District Court—on Count I as wel! as Count II. For example, the District Court found: I read [Reason Five] as a virtual admission of dis- crimination, and in my view that discrimination is based on sex within the meaning of the statute. Item five is also in my view inconsistent with Eastern’s position that plaintiff has undergone no sex change [C-23). The Court also expressly found that Eastern did not fire male pilots who concealed psychological conditions from the FAA, but fired Karen Ulane for this reason (C-29-30). *The Court of Appeals misapprehends the facts when it states that the District Court “originally found only that Eastern had discriminated against Ulane under Count Ii as a transsexual” (A-11). The Court of Appeals overlooks the District Court’s alternative findings, which were rendered immediately after trial: “I do not mean to imply that if Count I were the only count I would not enter judgment for plaintiff on that count... . [On remand) / would enter judgment for plaintiff on Cownt I on the basis of the record that has already been made here.” (C-34) (December 28, 1983) (emphasis added). 16 Summarizing numerous findings of disparate treatment between male and female pilots, the District Court said: I further find that the plaintiff was in almost every instance subjected to discriminatory and disparate treat- ment for conduct which was in almost every instance, if not every instance, far less serious than that of male alcoholics whose conduct was excused by Eastern If the Court of Appeals had examined the record and applied the clearly erroneous standard it would have con- eluded that the District Court’s findings of fact on Count I were firmly rooted in the evidence. The Court of Appeals was simply not correct when it stated that “even if we accept the district judge’s holding that Ulane is female, he made no factual findings necessary to support his conclusion that Eastern discriminated against her on that basis” (A-11). The Court of Appeals must have overlooked or ignored the District Court’s initial and supple- mental findings. The Court of Appeals’ disregard of these findings, and its neglect of the clear support for these find- ings in the record, is a violation of Pullman-Standard and Rule 52. The District Court found that Ms. Ulane made a prima facie case, and that Eastern failed to articulate any legiti- mate reason for discharge. Those findings cannot be set aside unless they are shown to be clearly erroneous. This standard of review is an exceptionally important safeguard of the rights of Title VII litigants because it entrusts the questions of fact to the tribunal best able to assess those issues: the only tribunal that weighs credibility of witnesses. When the Court of Appeals freely disregards the fact-finding role of the District Court, the Supreme Court must exercise its authority to restore the necessary allocation of power between the trial and appellate courts. A a ARMA Remanded Count I To The District Court The Court of Appeals reversed on Count I, citing insuf- ficient findings for the conclusion that Ms. Ulane was dis- eriminated against on the basis of sex.’ Based on its own contrary findings, the Court of Appeals ordered that judg- ment be entered in favor of the defendant. Under Pullman- Standard this procedure was improper. This Court has ruled: When an appellate court discerns that a district court has failed to make a finding because of an errone. us view of the law, the wsual rule is thal there should be a remand for further proceedings to permit the trial court to make the missing findings: {Flact-finding is the basic responsibility of district courts, rather than appellate courts, and... the court of appeals should not have resolved in the first instance this factual dispute which had not been considered by the district court.’ (citation omitted | Likewise, where findings are infirm because of an eironeous view of the law, a remand is the proper course unless the record permits only one resolution of the factual issue. 456 U.S. at 291-92 (emphasis added). See also 5A J. Moore & J. Lucas, Moore's Federal Practice, § 52.06[2) (1982) (noting that the proper procedure in the event of insufficient findings is to remand for appropriate findings). The Court of Appeals did not hold that under no set of facts could Ms. Ulane establish a Title VII violation. Indeed, the Court of Appeals acknowledged that Karen Ulane is not "Although the Court of Appeals characterized the issue whether Ms. Ulane was discriminated against based on her sex as a “conclu- sion,” it is clear that this is a factwal issue under Pullman-Standard, as discussed above. 18 deprived of Title VII protection simply because she is a transsexual as well as a woman. See A-11-12, affirming the dicta in Holloway v. Arthur Andersen, 566 F.2d 659, 664 (9th Cir. 1977) (“transsexuals claiming discrimination because of their sex, male or female, would clearly state a cause of action under Title VII”). However, after concluding that discrimination against Ms. Ulane as a female would be actionable, the Caurt of Appeals then reached the anomalous result, even though the District Court had specifically found she was discriminated against as a female, of saying she was not. The Court of Appeals apparently believes that the District Court had made insufiicient findings to support the ultimate finding that Ms. Ulane had suffered discrimination because she is female. (“Even if we accept the district judge’s holding that Ulane is female, he made no factual findings necessary to support his conclusion that Eastern discriminated against her on that basis.” (A-11)). As we have shown, this is wrong. But even if the findings were insufficient, unclear or totally absent, the appropriate course is remand, not reversal. See, eg., In re Nets, 723 F.2d 584, 588 (7th Cir. 1983) (where district court makes inadequate find- ings, remand for additional proceedings); Morales v. Haines, 486 F.2d 880, 882 (7th Cir. 1973) (where district court fails to find on a material issue, vacate and remand for appropriate findings); see also DeAnda v. St. Joseph’s Hospital, 671 F.2d 850, 855 (5th Cir. 1982) (“if factual findings are absent, the case must be remanded for such findings’’). Petitioner submits that, based on the extensive factual record and the detailed findings of fact made by the District Court (which were incorporated by reference rather than being recited verbatim with regard to Count I), and taking all the inferences and viewing all the evidence most favorable to the party prevailing at trial, as the court must do, Aunt Mid, Inc. v. Fjell-Oranje Lines, 458 F.2d 712, 718 (7th Cir.), cert. denied, 409 U.S. 877 (1972), the District Court’s ruling on Count I should have been affirmed. However, if the Court of Appeals had any doubt or confusion on the subject of what factual findings supported the finding of 19 discrimination against Ms. Ulane as a woman, or if the Court of Appeals concluded that those findings were somehow confusing or incomplete, remand was the only appropriate course of action. II. IN CONCLUDING THAT TRANSSEXUALS ARE NOT PROTECTED BY TITLE VII, THE COURT OF APPEALS HAS CREATED AN EXCEPTION TO TITLE VII’S PROHIBITION AGAINST SEX DIS- CRIMINATION WHICH CONFLICTS WITH THE BROAD LANGUAGE AND PURPOSE OF THE ACT In excluding transsexuals from the protection of TitleVII, the Court of Appeals has decided that a group of individuals may be discriminated against based on their sex without redress to the nation’s employment discrimination laws. Whether transsexuals shou!d continue to be outside the scope of Title VII’s protection is an important federal question which has not been, but should be, settled by this Court. The Court of Appeals’ conclusion that transsexuals should not be protected because Congress has not shown any specific intent to do so is inconsistent with the Act’s general lan- guage and broad purpose. Granting protection for Ms. Ulane and other transsexuals discriminated against based on their sex, provides relief to the very individuals Congress sought to protect: victims of discrimination that is based on one of the impermissibie factors—sex—and which is completely unrelated to the individual’s capabilities and past job performance. There is little doubt that the original goal of Congress in enacting Title VII was to protect blacks. Congress sought “to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifi- able group of white employees over other employees.” Griggs v. Duke Power Co., 401 U.S. 424, 429-430 (1971); see also Developments in the Law, Employment Discrimination and Title VII of the Civil Rights Act of 1964, 84 Harv. L. Rev. 1109, 20 1166 (1971). The legislative history to procedural amend- ments to the Act in 1972 also reveals that if Congress had any intention when it approved the addition of “sex” to the Act in 1964, it was to protect women. See H.R. Rep. No. 238, 92nd Cong., Ist Sess. 4-5 (1972) reprinted in 1972 U.S. Code Cong. & Ad. News 2137, 2140-2141. The language of Section 703(a) of Title VII, however, does not limit its protection to members of minority groups and women, and courts have refused to so limit it. See McDonald v. Sante Fe Trail Transportation Co., 427 U.S. 273, 280 (1976) (Title VII prohibits discrimination against whites as well as blacks); Diaz v. Pan American World Airways, Inc., 442 F.2d 385 (5th Cir.), cert. denied, 404 U.S. 950 (1971) (Title VII protects men as well as women). Rather than limit the Act to those groups that were undoubtedly the motivating force behind Title VII in 1964, courts have been guided in their interpretation by the larger purpose and principle that underlies it: (T}he removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classifications. Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971). Lower courts have staced the guiding principle of Title VII in a similar fashion: (T)he purpose of the Act was to provide a foundation in the law for the principle of nondiscrimination. Constru- ing the statute as embodying such a principle is based on the assumption that Congress sought a formula that would not only achieve the optimum use of our labor resources but, and more importantly, would enable indi- viduals to develop as individuals. Diaz v. Pan American World Airways, Inc., 442 F.2d at 386-87 (rule allowing only female flight attendants violates Title VII). Other courts have recognized that Title VII “requires an interpretation animated by the broad humanitarian and DRBSOR es ew ee 21 remedial purposes underlying the federal proscription of employment discrimination.” Barnes v. Costle, 561 F.2d 983, 994 (D.C. Cir. 1977) (sexual harrassment violates Title VII). The House Report to the 1972 amendments states the goal as follows: The time has come to bring an end to job discrimination once and for all, and to insure every citizen the opportu- nity for the decent self-respect that accompanies a job commensurate with one’s abilities. H.R. Rep. No. 238, 92nd Cong., Ist Sess. 4-5 (1972) reprinted in 1972 U.S. Code Cong. & Ad. News 2137, 2140-2141. These pronouncements establish that the language and remedial purpose of Title VII are broad enough to protect any individ- ual who is the victim of discrimination based on any of the impermissible factors—race, color, sex, religion or national origin. The Court of Appeals placed undue reliance on the lack of any legislative history indicating that Congress specifically intended to include transsexuals within the protection of Title VII. Courts have refused to follow such a rigid rule when construing the provisions of Title VII. For example, there is no legislative history which indicates that in 1964 Congress specifically intended to prohibit discrimination against men, single women who become pregnant, women who marry, women with pre-school age children, or the subclass of black females. Yet, in each of these instances the courts have drawn on the statute’s general language, remedial purpose, and principle of non-discrimination to extend Title VII to the discriminatory policy. See Phillips v. Martin-Marietta Corp., 400 U.S. 542 (1971); Jacobs v. Martin Sweets Co., 550 F.2d 364, 371 (6th Cir.), cert. denied, 431 U.S. 917 (1977); Sprogis v. United Airlines, Inc., 444 F.2d 1194 (7th Cir.), cert. denied, 404 U.S. 991 (1971); Diaz v. Pan American World Airways, Inc., 442 F.2d 385 (5th Cir. 1971); Jeffries v. Harris County Community Action Assoc., 615 F.2d 1025 (5th Cir. 1980). 22 The sexual harrassment cases also provide a prime exam- ple of how courts have refused to give sex the narrow and traditional interpretation adopted by the Court of Appeals.*® These decisions firmly establish that sex discrimination within the meaning of Title VII is not limited to disparate treatment founded solely or categorically on gender. Rather, discrimination is sex discrimination whenever sex is for no legitimate reason a substantial factor in the discrimination. Bundy v. Jackson, 641 F.2d 934, 942. The analysis in Barnes v. Costle, 561 F.2d 983, 994 (D.C. Cir. 1977), aptly applies to transsexuals: The statute in explicit terms proscribes discrimination “because of... sex,” with only narrowly defined excep- tions completely foreign to the situation emerging here. The legislative history similarly discloses a congressional purpose to outlaw any and all sex-based discrimination, equally with any other form of discrimination which Title VII condemns. [emphasis added] In reaching its conclusion, the D.C. Circuit was guided by the overall purpose of the Act and refused “to speculate as to whether Congress envisioned the particular type of activity” as prohibited by Title VII. Ja. The sexual harrassment and “sex plus” cases reveal why a broad and liberal approach to interpreting Title VII is required: (Title VII] evinces a congressional! intention to define discrimination in the broadest possible terms. Congress chose neither to enumerate specific discriminatory prac- tices, nor to elucidate in extenso the parameter of such nefarious activities. Rather, it pursued the path of * See, e.g., Bundy v. Jackson, 641 F.2d 934 (D.C. Cir. 1981); Tomkins v. Public Service Electric & Gas Co., 568 F.2d 1044 (3rd Cir. 1977); Wright v. Methodist Youth Services, Inc., 511 F. Supp. 307 (N.D. Il. 1981). Ne eee | manna et SO ne Re ON ers Ei SL Lema XS 23 wisdom by being unconstrictive, knowing that constant change is the order of our day and that the seemingly reasonable practices of the present can easily become the injustices of the morrow. Rogers v. Equal Employment Opportunity Commission, 454 F.2d 234, 238 (5th Cir.), cert. denied, 406 U.S. 957 (1972). Faced with congressional silence on the meaning of “sex” for purposes of Title VII, the District Court correctly gave the term a liberal and scientific interpretation which is true to the broad purpose of Title VII (C-6-8). Based on the extensive medical record before it, its observations of Ms. Ulane in the courtroom and on the witness stand, and taking guidance from the social policy of the State of IIli- nois, the District Court found: that sex is not a cut-and-dried matter of chromosomes, and while there may be some argument about the matter in the medical community, the evidence in this record satisfies me that the term, “sex,” as used in any specific sense and as used in the statute can be and should be reasonably interpreted to include among its denotations the question of sexual identity and that, therefore, transsexuals are protected by Title VII. [C-7-8) The District Court concluded that “sex” should not be limited to “chromosomal sex’’, absent some indication from Congress that it did not intend to prohibit all forms of sex discrimination. The language of Title VII is broad enough to protect an individual who has been discriminated against because she changed her sex from male to female. The Court of Appeals’ restrictive interpretation is based, in part, on its conclusion that Congress’ refusal to extend Title VII protection to homosexuals “indicates that the phrase in the Civil Rights Act prohibiting discrimination on the basis of sex should be given a narrow, traditional inter- pretation, which would also exclude transsexuals” (A-9). The Court of Appeals has erroneously lumped together dis- crimination against transsexuals with discrimination 24 against homosexuals. Transsexuals are people whose anatomic sex at birth is different from their psychological sex. The purpose of surgery is to align the two. Karen Ulane was discriminated against because she did just this, she changed her gender from male to female. Eastern valued this employee as a man. It rejected her as a woman. Noth- ing changed but her gender. Discrimination against homosexuals, on the other hand, is based on an individual’s sexual practices, something wholly unrelated to gender. Title VII’s general prohibition against sex-based dis- crimination protects an individual fired for reasons having nothing to do with merit and everything to do with gender. A condition of Ms. Ulane’s continued employment as a pilot for Eastern was that she remain a man. This is sex discrimination. 25 CONCLUSION The Court should grant the petition for certiorari in order to protect the integrity of the fact-finding role of the District Court and to ensure that all citizens enjoy the protection of Title VII's prohibition against sex discrimination. Respectfully submitted, DEAN A. DickKIE 30 South Wacker Drive Suite 2900 Chicago, Illinois 60606 (312) 207-1000 Attorney for Petitioner Of Counsel: Fay CLAYTON Brian D. Rocne SACHNOFF WEAVER & RUBENSTEIN, LTD. 30 South Wacker Drive Suite 2900 Chicago, Illinois 60606 February 14, 1985 APPENDIX A Opinion by Judge Wood JUDGMENT— ORAL ARGUMENT In the United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 August 29, 1984. Before Hon. WALTER J. CUMMINGS, Chief Judge Hon. HARLINGTON Woop, JR., Circuit Judge Hon. EDWARD DUMBAULD, Senior District Judge* KAREN FRANCES Augeek fem the Vaind Plaintiff-A ppellee, States District Court for No. 84-1431 The Northern District v of Illinois, Eastern - -_ r sd Division EASTERN AIRLINES, INC., A Delaware This cause was heard on the record from the United States District Court for the Northern District of Illinois, Eastern Division, and was argued by counsel. On consideration whereof, IT IS ORDERED AND ADJUDGED by this Court that the judgment of the said District Court in this cause appealed from be, and the same is hereby, REVERSED, with costs, and the case is REMANDED, in accordance with the opinion of this Court filed this date. *The Honorable Edward Dumbauld, Senior District Judge of the United States District Court for the Western District of Penn- sylvania, is sitting by designation. APPENDIX A dn the United States Court of Appeals No. 84-1431 KAREN FRANCES ULANE, Plaintiff-Appelilee, v. EASTERN AiR LINES, INC., a Delaware corporation, Defendant-Appeliant. Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 81 C 441l—John F. Grady, Judge. ARGUED JUNE 5, 1984—DECIDED AUGUST 29, 1984 Before CUMMINGS, Chie Judge, Woon, Circuit Judge, and DUMBAULD, Senior Judge.* Woon, Circuit Judge. Plaintiff, as Kenneth Ulane, was hired in 1968 as a pilot for defendant, Eastern Air Lines, ed 4 timely charge of sex discrimination withthe Equa “ sex discrimination with the Equai ege that Ulane's discharge violated Title VII United States District Court for the Western District of Penn. sylvania, is sitting by designation. 2 No. 84-1431 of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e—2000e-17 (1982): Count I alleges that Ulane was discriminated against as a female; Count II alleges that Ulane was dis- criminated against as a transsexual. The judge ruled in favor of Ulane on both counts after a bench trial. The court awarded her? reinstatement as a flying officer with full seniority and back pay, and attorneys’ fees. This cer- tified 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 ex- planation 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 dis- charge 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® in 1979. She ex- plains that although embodied as a male, from early 1 Counts III through IX, which allege violations of 42 U.S.C. §§ 19853), 1986, 18 U.S.C. § 371 (conspiracy), and 45 U.S.C. § 184 (Railway Labor Act). defamation, and intentional or reckless caus- ing of emotional and mental distress, have not yet been tried. 2 Since Ulane considers herself to be female, and appears in public as female, we will use feminine pronouns in referring to her. 3 Transsexualism is a condition that exists when a physiological- ly normal person (i.e., not a hermaphrodite—a Per whose sex is not clearly defined due to a congenital condition) experiences (Footnote continued on following page) ee i ae oe No. 84-1431 3 childhood she felt like a female. Ulane first sought psy- chiatric 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 reassign- ment surgery.’’* After the surgery, Illinois issued a revised 3 continued discomfort or discontent about nature’s choice of his or her par- ticular sex and prefers to be the other sex. This discomfort is generally accompanied by a desire to utilize hormonal, surgical, and civil procedures to allow the individual to live in his or her referred sex role. The ~~ <7 is appropriate only if the discom- ort has been continuous for at least two years, and is not due to another mental disorder, such as schizophrenia. See Testimony of Dr. Richard Green, expert witness for plaintiff, trial transcript for Sept. 26, 1983, 10:00 a.m., at 35-37; see ly American rhe eee Association, Diagnostic and Statistical Manual of Men- Disorders § 302.5x (3d ed. 1980); Edgerton, Langman, Schmidt & Sheppe, P ical Considerations of Gender Reassignment Surgery, 9 Clinics in Plastic Surgery 355, 357 (1982); Comment, The Law and Transsexualism: A Faltering Response to a Con- ceptual Dilemma, 7 Conn. L. Rev. 288, 288 n.1 (1975); Comment, Transsexualism, Sex Reassignment Surgery, and the Law, 56 Cor- nell L. Rev. 963, 963 n.1 (1971). To be distinguished are homosexuals, who are sexually attracted °_——- of the same sex, and transvestites, who are generally e heterosexuals who cross-dress, i.e., dress as females, for sex- ual arousal rather than social comfort; both homosexuals and transvestites are content with the sex into which they were born. See Diagnostic and Statistical Manual of Mental Disorders § 302.30; Wise & Meyer, Transvestism: Previous Findings and New Areas for Inquiry, 6 J. of Sex & Marital on 116-20 (1980); Comment, 7 Conn. L. Rev., supra, at 292; Comment, 56 Cornell L. Rev., supra, at 963 n.3. * Sex reassignment surgery for male-to-female transsexuals “‘in- volves the removal of the external male sexual organs and the construction of an artificial vagina by plastic surgery. It is sup- plemented by hormone treatments that facilitate the c in secon sex characteristics,” such as breast development. Com- ment, Cornell L. Rev., supra note 3, at 970 n.37 (citations omitted); see also Jones, Operative Treatment of the Male Transsexual, in Transsexualism and Sex Reassignment 313, 314-16 (Footnote continued on following page) 4 No. 84-1431 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 unaf- fected by the hormones and surgery. Ulane, however, claims that the lack of change in her chromosomes is irrelevant. Eastern was not aware of Ulane’s transsex- uality, her hormone treatments, or her psychiatric counsel- ing until she attempted to return to work after her reassignment surgery. Eastern knew Ulane only as one of its male pilots. 4 continued (R. Green & J. Money eds. 1969); Stoller, Near Miss: “Sex Change” Treatment and Its Evaluation, in Eating, Sleeping, and Sexuality 258, 259 (M. Zales ed. 1982); Shaw, Sex-change Capital: ~—- : a a Top Draw, Chicago Tribune, Aug. 14, 1984, § 5, at 1, 3, col. 3. 5 The normal individual has 46 chromosomes, two of which designate sex. An XX configuration denotes female; XY denotes male. These chromosome patterns cannot be surgically altered. Wise, Transsexualism: A Clinical Approach to Gender Dysphoria, 1983 Medic. Trial Tech. Q. 167, 170. 6 Biologically, sex is defined by chromosomes, internal and ex- ternal genitalia, hormones, and gonads. Wise, supra note 5, at 169. Chromosomal sex cannot be changed, and a uterus and ovaries cannot be constructed. This leads some in the medical profession to conclude that hormone treatments and sex reassignment surgery can alter the evident 7% ** an individual, but cannot chan the individual’s innate sex. , ¢.g., Wise, supra note 5, at 170; Stoller, supra note 4, at 273; Comment, Cornell L. Rev., supra note 3, at 970 n.37. Others disagree, arguing that one must look beyond chromosomes when determining an individual’s sex and consider factors such as psychological sex or assumed sex role. Comment, 7 Conn. L. Rev., supra note 3, at 290-91 & n.6, 292 oe sex may be most important factor); Comment, Cor- nell L. Rev., supra note 3, at 965. These individuals conclude that st-operative male-to-female transsexuals do in fact qualify as emales and are not merely “facsimiles.” E.g., Testirnony of Dr. Richard Green, expert witness for plaintiff, trial transcript for Sept. 27, 1983, 10:35 a.m., at 226 & 252. e ee i ere ae No. 84-1431 5 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 transsex- ual, and that Title VII prohibits discrimination on this basis.7 While we do not condone discrimination in any form,® 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 juris- diction. Section 2000e-2(aX1) 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 7 Not all of the experts who testified agreed that Ulane is a transsexual. (Although doctors attempt to perform sex reassign- ent surgery only on transsexuals—as opposed, for example, on uransvestites or schizophrenics, that an individual has undergone such surgery is not determinative of whether he or she is a true transsexual. See supra note 3 and sources cited therein.) If Ulane is not a transse , then she is a transvestite. Even in the trial judge’s view, transvestites are not covered by Title VII. 8 Eastern presented a substantial amount of testimony and evidence at trial to prove that Ulane’s discharge was not due to discrimination against her either as a transsexual or as a female, but we need not reach that issue. 6 No. 84-1431 district court recognized this, and ed that homosex- uals and transvestites do not enjoy Title VII protection, but distinguished transsexuals as persons who, unlike homosexuals and transvestites, have sexuai identity prob- lems; the judge agreed that the term “sex” does not com- prehend “sexual preference,” but held that it does com- or me “sexual identity.” The district judge based this olding 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.® 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’’ literal- ly and scientifically applies to transsexuals even if it does not apply to homosexuals or transvestites.1° We must dis- agree. 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 te outlaw discrimina- tion 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 con- ® The judge did recognize that there may be some argument in the alia community about the definition of sex that he adopted. See, e.g., supra notes 5 & 6. 10 Judge Grady explained: _ I have no problem with the idea that the statute was not intended and cannot reasonably be argued to have been in- tended to cover the matter of sexual preference, the prefer- ence of a sexual partner, or the matter of sexual gratification from wearing the clothes of the opposite sex. It seems to me an altogether different question as to whether the matter of sexual identity is comprehended by the word, “sex.” Be ne No. 84-1431 7 clusion 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 proteciion 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 (1979). The phrase in Title VII prohibiting discrimina- tion 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, 1.e., a per- son 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(aX1) 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 amend- ment 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) (cita- tions omitted); Deve ts in the Law—Employment Discrimination and Title VII of the Civil Rights Act of 1964, 84 Harv. L. Rev. 1109, 1167 (1971). This sex amend- ment was the gambit of a congressman seeking to scut- 8 No. 84-1431 tle 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. 1978). The total lack of legislative history supporting the sex amendment coupled with the circumstances of the amend- ment’s adoption clearly indicates that Congress never con- sidered 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 cove 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 sup- port an all-encompassing interpretation. Members of Congress have, moreover, on a number of occasions, attempted to amend Title VII to prohibit dis- crimination based upon “affectational or sexual orienta- tion.”?! Each of these attempts has failed. While the proposed amendments were directed toward homosexuals, see, e.g., Civil Rights Act Amendments of 1981: Hear- ings 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 11 £.9., 94th Congress: H.R. 166, 94th Cong., 1st Sess. (1975); H.R. 2667, 94th Cong., 1st Sess. (1975); H.R. 5452, 94th Cong., Ist Sess. (1975); 95th Congress: H.R. 451, 95th Cong., Ist Sess. (1977); H.R. 775, 95th Cong., Ist Sess. (1977); H.R. 2998, 95th Cong., 1st Sess. (1977); H.R. 4794, 95th Cong., lst Sess. (1977); H.R. 5239, 95th Cong., Ist Sess. (1977); H.R. 8268, 95th Cong., Ist Sess. (1977); H.R. 8269, 95th Cong., 1st Sess. (1977); 96th Con- gress: H.R. 2074, 96th Cong., 2d Sess. (1980); 97th Congress: H.R. 1454, 97th Cong., 2d Sess. (1982). _— No. 84-1431 9 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 interpretation, which would also exclude transsexuals. Furthermore, Congress has con- tinued to reject these amendments even after courts have specifically held that Title VII does not protect transsex- uals from discrimination. Compare H.R. 1454, 97th Cong., 2d Sess. (1982) (hearing held on Jan. 27, 1982) with Som- mers v. Budget Marketing, Inc., 667 F.2d 748, 750 (8th Cir. Jan. 8, 1982) (per curiam); Holloway v. Arthur Andersen & Co., 566 F.2d 659, 662-63 (9th Cir. 1977); Powell v. Read’s, Inc., 436 F. Supp. 369, 371 (D. Md. 1977); Grossman v. Board of Education, 11 Fair Empl. Prac. Cas. (BNA) 1196, 1199 (D.N.J. 1975), aff'd mem., 538 F.2d 319 (3d Cir.), cert. denied, 429 U.S. 897 (1976); 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); see also United States v. PATCO, 653 F.2d 1134, 1138 (7th Cir. 1981) (Congress is presumed to know the law and judicial interpretations of it); United States v. Ambrose, Nos. 83-1213 to 83-1221, 83-1291, slip op. at 15 (7th Cir. July 17, 1984) (Wood, J., concurring and dissenting) (same). Although the maxim that remedial statutes should be liberally construed is well recognized, that concept has reasonable bounds ene which a rr: cannot go without transgressing the prerogatives of Congress. in a view, to inclurle cceainads within the reach of Title VII far exceeds mere statutory interpretation. Congress had a narrow view of sex in mind when it passed the Civil Rights Act, and it has rejected subsequent at- tempts to broaden the scope of its original interpretation. For us to now hold that Title VII protects transsexuals would take us out of the realm of interpreting and review- ing and into the realm of legislating. See Gunnison v. Commissioner, 461 F.2d 496, 499 (7th Cir. 1972) (it is for 10 No. 84-1431 the legislature, not the courts, to expand the class of peo- ple - ae by a statute). This we must not and will not do. Congress has a right to deliberate on whether it wants such a broad sweeping of the untraditional and unusual within the term “sex” as used in Title VII. Only Con- gress can consider all the ramifications to society of such a broad view. We do not believe that the interpretation of the word “sex” as used in the statute is a mere matter of expert medical testimony or the credibility of witnesses produced in court. Congress may, at some future time, have some interest in testimony of that type, but it does not control our interpretation of Title VII based on the legislative history or lack thereof. If Con- gress believes that transsexuals should enjoy the protec- tion of Title VII, it may so provide. Until that time, however, we decline in behalf of. the Congress to judicially expand the definition of sex as used in Title VII beyond its common and traditional interpretation. Our view of the application of Title VII to this t of case is not an original one. Sommers v. Budget Marketing, Inc., 667 F.2d 748, 750 (8th Cir. 1982) (per curiam), and Holloway v. Arthur Andersen & Co., 566 F.2d 659, 662-63 (9th Cir. 1977), the only two circuit court cases we found that have specifically addressed the issue, both held that discrimination against transsexuals does not fall within the ambit of Title VII.12 In Sommers, Budget Marketing fired an anatomical male who claimed to be female once Budget Marketing discovered that he had 12 For examples of district courts that have refused transsexuals Title VII protection, see T v. EEOC, 25 Empl. Prac. Dec. (CCH) 431,638, at 19,732-33 (E.D. Wis. 1980); Powell v. Read’s, Inc., 4386 F. Supp. 369, 371 (D. Md. 1977); Grossman v. Board of Education, 11 Fair wr Prac. Cas. (BNA) 1196, 1199 (D.N.J. 1975), aff'd mem., 538 F.2d 319 (3d Cir.), cert. denied, 429 U.S. 897 (1976); Voyles v. Ralph K. Davies Medical Center, 403 F. Sup ; 456, 457 (N.D. Cal. 1975), aff'd mem., 570 F.2d 354 (9th Cir. BEST AVAILABLE COPY © = No. 84-1431 11 misrepresented himself as female when he applied for the job. In Holloway, Arthur Andersen, an accounting firm, dismissed the plaintiff after he informed his superior that he was undergoing treatment in preparation for sex change surgery. We agree with the Eighth and Ninth Cir- cuits that if the term ‘sex’ as it is used in Title VII is to mean more than biological male or biological female, the new definition must come from Congress. B. Title VII and Ulane as a Female. The triai judge originally found only that Eastern had discriminated against Ulane under Count II as a trans- sexual. The judge subsequently amended his findings to hold that Ulane is also female and has been discriminated against on this basis. Even if we accept the district judge’s holding that Ulane is female, he made no factual findings necessary to support his conclusion that Eastern discriminated against her on this basis. All the district judge said was that his previous “findings and conclusions concerning sexual discrimination against the plaintiff by Eastern Airlines, Inc. apply with equal force whether plaintiff be regarded as a transsexual or a female.” This is insufficient to support a finding that Ulane was dis- criminated against because she is female since the district judge’s previous findings all centered around his conclusion that Eastern did not want “[a] transsexual in the cockpit” (emphasis added). Ulane is entitled to any personal belief about her sex- ual identity she desires. After the surgery, hormones, ap- arance changes, and a new Illinois birth certificate and PAA pilot’s certificate, it may be that society, as the trial judge found, considers Ulane to be female. But even if one believes that a woman can be so easily created from what »emains of a man, that does not decide this case. If Eastern had considered Ulane to be female and had discriminated against her beceuse she was female (.e., Eastern treated females less favorably than males), then the argument might be made that Title VII applied, c/- 12 No. 84-1431 Holloway v. Arthur Andersen, 566 F.2d at 664 (although Title VII does not prohibit discrimination against trans- sexuals, ‘‘transsexuals claiming discrimination because of their sex, male or female, would clearly state a cause of action under Title VII’’) (dicta), but that is not this case. It is clear from the evidence that if Eastern did discrimi- nate against Ulane, it was not because she is female, but because Ulane is a transsexual!%—a biological male who takes female hormones, cross-dresses, and has surgically altered parts of her body to make it appear to be female. Since Ulane was not discriminated against as a female, and since Title VII is not so expansive in scope as to pro- hibit discrimination against transsexuals, we reverse the order of the trial court and remand for entry of judgment in favor of Eastern on Count I and dismissal of Count II. REVERSED. A true Copy: Teste: Clerk of the United States Court of Appeals for the Seventh Circuit 13 Because of our holding in section A, however, we need not and do not decide whether Eastern did actually discriminate against Ulane because of her transsexuality. USCA 40227--Midwest Law Printing Co., Inc., Chicago—8-29-84—400 APPENDIX B aed we nme . a —_ B-1 APPENDIX B IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION KAREN FRANCES ULANE, ) Plaintiff v. . NO. 81 C 4411 EASTERN AIRLINES, INC., et al., Defendants. - FINAL JUDGMENT ORDER PURSUANT TO RULE 54(b) For the reasons explained on December 28, 1983, in the court’s oral findings of fact and conclusions of law, and the supplemental Memorandum Opinion entered this date, the court finds the issues in favor of the plaintiff and against the defendant Eastern Airlines on Counts I and II of the com- plaint. The plaintiff is hereby awarded the following relief: MONETARY RELIEF Salary $166,476 Set Offs: Loss of license, benefits paid by East- ern during back-pay period (16,277) Plaintiff’s earnings during back-pay period (9,709) BACK-PAY $140,490 Interest at 8 per cent per annum 15,839 BACK-PAY PLUS INTEREST $156,329 Reimbursement for out-of-pocket expenses; life and health insurance premiums; dental care; and airline tickets TOTAL MONETARY AWARD THROUGH DECEMBER 31, 1983 $158,590 2,261 B-2 B-3 REINSTATEMENT i which multiple claims are presented and in which multiple Plaintiff shall be reinstated as of the date of her discharge, | parties are involved; that the determination of the remaining with the following benefits: | claims will be greatly facilitated, and as a practical matter ) perhaps even obviated, by a decision on appeal from the Pension Contributions | foregoing final judgment on Counts I and II; and, accord- ingly, there is no just reason for delaying the entry of final judgment on Counts I and II or for delaying an appeal from that judgment. Eastern shall make contributions in plaintiff’s name to pension plans “A” and “B” according to the terms of the contract between the pilots and Eastern Airlines (“the contract”), based on the “salary of record” retroac- | tive to April 24, 1981. Eastern is not required to DATED: FEB. 8, 1984 reimburse plaintiff’s pension plans for the amounts she has withdrawn from the plans since April 24, 1981, and will not incur any other liability as a result of plaintiff’s | ENTER: /s/ JOHN F. GRADY withdrawals. | Sick Leave Plaintiff’s sick leave bank shall be credited with sick leave accrued at a rate of three days per month, retroac- | tive to April 24, 1981, as provided in Section 38(A)(2) of the contract. ) United States District Judge Vacation Plaintiff’s vacation bank shall be credited as provided in Section 16 of the contract. ; Debentures ) Plaintiff shall be awarded debentures and any other benefits which are part of any “give-back” programs in ) effect during the back-pay period. . Seniority Plaintiff’s seniority shall be reinstated and shall accrue to the position she would have had had she not been terminated, and as provided in the contract. | The court expressly directs that final judgment be entered in favor of the plaintiff and against the defendant Eastern Airlines as aforesaid. The court finds that this is a case in | 3 APPENDIX C mr oe ROT Rn oe Ba RR NT RN BRN D> Or eR Orr C-1 APPENDIX C IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION KAREN FRANCES ULANE, v. EASTERN AikLINES, INC., a Delaware corporation, a Plaintiff Docket No. 81 C 4411 Chicago, Illinois - December 28, 1983 FRANK BORMAN, THOMAS R. 10:25 a.m. BUTTION, DAVID P. MILLETT and ROBERT SHIPNER, Defendanis. 4 TRANSCRIPT OF PROCEEDINGS BEFORE THE HONORAB LE JOHN F. GRADY, Judge. TRANSCRIPT ORDERED BY: Mr. DEAN DICKIE APPEARANCES: For the Plaintiff: Mr. DAVID M. BROWN SACHNOFF, WEAVER& RUBENSTEIN, LTD. One IBM Plaza, Suite 4700 Chicago, Illinois 60611, by Mr. DEAN DICKIE Mr. BRIAN D. ROCHE Ms. FAY CLAYTON For the Defendants: CONKLIN & ADLER, LTD. 100 West Grand Avenue Chicago, Illinois 60610, by Ms. CATHERINE TINKER GAMBRELL & RUSSELL 400 First Atlanta Tower Atlanta, Georgia 30383, by Mr. DAviD M. BRown Court Reporter: LAURA M. BRENNAN 219 South Dearborn Street, Room 1918 Chicago, Illinois 60604 (The following proceedings were had in open Court:) MR. DICKIE: Good morning, your Honor. THE COURT: Good morning. THE CLERK: 81 C 411, Ulane v. Eastern Airlines, case on trial. THE COURT: I will give you my findings of fact and conclusions of law. The threshold issu before the Court is whether Title VII of the Civil Rights Act of 1964 applies to transsexuals. The statutory language in Title 42, Section 2000e-2(a) provides that: “It shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual or otherwise to discriminate against any individual with respect to his compensation, terms, con- ditions or privileges of employment because of such individual’s race, color, religion, sex, or national origin.” So the specific question before the Court is whether the phrase, “because of the individual’s sex,” encompasses a person such as the plaintiff who alleges that she is a C-3 transsexual or, alternatively, that having gone through sex reassignment surgery, she is now no longer a man but a woman. The legislative history of the statute I have just quoted is hardly a gold mine of information. It is summarized in the case of Holloway v. Arthur Andersen & Company, 566 F. 2d 659 at page 662, a Ninth Circuit case, which I cited in denying the motion to dismiss. The Court there said: “There is a dearth of legislative history on Section 2000e-2(a)(1) which was enacted as Section 703(a)(1) of the Civil Rights Act of 1964. The major concern of Congress at the time the Act was promulgated was race discrimination. Sex as a basis of discrimination was added as a floor amendment one day before the House approved Title VII and without prior hearing or debate.” Well, those who have looked a little further into the matter know that this amendment introducing sex into the picture was a gambit of a Southern senator who sought thereby to scuttle the whole Civil Rights Act, and, much to his amazement and no doubt undying disappointment, it did not work. We not only got an act including race discrimina- tion, which he had sought to bar, but we got sex as well. The question we are confronting here today is: What did we get when we got sex? I have previously held in denying defendants’ motion to dismiss that I believed the complaint adequately alleged that the discharge was related to sex or had something to do with sex. I continue to hold that layman’s reaction to the simple word and to the facts as alleged in the complaint. Most of the cases and perhaps all of the cases which have addressed this issue have held that the statute does not apply to transsexuals. I think, however, all of those cases were decided on motions to dismiss, and, in any event, I think none of them was decided on a factual record as complete as the one we have here. C-4 Those who argue that the legislative history indicates a lack of intention on the part of Congress that the Act would apply to transsexuals cite the unsuccessful attempts to amend Title VII in later years to include protection for homosexuals and transvestites. I think that argument is invalid. There is in the record before us evidence which makes quite clear that there is a distinction between homosexuals and transvestites on the one hand and transsex- uals on the other. Homosexuals and transvestites are not persons who have sexual identity problems. They are content with the sex into which they were born. Transsexuals, on the other hand, are persons with a problem relating to their very sexual identity aS a man or a woman. I believe on that basis the situation of a transsexual is distinguishable. I have no problem with the idea that the statute was not intended and cannot reasonably be argued to have been intended to cover the matter of sexual preference, the prefer- ence of a sexual partner, or the matter of sexual gratification from wearing the clothes of the opposite sex. It seems to me an altogether different question as to whether the matter of Sexual identity is comprehended by the word, “sex.” Prior to my participation in this case, I would have had no doubt that the question of sex was a very straightforward matter of whether you are male or female. That there could be any doubt about that question had simply never occurred to me. I had never been exposed to the arguments or to the problem. After listening to the evidence in this case, it is clear to me that there is no settled definition in the medical community as to what we mean by sex. I will also put it more tentatively and say that if there is such a settled definition, it was not adverted to by any of the experts who testified at this trial. Plaintiff’s witness, Dr. Green, and other witnesses as well emphasized that sexual identity is in part a psychological question. That is to Say, it is a question of one’s own self-perception: How does one PAD 2g” te tee C-5 perceive oneself in terms of maleness or femaleness? It is also a social matter: How does society perceive the individual? Such a problem is not unprecedented in the law or in the specific context of laws prohibiting discrimination. I refer you to an interesting case decided by my colleague, Judge Getzendanner, Carrillo v. Illinois Bell Telephone Compuny, 538 F. Supp. 793. The question there was whether Title VII and 42 U.S.C. Section 1981 applied to Hispanics when those statutes used the word, “race.” The Court there pointed out that many Hispanics are white in the same sense that non- Hispanics are white, and yet they perceive themselves to be of a different race, and they are perceived by some others as being of a different race. Judge Getzendanner remarked at page 795: “On the issue whether discrimination against Hispan- ics constitutes discrimination based on race or on national origin, there is a substantial divergence of opinion. Some Courts have viewed such discrimination as based solely on national origin and have dismissed Hispanics’ claims under Section 1981. The trend among the Judges of this district has been to consider dis- crimination against Hispanics as racial discrimination. “The Courts extending Section 1981 to discrimination against Hispanics have frequently relied on the follow- ing dicta from Budinsky v. Corning Glass Works, 425 F. Supp. 786, 788, Western District Pennsylvania, 1977. The terms, ‘race’ and ‘racial discrimination, are subject to a commonly accepted, albeit sometimes vague, under- standing. Those Courts which have extended the cover- age of Section 1981 have done so on a realistic basis within the framework of this common meaning and understanding. On this admittedly unscientific basis, Hispanic persons and Indians, like blacks, have been traditional victims of group discrimination, and how- ever inaccurately or stupidly, are frequently and even C-6 commonly subjected to a racial identification as non- whites. There is accordingly both a practical need and a logical reason to extend Section 1981’s proscription against exclusively racial employment discrimination to those groups of potential discriminatees. “As Judge Moran explained the issue in Aponte, supra, ‘The plain meaning of the statute, Section 1981, atternpts to remedy different treatment of whites and non-whites. Because Hispanics are frequently identified as non-whites, this Court believes that the scope of Section 1981 is broad enough to extend to that group.’” Judge Getzendanner concludes that it is necessary to con- sider each case on its own merits and determine whether the particular Hispanic plaintiff was subjected to race dis- crimination, which would not necessarily be determined by the actual color of his or her skin. Now, that case is not, of course, precisely applicable here, but it is illustrative of the fact that the things we know we do not necessarily know and iat people sometimes react to other people according to stereotypes, misperceptions, and other motivations which are arguably discriminatory and are arguably redressable under statutes which might not be thought ordinarily to apply to those situations. Title VII is a remedial statute which is to be liberally construed. That fact, I think, is well accepted and not irrelevant to the inquiry before us. The only defense witness I can recall who argued with or contradicted the proposition that sex is at least in part a question of self-perception and a societal perception was Dr. Wise. He stated flatly that sex is chromosomal. That creates a dispute in the evidence, but it is a dispute which I resolve against the defendant because I do not feel comfortable relying upon the testimony of Dr. Wise. He was a remarkable witness. He stated that the plaintiff is beyond a shadow of a doubt a transvestite. This is a man of science who had never seen the plaintiff, who knew very little about her, who had not even read all of the records C-7 pertaining to her, who had read very few of the recent records which seemed to me to be very important, who had read some of the literature in the field but stated that he disagreed with other literature even though he had not read it, and who stated that he knows beyond a shadow of a doubt—those are his exact words—that this plaintiff is a transvestite and not a transsexual. I have been listening to witnesses for many years, and I have never heard an expert witness state that he was sure of anything beyond a shadow of a doubt. That was typical of Dr. Wise’s testimony. That is the most egregious example that I can think of from his testimony, but it is by no means atypical of the tenor of his testimony. I can tell you quite candidly that I attach no weight whatever to his testimony and, other things being equal, would be inclined to believe that the opposite of anything he testified to would be more probably true than not true. I am not using that method, however, to arrive at my factual conclusions in this case because there is an abundance of other evidence for me to refer to. On the question of the reaction of society to transsexuals, I believe the Illinois statute is pertinent. Plaintiff has under the laws of the State of Illinois been issued a new birth certificate with a sex designation of female. This is a statute that was enacted by the people of the State of llinois. This to me is pretty strong evidence of a social policy in this area. While I do not agree with plaintiff’s argument that that statute makes the plaintiff a female or that the statute has some sort of binding effect in a federal civil rights action, I do think that the enactment of the statute is a circumstance which is pertinent to the question of plaintiff’s sexual iden- tity and the larger question of whether sex is a cut-and-dried matter of chromosomes. I find by the greater weight of the evidence that sex is not a cut-and-dried matter of chromosomes, and that while there may be some argument about the matter in the medical C-8 community, the evidence in this record satisfies me that the term, “sex,” as used in any scientific sense and as used in the Statute can be and should be reasonably interpreted to include among its denotations the question of sexual identity and that, therefore, transsexuals are protected by Title VII. I will say now as I said at the time I denied the motion to dismiss that, if I can borrow a phrase, there is not a shadow of a doubt that Congress never intended anything one way or the other on the question of whether the term, “sex,” would include transsexuals. The matter simply was not thought of. t was not discussed. Nothing was discussed that we have any record of that would have any relevance to the question before us. But I believe that working with the word that the Congress gave us to work with, it is my duty to apply it in what I believe to be the most reasonable way. I believe that the term, “sex,” literally applies to transsexuals and that it applies scientifically to transsexuals. That there is room for argument on the question does not release me from making a decision one way or the other, and I have made the decision which seems to me to be the one most consistent with the factual record that was developed in this case. I turn now to the second question, and that is whether the plaintiff is a transsexual. The defendant argues that she is not a transsexual, that instead she is a transvestite. If that is true, she is not protected by the statute. There are a number of things which persuade me that the plaintiff is a transsexual. She was found to be such by the unanimous decision of the Gender Identity Board of the University of Chicago Medical School. It would be difficult, I think, to imagine a more prestigious auspices under which to make a finding of any kind. I am disinclined to overrule that finding on the basis of the testimony I have heard from defendants’ witnesses. I found Dr. Berger a very credible witness. Although he was called as a witness by the defense, his testimony was, of course, favorable to the plaintiff. He was her doctor. He was ee ee eee - C-9 perhaps primarily in charge of her case. There is no doubt whatever in Dr. Berger’s mind that plaintiff was and is a transsexual. I believe that he is eminently qualified to make that determination. Plaintiff meets the criteria of the DSM III, the recognized definitional standard for judging transsexuality. The defendant argues with these determinations and says that what has happened here is that plaintiff managed to persuade these eminent medical practitioners by means of retrospective distortion. In short, as Dr. Arbitt said in his deposition, the plaintiff conned her way into the operation. I understand that it is the defendants’ position in this trial that some of that distortion may even have been inadvertent and unconscious, but, nonetheless, it is the defendants’ posi- tion that in large part the plaintiff through a facile manipu- lation of these medical persons managed to get for herself this operation in 1980 that she had been denied in 1970. Dr. Berger said something that struck me as important. He was asked whether he relied upon what plaintiff said, and his response was, “I did not rely only on what she said.” If anything is true in this cass, that is true. This takes us to an analysis of the person we are dealing with. At the time of this irreversible decision, the plaintiff was 38 years old. She had had two marriages. She had experienced the pleasure and the happiness to the extent she was able to do so of marriage and fatherhood and certainly was well aware of what she would be foresaking irretriev- ably if she subjected herself to this surgery. She had more than the ordinary understanding that a patient would have prior to undergoing surgery. Most of us put outselves in the hands of doctors and hope for the best. This was not true in the case of plaintiff. She knew more about this subject matter from a scientific point of view than many psychia- trists, if not most psychiatrists, and certainly more than most physicians. C-10 Now, the defendant says this is an arrow in its quiver. Because she knew so much, she was able to dissemble. That is one interpretation of the evidence, and it is one possibility. But the inference I draw from plaintiff’s sophistication in the question of transsexuality and sex reassignment surgery is that she had a complete, or as complete as can be, under- standing of the pitfalls of an unsuccessful adjustment to the life of a female after transsexual surgery. She had undoubtedly read of those examples, which, in fact, are quite few, of sex reassignment patients who had decided later that they made a mistake, and some of them came to a bad end. The plaintiff is in the upper range of intelligence. She certainly was capable of understanding all of the implica- tions of what it was she was doing. Those implications did not merely extend to her physical well-being, her psychologi- cal well-being, the question of whether she was going to be miserable or relatively happy for the remaining 40 or so years of her life, but they extended to the very subject matter of this lawsuit. The plaintiff undoubtedly knew that she was asking for trouble in terms of her continued employment if she were to have this surgery. That, of course, is why she did not volunteer this information all these years. She anticipated the very reaction that did indeed eventuate. She is accused of having poor judgment in failing to make these disclosures. I wiil get to that in a while. One cannot accuse her of being incapable of making fairly accurate predictions about what was going to happen. She lost her job, and before she had this surgery, she knew that that was a very good possibility. She went ahead and had the surgery anyway knowing that by doing that she would jeopardize something she truly does love, her job flying an airplane. Now, I do not know what it would take to convince defendant that a person who undergoes so radical a procedure as the one that was involved here, knowing all of the dangers and all of the trouble that it would and might involve, did not do it for some ulterior purpose. Defendant suggests that plaintiff did not really believe she was a Ob - C-11 transsexual. She believed she was a transvestite and, there- fore, was virtually certain to have an unsuccessful, if not disastrous, post-operative course; she anticipated that she would lose her job and have to fight in Court to get it back, with a very uncertain result, and yet for some reason she saw fit to pull the wool over the doctors’ eyes and have this operation. That just is not a reasonable proposition, and yet that is what the defense is in this case in large part. Harking back to what Dr. Berger said, he said, “No, I do not rely on just what she says.” What he meant was he relied on what she did, and I, too, rely on what she did in order to make my determination as to whether she was a true transsexual, which, after all, is largely a matter of her own attitude, her own belief about herself, or whether, on the other hand, she was not a transsexual but an aging and dissembling transvestite. I find that she was and is a transsexual. The fact that she took a long time to make up her mind and that there were many changes of mind and reversals and uncertainties in the process is not, as defendant would have me believe, evidence of the plaintiff’s insincerity and evidence of the mistake that plaintiff made in ultimately having the surgery; rather, it is to me a scenario of what typically happens in any scientific endeavor. It is a matter of trial and error, and it is a matter of checking and recheck- ing. It is a matter of going back to the drawing board. There was nothing about plaintiff’s history that causes me to feel that I am in a position to second-guess the University of Chicago Gender Identity Board on the question of whether plaintiff was a transsexual and should have had this operation. Dr. Berger originally thought plaintiff was not a transsex- ual but eventually changed his mind. That did not to him indicate that there was any reason not to have the operation and not to classify plaintiff as a transsexual, and there is not anything in the definition of a transsexual which precludes C-12 the element of doubt; but those doubts were resolved before the surgery, and I might say that the fact that there were only seven months of the real life experience as opposed to a year or two years is to me absolutely immaterial. It was a matter of economic necessity that the plaintiff proceed with this matter and get back to work if that were possible. Waiting any longer would have simply been biding time for no purpose. All of her physicians were satisfied that she had spent a sufficient length of time to indicate that she could successfully live as a woman and that the surgery was proper. It seems to me that one of the many unreasonable positions Eastern takes in this case is that plaintiff did not try to live as a woman in her job. She had been fired from her job just as soon as she had the surgery. Apparently Eastern would have me believe that if Ken Ulane had shown up for work in a dress and boarded the plane that there would have been no problem at Eastern. Now, if Eastern means, well, she should have done it in some other job, she did do it in whatever other job she could find. How much that proved I do not know because it was not the job that she hopes to regain. Where she could have found a job as an airline pilot cross- dressing as a woman and maintain that job for a period of a year is something which leaves me totally mystified. Another consideration on whether plaintiff is a true transsexual is the post-operative course. It has not been a long time. It has been three years. To the extent that plaintiff has had an opportunity to demonstrate a successful post-operative course, she has done so. Her adjustment has been remarkably good. She testified without contradiction that she is a member of her community and is relating well to other people of both sexes, active in her church, in fact, vice president of her church having been elected to that position by co-parishioners who know of her situation. What more can she do? She is not flying an air liner, but Eastern will not let her fly an air liner, nor will anybody else in the present circumstance. aAnere. 7. ae i et OR al C-13 Eastern’s medical witnesses would never be satisfied with the post-operative course. If we were in here 30 years from now and there had not been a single problem that could be demonstrated, they would still take the position that you cannot tell about tomorrow. Another factor which I think is relevant is how plaintiff appears to other people. I have the psychiatric reports and the testimony of the various psychiatrists as to how plaintiff appears to them. She appears to them to be a woman. She conducts herself as a woman. She dresses as a woman. There is nothing flamboyant, nothing freakish, about the plaintiff. It would take an extremely practiced eye, it seems to me, to detect any difference between the plaintiff and the biological woman. My observation of her in this courtroom and on the witness stand leads me t concur with those witnesses who have said that she appears to be a biological woman. That, I think, has a bearing on the likelihood of her successful post-operative course. It also has a bearing, if seems to me, on the question of whether she is a transsexual in the first place. There has been no reversion to any masculine behavior that we have any knowledge of. Eastern, of course, has studiously avoided making any examination of the plaintiff, or having her tested, having their own psychiatrist examine her as they do in the case of other employees with psychological problems. They prefer instead to say that the post-operative course is unknown and that the path is fraught with danger. The third question is whether the plaintiff was discharged because of her transsexuality, which is another way of ask- ing whether she was discharged because of her sex. The question, of course, is not whether sex was the sole cause of her discharge. The question is whether it was a motivating factor but for which she would not have been fired. There may have been other causes. I will deal with that as I go along. But assuming there were, if she would not have been fired but for her transsexuality, the statute has been violated. C-14 There are two unusual aspects to this case. Well, I suppose there are many, but two that are immediately relevant to the present inquiry. The first is that the transsexual surgery is what triggered the firing. That is the very thing that is in issue in the case that is undeniably the initial occasion for the inquiry which led to the discharge. Plaintiff had been employed by Eastern as an airline pilot for 12 years and had performed successfully. As Captain Causey said, she was better than an average pilot, and if they are not good, they do not keep them. So in saying that she was better than average, that means she was better than good. The first inkling of any discharge was when she had this surgery. So that differentiates this case from the usual Title VII case where the defendant says there were many things in the background of this employee which explain the dis- charge other than race or sex or whatever might be involved. Here there is not anything in the background other than the matters which first arose when plaintiff had the sex reassign- ment surgery. The second unusual feature of this case is that the dis- charge was managed and coordinated by the defendant’s legal department, which carefully drafted the two discharge letters in an obvious attempt to avoid liability under the sex discrimination law. You had here a filtering process that you do not ordinarily have when a disciplinary action is taken against an employee. There is usually a foreman without a lawyer at his elbow who does the dastardly deed, and then we argue about why he did it. Here the lawyers were in charge from day one and screened everything that happened, in fact, literally pulled the strings throughout the entire case. I refer to the lawyers in Eastern’s legal department. I have nothing but admiration for the conduct of Eastern’s trial counsel in this case. The defendant has attempted to articulate non-dis- criminatory reasons which, unless pretextual, would justify Dettingen aa C-15 the firing. What I want to do now is to take the two discharge letters and go over them item by item to see whether or not plaintiff has proved in each instance by the greater weight of the evidence that the particular reason was pretextual. Turning to the first discharge letter dated April 24th, 1981, the first reason was that the continued employment of plaintiff as a pilot was inconsistent with the safety consider- ations which underlie the so-called coordinated crew concept of Eastern. The law requires, first of all, that the defendant articulate a reason for the discharge. I do not believe that the defendant has even articulated a rational reason for the discharge. Articulate means more than simply to recite by rote; it means to state in a comprehensible and rational way so that the meaning of the statement can be understood. The question at issue here is the relationship of the plain- tiff’s transsexuality to any legitimate safety consideration. It is that relationship which first has to be articulated, and then we get to the question of whether the articulation is a pretext. In my view, we do not even get past the first hurdle in this case. You will recall how I tried to have Dr. Millett and Captain Causey explain to me what Eastern means by this safety consideration in relation to the coordinated crew concept. Those questions were not in the script, and they were not very good at ad libbing. As I sit here now, I still do not know what any such actual relationship could be. We broke it down a little further into the question of trust. Trust about what? What did I get but more coordinated crew concept, underlying psychological problems, pat phrases which have been programmed into the defense in this case but which have no factual basis. Eastern went out of its way not to learn whatever could be learned in plaintiff’s favor on the question of safety. Its primary source of information was a psychiatrist who has had absolutely no experience with adult transsexuals and C-16 who continues to this day to be largely ignorant of that area of psychiatry, and I refer to Dr. Kelly. Dr. Millett, who knows nothing about the subject, talked to Dr. Kelly, who knows next to nothing about the subject, and got from Dr. Kelly the name of Dr. Meyer, who knows a lot about the subject, but who in a fairly short telephone conver- sation with Dr. Millett, if it took place, could not have told Dr. Millett that plaintiff constituted a danger in the cockpit of an airplane. There is not even any such contention. The only contention is that Dr. Meyer said that the surgery was still experimental and not a cure for the underlying psycho- logical problem. Eastern took it from there and conjured up all sorts of dangers that inhered in the so-cailed underlying psychologi- cal problems. It was not even a matter of their putting the burden of proof on the plaintiff. They never gave plaintiff any kind of a fair hearing, never gave her any opportunity to show that they were wrong, or that even if as a general proposition there might be some reason for concern that that concern did not apply to her particular situation. Eastern from the outset here took the attitude that its mind was made up, and it did not want to be confused with the facts. It substituted for any kind of investigation worthy of the name a prejudiced, close-minded pre-determination of the question of whether plaintiff was suitable to continue in the cockpit of one of their air liners. I am not going to go through the testimony of these witnesses. I merely invite anyone who is curious to read with attention the testimony of those witnesses who sought to explain or, I think more properly, who sought to avoid explaining because they could not explain the relationship between any legitimate safety concern and plaintiff’s transsexualism, the plaintiff’s surgery or anything else about the pleintiff’s medical or psychological condition. Everybody passed the buck. The legal department wrote the letter. They did not show up to testify, but Captain C-17 Buttion said he relied on them to find out whether the drugs that plaintiff was taking were dangerous. He assumed, testi- fied Captain Buttion, that the medical department had deter- mined that the hormones plaintiff was taking were not approved by the FAA. He relied entirely on the medical department and on the legal department. The medical department in turn relied upon the information I have already described. The safety concerns that Eastern purports to have been cognizant of appear to be readily dispelled when confronted with the facts. I give you a dramatic example: Captain Shipner. If ever there was a witness who entered this court- room convinced that plaintiff did not belong in a cockpit, it was Captain Shipner, who did not make the decision, incidentally, and by saying he was convinced, I do not mean to say that Eastern was convinced. Eastern was not con- vinced at all, but a lot of things that Eastern did have served to convince some of its employees that there is something wrong with plaintiff that precludes her from flying. Captain Shipner testified that he was very concerned about these hormones that the plaintiff was taking, but then he said: “Well, if it turned out that those hormones had been prescribed by a physician, he would have no problem with it at all.” I think we could make a believer out of Captain Shipner if we had a little more time, but Eastern never took the time and was not interested in taking the time. Captain Helms, another non-believer, testified that the reason he was concerned with the plaintiff’s truthfulness and why he felt that her lack of truthfulness would be devastat- ing as far as crew coordination was concerned was that she had been taking drugs which affected her ability to fly. He said, and I believe this is an exact quote: “If I knew someone was taking heroin, I would not let them in the cabin.” C-18 Now, here is one of the most distinguished captains of Eastern Airlines who apparentiy believed before he came into this courtroom that there was a legitimate comparison between someone who is taking heroin and someone who is taking the female hormones that the plaintiff was taking. He went on to say in further testimony that if he knew there were no side effects or adverse reactions, then it would not bother him that plaintiff had been taking hormones. He said that if all plaintiff is taking is Ovulen-21, that changes his answer altogether as far as his concern about truthfulness on the question of drugs is concerned. What would have happened here if instead of taking the negative ostrich-like position that Eastern took it had taken a positive constructive attitude toward this problem and attempted to solve it intelligently by investigation and edu- cation rather than by denial and pretext? What would have happened? I think that the testimony of Captain Lewandowski, who testified as the plaintiff’s rebuttal witness, is very credible. I think it speaks extremely well for the character of such a man to have hefriended plaintiff, taken her into his home, fully realizing the attitude of Eastern and fully realizing the attitude of some of the other pilots. That, as I say, reflects well on his character in my view, and I find him otherwise to be an extremely credible witness. He said that the present Situation is that there is a small group of pilots who are dead set against the plaintiff, and there is a small group like himself who are very strongly in favor of her. He said that the vast majority of pilots are waiting to see what happens, and he believes that they believe in the system. If the systema represented by the FAA says she is fit to fly, that would be good enough for them. That strikes me as credible testimony, far more believable that the testimony of people like Captain Helms and Captain Shipner who predict dire consequences should plaintiff return to the cockpit, but whose testimony falls apart as soon as you Start confronting them with the facts. I think those C-19 witnesses, Captain Shipner and Captain Helms, do not take the attitude: Do not confuse me with the facts. They strike me as being willing to listen to the facts, and I have no doubt whatever that that attitude is characteristic of the vast majority of Eastern pilots who, after all, have to be highly intelligent and resourceful individuals, and I emphasize the word, “individuals,” to hold the responsible jobs that they do. I think if they are given the facts and had they been given the facts initially, there would have been no problem here. I conclude that reason number one, first of all, is not articulated in any sense that I understand that word, but even if we get over that and get to the question of whether it is a pretext. It is a sham of the first order. Let’s go to the second reason; that plaintiff’s first class medical certificate is not unconditional. Even Dr. Millett agreed in this courtroom that plaintiff’s certificate is substan- tially the same as the certificate issued to alcoholics. I so find. It seems to me substantially identical. Any differentia- tion that I heard amvunts to a mere quibble. It is interesting to trace the origin of the requirement that there be any follow-up at all on plaintiff’s certificate. The origin was the anticipated unfavorable reaction of the East- ern crews which might in turn cause emotional problems for the plaintiff. Here we have Eastern doing its best to drum up the very kind of adverse crew reaction that motivated the limitation in the first place, using that limitation as a reason for disqualifying the plaintiff. You wil! note that Dr. Haynes before recommending the follow-up says quite clearly that he knows of no reason at all that the plaintiff is not qualified to fly the airplane. His concern is not with any emotional problem the plaintiff might have if she is left alone but, rather, with some response that an unfriendly treatment at the hands of fellow crew members might cause. C-20 Eastern has not changed its mind about the plaintiff even though she now has an unrestricted first class medical certifi- cate. There is no retreat from this particular reason. Dr. Hutson testified from this stand the other day that the FAA is wrong. He does not pay any attention to that unrestricted first class medical certificate. The FAA does not know what it is doing. It is not following its own rules. Dr. Hutson is an example of one of the Eastern witnesses who, by his own admission on the witness stand, could never be convinced by any evidence whatsoever that plaintiff is fit to fly the air- plane. I find that reason number two is a pretext. Reason number three was that surgery does not solve the underlying psychological problem and that the surgery was unproven and experimental. We have an articulation prob- lem again because there is a total failure to relate this concern to any question of cockpit safety. Let’s assume the surgery does not work. Let’s assume that it does not do anything about the underlying transsexuality wrich is the underlying psychological problem. How does it follow that plaintiff would be a less safe pilot than she had been for the preceding 12 years when as a transsexual she safely piloted Eastern airplanes? Even Dr. Meyer, who has a jaundiced view of reassign- ment surgery, Says that on the average the worst that can happen is that there is no improvement. It does not make them any better, it does not make them any worse. He tends to ignore the substantial body of medical literature which Supports the proposition that sex reassignment surgery has on the whole been successful in alleviating the anxieties and the depressions that transsexuals without the surgery fre- quently have. Perhaps ignore is the wrong word. He simply disagrees with the conclusions of these other experts in the field. Even Dr. Meyer, whose views are certainly in the minority, does not support the view that an unsuccessful surgery leaves the patient worse off than he or she was before the surgery. C-21 It should be noted that the surgery is not designed to cure anything. The person after the surgery is still a transsexual. So it does not cure the transsexuality. It is hoped that the person will be more comfortable and lead a happier life, but the most energetic supporter of the surgery would have to concede that even where that happens, the person who had the surgery still has an underlying problem. He is walking around with a sexual situation that he or she was not born with. Now, if that is what is meant by not solving the underly- ing problem, nobody can argue with that. What Eastern failed to articulate here is what underlying problem there is other than the mere fact of transsexuality. Try as I might, try as counsel for the plaintiff might, we could not worm it out of anybody. I sat and listened to Dr. Kelly for a couple of hours repeat the same rote response about underlying psychological problems, the nature of which he does not know but he is sure exist and he is sure constitute a safety hazard. The other thing that I think is important about reason number three is that Eastern made no effort whatever to determine what the particular situation was in plaintiff’s case. They simply did not have enough information to take the position that they did; namely, that you can categorize transsexuals across the board as persons who would represent a safety problem in a stressful situation. That generalization is no more true of transsexuals than it would be true of people who are left-handed or who are dyed-in-the-wool Republicans. It is no escape from that fact to say, “Well, we just do not know.” Ignorance, prejudice, discrimination, and hatred have throughout history been justified by, “We do now know; we cannot take a chance.” I think that one of the things that Title VII sought to accomplish was the elimina- tion of that kind of attitude. This might be a good point for me to comment generally on the medical witnesses in this case. I went through my notes last night very carefully, and I did in this case what I C-22 usually do. I make my own notes of my impressions of the witnesses as we go along: Are they credible? Do they seem to me to be telling the truth? Are they reliable? My reaction to each and every plaintiff’s medical witness was positive. My reaction to each and every defense medical witness was negative. Now, I am considering in that connection Dr. Northrup and Dr. Berger to be plaintiff’s witnesses even though they were called by the defendant. There was just a difference in the caliber of person. Dr. Meyer, Dr. ‘Millett, Dr. Wise, Dr. Kelly, and Dr. Hutson are, in my view, contemptuous of transsexuals. There runs through their testimony an intoler- ance and a prejudice that is palpable. Dr. Millett, Dr. Kelly, and Dr. Hutson seem to me to have an additional aspect to their testimony; that is, they somehow resent the intrusion of a transsexual into the avia- tion field. They seem to think that the respectability of aviation is compromised by the presence of a transsexual. That, incidentally, is an attitude that permeate the tes- timony of virtually al] the defense witnesses who are associ- ated with aviation. I find that item number three is a pretext. Turning to item four, Eastern says that having plaintiff in the cockpit would counteract their efforts to assure the public that airline travel is safe. Well, that argument, of course, is no better than the proposition that a transsexual in the cockpit makes airline travel unsafe. It falls with the other pretexts, and that is what it is. There is no evidence of a lack of safety. There is no evidence of any rational belief on the part of Eastern that there is a safety problem. This is the kind of argument that opponents of civil rights litigation urged back in those long-ago days when we did not have anti-discrimination laws. We cannot serve blacks in this restaurant. Nobody will come in. We cannot employ a black to drive this bus. Nobody will ride the bus. We sure C-23 can’t have any blacks carry the mail or work in a depart- ment store. We will lose customers. Well, the American public is a lot smarter than the bigots gave them credit for being, and those predictions did not prove to be true. I am old enough to remember when th [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0191%3A1. Public record. Not legal advice.