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DOBRE v. AMTRAK

November 30, 1993

ANDRIA ADAMS DOBRE
v.
NATIONAL RAILROAD PASSENGER CORPORATION ("AMTRAK")



The opinion of the court was delivered by: BY THE COURT; HUTTON

 HUTTON, J.

 November 30, 1993

 Presently before the Court are the defendant National Railroad Passenger Corporation's ("AMTRAK") Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6) or, in the Alternative to Strike Certain Demands, the plaintiff Andria Adams Dobre's ("Dobre") response and AMTRAK's reply.

 I. FACTUAL BACKGROUND

 Dobre, a transsexual, was employed by AMTRAK from May, 1989 until March 28, 1990. When she *fn1" was hired by AMTRAK, Dobre presented herself as a man. After several months, she informed her supervisors that she was receiving hormone injections in order to begin the process of becoming female. However, she does not aver that she actually underwent sex-reassignment surgery during the period that she was employed by AMTRAK. Rather, plaintiff asserts that she was discriminated against because of her new gender while in the process of transforming her body to confirm with her psychological sexual identity.

 Dobre contends that after she informed her supervisors of the hormone treatments she was discriminated against in the following respects, among others: (1) she was told that a doctor's note was required in order to dress as a female; (2) she was required to dress as a male; (3) she was not permitted to use the women's restroom; (4) the plaintiff's supervisors referred to her by her male name; and (5) her desk was moved out of the view of the public. On June 30, 1993, she filed a complaint alleging in Count I that AMTRAK's actions constitute sex-based discrimination under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e-2, and, in counts II and III respectively, that its actions constitute sex-based discrimination and handicap discrimination in violation of the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. Cons. Stat. Ann. § 955(a). AMTRAK moves to dismiss the plaintiff's complaint.

 II. DISCUSSION

 A. Standard

 Federal Rule of Civil Procedure 8(a) requires that a plaintiff's complaint set forth "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a). Defendant has moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). When considering a motion to dismiss, this Court shall take all allegations contained in the complaint as true and construe them in the light most favorable to the plaintiff. H.J. Inc. v. Northwest Bell Tel. Co., 492 U.S. 229, 249-50, 109 S. Ct. 2893, 106 L. Ed. 2d 195 (1989). The complaint shall only be dismissed if "'it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.'" Id. (quoting Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984)); Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)).

 B. Applying the Standard to Count I: The Title VII Claim

 Title VII prohibits an employer from taking adverse employment actions because of an employee's "sex." 42 U.S.C. § 2000e-2(a)(1). The key inquiry in defining the term "sex" is, of course, to ascertain Congress' intent. Ulane v. Eastern Airlines, Inc., 742 F.2d 1081, 1084 (7th Cir. 1984), cert. denied, 471 U.S. 1017, 105 S. Ct. 2023, 85 L. Ed. 2d 304 (1985). It is well established that the term "sex" is to be construed narrowly, according to its plain meaning. Ulane, 742 F.2d at 1085-86; Sommers v. Budget Marketing, Inc., 667 F.2d 748, 750 (8th Cir. 1982); Wood v. C.G. Studios, Inc., 660 F. Supp. 176, 178 (E.D. Pa. 1987); Grossman v. Bernards Township Bd. of Educ., 11 Fair Empl. Prac. Cas. (BNA) 1196, 1975 WL 302, at *4 (D.N.J. Sept. 10, 1975), aff'd mem., 538 F.2d 319 (3d Cir.), cert. denied, 429 U.S. 897, 97 S. Ct. 261, 50 L. Ed. 2d 181 (1976).

 The plaintiff avers in her complaint that AMTRAK engaged in unlawful discriminatory practices, in violation of § 2000e-2(a)(1), "solely because of [the plaintiff's] female gender." (Complaint P 22). The term "sex" as used in § 2000e-2(a) is not synonymous with the term "gender". Holloway v. Arthur Andersen & Co., 566 F.2d 659, 662 (9th Cir. 1977) (rejecting appellant's argument that Title VII prohibits discrimination based upon gender, which would encompass discrimination based upon transsexualism). The term "sex" in Title VII refers to an individual's distinguishing biological or anatomical characteristics, whereas the term "gender" refers to an individual's sexual identity. Holloway, 566 F.2d at 662-63. Accordingly, an employer may not discriminate against a female because she is female. Ulani, 742 F.2d at 1087; Holloway, 566 F.2d at 663. However, neither the plaintiff's memorandum of law nor the Court's independent research has disclosed any case broadening Title VII so as to prohibit an employer from discriminating against a male because he wants to become a female. Simply stated, Congress did not intend Title VII to protect transsexuals from discrimination on the basis of their transsexualism. Ulani, 742 F.2d at 1087; Sommers, 667 F.2d at 750; Holloway, 566 F.2d at 663; see also Wood, 660 F. Supp. at 178 (collecting cases).

 Although a transsexual cannot maintain a Title VII action qua transsexual, as the Ninth Circuit Court of Appeals recognized in Holloway, "transsexuals claiming discrimination because of their sex, male or female, would clearly state a cause of action under Title VII." 566 F.2d at 664 (emphasis added). Thus, if AMTRAK considered Dobre to be female and discriminated against her on that basis (i.e. treated her less favorably than male employees), then Dobre ...


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