This Note examines a new development in federal Title VII sex discrimination jurisprudence specifically in the context of transsexual and homosexual plaintiffs, describing the courts' gradual shift away from formalism towards a more realistic approach in this area. Part II begins by examining the anatomical sex rule established by the three major pre-Schwenk decisions categorically rejecting transsexuals' Title VII claims. This section then considers the two subsequent Supreme Court decisions, Price Waterhouse and Oncale, and the Ninth Circuit's Schwenk opinion. Part II concludes that the Schwenk court correctly read Price Waterhouse and Oncale as mandating a departure from the anatomical sex approach. Part III looks at the federal courts' confusing application of Title VII sex discrimination law to homosexual plaintiffs, arguing that the courts' use of the sex/sexual orientation dichotomy is unwise and inherently unworkable. Part IV analyzes and critiques the anatomical sex rule as a legal principle, and Part V examines the likelihood of success for future transsexual and homosexual Title VII sex discrimination plaintiffs. In the Conclusion, this Note argues that the courts should follow the Ninth Circuit's "sex plus gender" approach in Schwenk as being both consistent with Price Waterhouse and Oncale and superior to the anatomical sex rule. Finally, this Note contends that the courts should read Title VII dynamically to reach discrimination based on societal male/female binarism and heterosexual gender stereotypes.
Masako Kanazawa, Schwenk and the Ambiguity in Federal "Sex" Discrimination Jurisprudence: Defining Sex Discrimination Dynamically under Title VII, 25 SEATTLE U. L. REV. 255 (2001).