WWW- The rights of transsexuals in the workplace got short shrift from a Utah judge who found a transsexual could not sue a bus company for firing her because she did not conform to sex stereotypes.

Senior U.S. District Judge David Sam noted that “there is currently a great deal of tension” in the courts over how to apply employment discrimination law to transsexuals. But his decision left transsexuals with no protection under Title VII of the Civil Rights Act.

“[T]o include transsexuals within the reach of Title VII … would take us out of the realm of interpreting and reviewing and into the realm of legislating,” Sam said in summarily dismissing the claims of Krystal Etsitty against the Utah Transit Authority.

Etsitty was born male but is in the process of changing her sex to female. UTA fired her from her job as a bus driver after she told supervisors that she planned to use the women’s restroom.

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), held that Title VII prohibits employers from discriminating against employees who fail to conform to their “traditional” gender roles. Last year, the 6th U.S. Circuit Court of Appeals said that precedent applies to transsexuals.

But Sam strongly disagreed with Smith v. City of Salem, 369 F.3d 912, invoking a medical treatise on gender-identity disorder to support his view that the behavior of transsexuals goes beyond mere nonconformity.

“There is a huge difference between a woman who does not behave as femininely as her employer thinks she should, and a man who is attempting to change his sex and appearance to be a woman,” he said.

A Washington state judge recently refused to dismiss a similar case but ruled after a bench trial that a transsexual Border Patrol employee had failed to prove she was harassed for failing to behave like a biological male.

Etsitty’s lawyers plan to appeal what appears, at best, a questionable ruling. The tension in the courts is likely to continue until the Supreme Court steps in — which could happen if the 10th Circuit affirms Sam.