Title VII of the Civil Rights Act, which applies to employers in all industries, including construction, has long prohibited discrimination in employment on the basis of a number of characteristics, including "sex." Initially, people thought they understood what "discrimination on the basis of sex" was. The early, commonly accepted, definition was:

That simple definition was, and is, of course, correct. However it is not "everything you always wanted to know" about the definition.

It is now nearly 40 years since Title VII was enacted. In that time, the courts and Congress have contributed more and more to the definition. Discrimination on the basis of sex now includes discrimination on the basis of pregnancy, discrimination on the basis that someone does not conform to a "sexual stereotype," and discrimination in the form of sexually-tinged or sexually-based harassment, even if directed at members of both sexes.

Many state and local laws also specifically prohibit, as a form of sex discrimination, discrimination on the basis of sexual preference (homosexuality), or other factors such as gender identity disorder, including transvestitism, or cross-dressing. So far, however, federal law has not been expanded to included sexual preference, gender identity disorder or cross-dressing as prohibited bases for discrimination.

Oiler v. Winn-Dixie
The most recent confirmation that federal law does not prohibit discrimination on the basis of gender identity disorder or cross-dressing is the case of Peter Oiler v. Winn-Dixie Louisiana, Inc., Civil Action No. 00-3114, issued September 16, 2002 by the United States District Court for the Eastern District of Louisiana. Oiler was a truck driver for Winn-Dixie, having begun working for that company in 1979. In 1999, Oiler told his supervisor that he was "trans-gendered." Oiler told his supervisor that this did not mean that he was "transsexual" and that he did not intend to become a woman, but that for a number of years he had gone out in public (at restaurants, clubs, shopping malls and churches) while cross-dressed. Oiler also told his supervisor that while he was cross-dressing, he assumed the female persona of "Donna."

About two days after Oiler told his supervisor about his public cross-dressing, Winn-Dixie discharged Oiler from employment. The reason given by Winn-Dixie was that Oiler had publicly adopted a female persona and publicly cross-dressed as a woman, and Winn-Dixie believed that if Oiler were recognized by Winn-Dixie customers as a cross-dresser, customers would disapprove of plaintiff's lifestyle and Winn-Dixie would lose business as a result.

Oiler sued Winn-Dixie alleging sex discrimination prohibited by Title VII. Oiler argued that terminating him for his off-duty acts of cross-dressing and impersonating a woman was a form of sexual stereotyping which is prohibited by Title VII. In other words, Winn-Dixie's stereotypical notion of a male was one that did not engage in cross-dressing or role-playing as a woman. Oiler also argued that he was a victim of disparate treatment because women who dressed as men were not terminated by Winn-Dixie.

The court relied heavily on the case of Ulane v. Eastern Airlines Inc., 742 F.2nd 1081 (7th Circuit, 1984), cert. denied, 471 U.S. 1017 (1985). Ulane involved a male airline pilot who was fired after attempting to return to work as a woman following sex reassignment surgery. The 7th Circuit Court of Appeals determined that the word "sex" in Title VII meant "biological sex," not "sexual preference" and/or "sexual identity." Many courts after Ulane, came to the same conclusion.

In Oiler's case, the Louisiana District Court also came to that conclusion. The court found that being "trans-gendered" or suffering from a gender identity disorder, was not a characteristic based on "biological sex." The court also concluded that terminating Oiler for cross-dressing was not a situation where Oiler had failed to conform to a gender stereotype. The court noted that Oiler's situation was not simply a matter of an employee of one sex exhibiting characteristics associated with the opposite sex. Instead, it involved a person of one sex assuming the role of a person of the opposite sex. The court noted:

The court noted that many people might disagree with Winn-Dixie's rationale for terminating Oiler's employment, especially given that: Oiler had worker for Winn-Dixie for approximately 20 years; Oiler had never cross-dressed at work; and Oiler's cross-dressing was not criminal or a threat to public safety. The court noted however that the court's function was simply to construe the law in accordance with the proper statutory construction and judicial precedent. The court declined to make a moral judgment or a "just cause" decision.

Oiler's other claim was that he was the victim of disparate treatment because Winn-Dixie did not terminate the employment of female employees who dressed in men's clothing. Apparently, the only evidence Oiler submitted that involved female employees wearing male clothing involved female employees who wore jeans, plaid shirts, and work shoes while working in Winn-Dixie's warehouse. The court found no evidence that these women were trans-gendered or that they were cross-dressers; in other words, the court found no evidence that they impersonated men and adopted masculine personas or had gender identity disorders. As a result, the court concluded that the women were not similarly situated to Oiler and that there could be no disparate treatment on that basis.

Based on all the foregoing analysis, the court issued summary judgment for Winn-Dixie and dismissed Oiler's complaint.

Conclusion
For those accustomed to watching televised sports, an approximate image of what Oiler's cross-dressing may have looked like can be found in a prominent television commercial showing hefty, burly men putting on dresses, high-heeled shoes and make-up before attending a Washington Redskins' football game as fans known as "The Hogs." For now, at least at the federal level, it remains up to employers, and not the federal courts enforcing Title VII's ban on discrimination, whether any of their employees who exhibit such non-mainstream behavior as cross-dressing in public and assuming the persona of a member of the opposite sex should remain employed or not.