Volume XX

Interpreting Title VII's "Sex" Inclusively: A Proposal of How and Why to Interpret TItle VII to Protect Transgender Employees

by Danna Seligman

This article will utilize two tools of statutory interpretation to suggest how “sex” in Title VII should be interpreted to include transgender employees. Since the text of the statute does not resolve the ambiguity of “sex,” this article examines tools for interpreting the text through different lenses. First, this article will briefly review recent and pending litigation regarding Title VII’s protections of LGBTQ employees, including the pending Supreme Court about Title VII’s application to transgender employees. Second, this article will demonstrate that relying upon the legislative history of Title VII provides little guidance as to the meaning of “sex” and, therefore, cannot be determinative of the term’s interpretive scope. Finally, this article will explore a constitutional avoidance approach to including transgender in Title VII’s “sex” by showing that to avoid an equal protection question, the statute should be construed to include transgender sex-stereotyping within the term “sex.”

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