This article specifically examines the issues and controversies that transsexual individuals have encountered as a result of their lack of protection under anti-discrimination laws, particularly the Americans with Disabilities Act (ADA) and Title VII. Part I is an overview of our society's binary sex/gender system and how this system serves to exclude and disenfranchise transsexuals. Part II examines the relationship between disability law and transsexuals, both explaining why they were excluded from the ADA and how state disability laws have provided more protection. Part III discusses how transsexuals have fared under a Title VII sex discrimination approach. This section also analyzes whether Title VII, or sex discrimination laws in general, are appropriate remedies for discrimination against transsexuals. Finally, Part IV suggests the need for a separate category prohibiting discrimination against transsexuals. This category would be difficult to achieve because it requires the reconstruction of American society's beliefs, assumptions, and norms associated with the binary sex/gender system. However, this protection is necessary to provide transsexuals with the legal recognition that would allow them to gain fair and equal treatment. Part V concludes that the creation of such a category could achieve new protections against transsexuality-based discrimination.
Malloy, S. Elizabeth, "What Best to Protect Transsexuals from Discrimination: Using Current Legislation or Adopting a New Judicial Framework" (2010). Faculty Articles and Other Publications. 302.