Count I alleges that plaintiff was discharged because she is
a woman. Count II alleges that she was discharged because she
is a transsexual.
I feel more comfortable with Count II. I believe that these
are truly alternate theories and that it cannot be both ways.
It has got to be one or the other. The evidence much more
clearly establishes in my opinion that transsexuals are
entitled to protection under the act than it does that an
operated transsexual is now a woman. While I would not argue
with the latter proposition, the former seems to me more
strongly supported by this record.
Accordingly, I am going to enter judgment against the
defendants and in favor of the plaintiff on Count II, the
transsexual count. In doing so, I do not mean to imply that if
Count I 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 basis of the record
that has already been made here.
Now, I believe that judgment is proper on Count II against
all defendants but Shipner. It is not clear from the complaint
just who is charged in what count, but Shipner is not alleged
to have done anything that I can see in Counts I or II. I
gather he is in the conspiracy count and some of the other
counts later on, but as to the remaining defendants, Eastern,
Buttion, Millett —
MR. DICKIE: Excuse me, your honor. I believe it was
stipulated that Title VII was against the company.
THE COURT: Against the company only?
MS. TINKER: Yes.
THE COURT: All right, that simplifies matters.
Judgment will be entered against Eastern only.
Now, as I indicated before we started this trial, I believed
and still believe that this case will be greatly simplified by
a determination on appeal concerning the sex discrimination
counts. Either way the case went, the sensible thing to do in
my view was to certify the judgment under Rule 54(b). The case
is not, however, at this juncture in a posture for such
certification because we do not have a final order. In order
to have a final order, we cannot have merely a declaration of
rights; we have got to have a judgment that is enforceable.
I am going to declare and do declare that the plaintiff is
entitled to reinstatement with full seniority from the date of
her discharge, all employment benefits that she would
otherwise have received had she not been discharged, full back
pay, and her reasonable attorneys' fees. What remains to be
determined is the amount of the back pay and, of course, the
amount of these benefits and her place on the roster, the
possible question of mitigation of damages, all of which, it
seems to me, will be fairly simple.
It seems to me that much of it can be stipulated to, but
maybe not. I do not know. I urge you to get together as you
have throughout this case. There has been acrimony, but I
think generally speaking counsel have conducted themselves as
professionals, and I am sure you will continue to do so, and
you can save your clients a lot of time and expense by
cooperating in whatever further discovery might be necessary.
Plaintiff's income tax returns, for instance, should be
produced on the question of mitigation or whatever other fact
they may be pertinent to.
There is one more item I want to cover before I cease these
brief remarks, and that is a very important misquotation that
occurred in the reported version of my oral opinion when I
denied the motion to dismiss. I did not even know it had been
reported. Somebody sent it in, and when I
read it the other day in 28 F.E.P. Cases there is one
statement that is the exact reverse of what I said or at least
what I meant to say. I am going to read the statement so I can
correct it now in the record.
This is at page 1439 of that report. The statement was:
"What does seem to me apparent is that there is
no way out of the conclusion that whatever the
physiology may be, it has nothing to do with sex
as that term is constantly understood."
Now, the word, "nothing," there totally turns on its head
what I was trying to say. I am sure that I used the word,
"something," and if I did not, that is what I meant to say,
and I want to clarify that for future reference.
It is surprising to me that nobody caught that before it was
sent in. I think I would have caught it had somebody told me
they were going to send it in. I think for whatever good it
might do, I will send that correction into the book publisher
so that I do not go down in posterity as someone who cannot
articulate a reason for a decision.
In my oral findings of fact and conclusions of law announced
from the bench on December 28, 1983, I expressed an intention
to find in favor of the plaintiff on Count II (discrimination
against a transsexual) and against the plaintiff on Count I
(discrimination against a female). It seemed to me that
plaintiff had made a much better case that she is a
transsexual than that she is a female. Upon further
reflection, I think plaintiff may have made an equally good
case on Count I. See M.T. v. J.T., 140 N.J. Super. 77,
355 A.2d 204 (App. Div.), cert. denied, 71 N.J. 345, 364 A.2d 1076
(1976); In Re Anonymous, 57 Misc.2d 813, 293 N.Y.S.2d 834
(N.Y.Civ.Ct. 1968); The Law and Transsexualism: A Faltering
Response to a Conceptual Dilemma, 7 Conn.L.Rev. 288 (1975);
Comment, Transsexualism, Sex Reassignment Surgery, and the Law,
56 Cornell L.Rev. 963 (1971); Comment, Transsexuals in Limbo:
The Search for a Legal Definition of Sex, 31 Md.L.Rev. 236
(1971). Moreover, if I were to find against plaintiff on Count
I, she would be compelled to cross appeal, and this would be
anomolous. She has prevailed on her Title VII claim and should
not be burdened with having to appeal the rejection of an
alternative theory to support the relief granted.
Accordingly, the judgment will be in favor of plaintiff on
both Counts I and II of the complaint.
Plaintiff has moved, pursuant to Rule 52(b) Fed.R.Civ.P.,
for clarification of the court's rulings in regard to Count I
of the complaint. She asks for an indication that the findings
supporting the conclusion that plaintiff is a transsexual also
support a finding that she is a female and, further, that the
findings as to sexual discrimination be made expressly
applicable to Count I as well as to Count II.
The basic question in this case is whether plaintiff was
discharged because of her sex within the meaning of Title VII.
I found that, whether plaintiff be regarded as a transsexual
or as a female, she was discharged by Eastern Airlines because
of her sex. On the question of plaintiff's exact sexual
status, I was satisfied from the evidence that she is a
transsexual and so found. If Title VII protects transsexuals,
then plaintiff is entitled to the relief awarded. On the other
hand, if on appeal Title VII is held not to apply to
transsexuals, then plaintiff should have a ruling on her
alternative position that she is a female. As an alternative
to my finding that plaintiff is a transsexual, I find that
plaintiff's post operative legal status is that of a female.
If on the evidence presented in this case the choices were
limited to male or female, I would and do find that the
evidence clearly predominates in favor of the conclusion that
plaintiff is a female, not a male. All of the evidence which
the view that plaintiff is a transsexual also supports the
finding that she is 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.
© 1992-2003 VersusLaw Inc.