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ULANE v. EASTERN AIRLINES

December 28, 1983

KAREN FRANCES ULANE, PLAINTIFF,
v.
EASTERN AIRLINES, INC., A DELAWARE CORPORATION, FRANK BORMAN, THOMAS R. BUTTION, DAVID P. MILLETT AND ROBERT SHIPNER, DEFENDANTS.



The opinion of the court was delivered by: Grady, District Judge.

TRANSCRIPT OF PROCEEDINGS

(The following proceedings were had in open Court.)

MR. DICKIE: Good morning, your Honor.

THE COURT: Good morning.

THE CLERK: 81 C 4411, Ulane v. Eastern Airlines, case on trial.

THE COURT: I will give you my findings of fact and conclusions of law.

The threshold issue 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, conditions 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 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 (9 Cir. 1977), 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 discrimination, 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.

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 transsexuals 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 preference 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 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 Company, 538 F. Supp. 793. The question there was whether Title VII and 42 U.S.C. § 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
  Hispanics 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
  discrimination against Hispanics as racial
  discrimination.
    "The Courts extending Section 1981 to
  discrimination against Hispanics have frequently
  relied on the following 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, understanding.
  Those Courts which have extended the coverage 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 however inaccurately or
  stupidly, are frequently and even 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, attempts 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 consider each case on its own merits and determine whether the particular Hispanic plaintiff was subjected to race discrimination, 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 think we know we do not necessarily know and that 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 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 Illinois. 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 identity 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 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. It 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 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' position that in large part the plaintiff through a facile manipulation 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 case, 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 irretrievably 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 ourselves 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 psychiatrists, if not most psychiatrists, and certainly more than most physicians.

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, understanding 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 implications of what it was she was doing. Those implications did not merely extend to her physical well-being, her psychological 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 will 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 transsexual. She believed she was a transvestite and, therefore, 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 rechecking. 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.

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.

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 to 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, it 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. ...


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