dissenting:

While I agree with the majority in the belief that Congress probably never contemplated that Title VII would apply to transsexuals, I dissent from the decision that the statute affords such plaintiffs no benefit. I would not limit the right to claim discrimination to those who were born into the victim class.

The only issue before us is whether a transsexual whose condition has not yet become stationary can state a claim under the statute if discharged because of her undertaking to change her sex. I read from the language of the statute itself that she can.

This is not a “sexual preference” case; this is a case of a person completing surgically that part of nature’s handiwork which apparently was left incomplete somewhere along the line.

By its language, the statute proscribes discrimination among employees because of their sex. When a transsexual completes his or her transition from one sexual identity to another, that person will have a sexual classification. Assuming that this plaintiff has now undergone her planned surgery, she is, presumably, female, at least for most social purposes.

This plaintiff alleges that she was discharged from employment while she was in the process of assuming her new sexual identity. Had the employer waited and discharged the plaintiff as a postsurgical female because she had changed her sex, I suggest that the discharge would have to be classified as one based upon sex. I fail to see any valid Title VII purpose to be served by holding that a discharge while an employee is in surgery, or a few days before surgery, is not as much a discharge by reason of sex as a discharge a few days after surgery. The result is the same, whenever the employer sends the discharge notice. Plaintiff alleges that she was fired for being (or becoming) female under circumstances that allegedly disturbed her fellow workers and therefore motivated her employer to terminate her employment.

It seems to me irrelevant under Title VII whether the plaintiff was born female or was born ambiguous and chose to become female. The relevant fact is that she was, on the day she was fired, a purported female. She says she was fired for having become female under controversial circumstances. The employer says these circumstances are disconcerting to other employees. That may or may not be true. Plaintiff says that how she became female is not her employer’s business. That may or may not be true. Those are questions that ought to be answered in court, in a trial; they should not be precluded by summary judgment or Rule 12 dismissal.

*665 If the plaintiff is, as the majority holds, claiming only that she was discharged for undertaking a course of medical treatment to achieve a future sex change and is not claiming that she was discharged for becoming a female, then she should be allowed to amend her pleading to conform to the evidence that ordinarily would be developed in pretrial discovery.

Because I believe the plaintiff is entitled to win or lose on her statutory claim, I would not discuss the alleged constitutional claim.

I would vacate the dismissal and remand for further proceedings.