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Litigation Tracker: Ninth Circuit

Covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, Guam and the Northern Mariana Islands

Outdated case law in the circuit has found that discrimination based on sexual orientation does not violate Title VII of the Civil Rights Act. However, other case law in the circuit has positively referenced the connection between sex discrimination and discrimination based on sexual orientation.

  • In a September 24, 2002 ruling in Rene v. MGM Hotel the 9th Circuit wrote, “We would hold that an employee’s sexual orientation is irrelevant for purposes of Title VII.”
  • On July 16, 2001, the 9th Circuit ruled in Nichols v. Azteca Rest. Enters., Inc., the case of a gay man who faced harassment – including anti-gay slurs, implying that he was not acting the way a man should act. The court determined that this sort of harassment of a gay person is motivated by the person’s failure to conform to gender stereotypes, and that this amounts to harassment “because of sex.”

Outdated case law in the circuit has found that discrimination based on gender identity does not violate Title VII of the Civil Rights Act. However, case law in the circuit has positively referenced the connection between sex discrimination and discrimination based on gender identity:

  • On December 23, 1977, the 9th Circuit ruled in Holloway v Andersen & Company that Title VII does not prohibit discrimination based on gender identity. The circuit court wrote, “A transsexual individual’s decision to undergo sex change surgery does not bring that individual, nor transsexuals as a class, within the scope of Title VII. This court refuses to extend the coverage of Title VII to situations that Congress clearly did not contemplate.” 
  • However, the Holloway ruling has been questioned by more recent decisions from the 9th Circuit. On February 29, 2000, the 9th Circuit ruled in Schwenk v. Hartford that a transgender woman serving a prison sentence appropriately stated a claim of sex discrimination under the Gender Motivated Violence Act when filing a complaint about an assault from a prison guard. The plaintiff argued that she was discriminated against because of the perception that she was a “man who ‘failed to act like one.'” In its ruling, the 9th Circuit wrote in reference to claims of discrimination from transgender people, “In the context of Title VII, federal courts (including this one) initially adopted the approach that sex is distinct from gender, and, as a result, held that Title VII barred discrimination based on the former but not on the latter. Male-to-female transsexuals, as anatomical males whose outward behavior and inward identity did not meet social definitions of masculinity, were denied the protection of Title VII by these courts because they were the victims of gender, rather than sex, discrimination. The initial judicial approach taken in cases such as Holloway has been overruled by the logic and language of Price Waterhouse. What matters, for purposes of this part of the Price Waterhouse analysis, is that in the mind of the perpetrator the discrimination is related to the sex of the victim:  here, for example, the perpetrator’s actions stem from the fact that he believed that the victim was a man who “failed to act like” one. Thus, under Price Waterhouse, “sex” under Title VII encompasses both sex-that is, the biological differences between men and women-and gender. Discrimination because one fails to act in the way expected of a man or woman is forbidden under Title VII. Accordingly, the argument that the GMVA parallels Title VII and applies only to sex is in part right and in part wrong. The GMVA does parallel Title VII. However, both statutes prohibit discrimination based on gender as well as sex. Indeed, for purposes of these two acts, the terms ‘sex’ and ‘gender’ have become interchangeable.”
  • The Schwenk ruling has been cited by several courts, including a district court in New York that ruled in the 2003 case Tronetti v. TLC HealthNet Lakeshore Hosp. that a plaintiff’s claims of hostile work environment, harassment, and discrimination because of her transition from male to female were actionable under Title VII. 


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Ninth Circuit

Stockman v. Trump

Case Challenging Trump's Directive Banning Military Service for Transgender Americans

Key Date: January 22, 2019 • SCOTUS Action Granting Stay of Ruling
Status: Awaiting Further Action
Legal Team: Equality California, GLBTQ Advocates & Defenders, National Center for Lesbian Rights
Type: Other LGBT Litigation

On September 4 Stockman v. Trump was filed in the U.S. District Court for the Central District of California challenging Trump's attempt to reinstate a ban on open service for transgender people.

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Karnoski v. Trump

Case Challenging Trump's Directive Banning Military Service for Transgender Americans

Key Date: January 22, 2019 • SCOTUS Action Granting Stay of Ruling
Status: Awaiting Ruling from the 9th Circuit
Legal Team: Lambda Legal
Type: Other LGBT Litigation

On August 28 Karnoski v. Trump was filed in the U.S. District Court for the Western District of Washington challenging Trump's attempt to reinstate a ban on open service for transgender people.

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