## Facts

- Krystal S. Etsitty, a transgender woman, was born male, lived and presented as a woman, took female hormones, and had not undergone genital surgery at the time of the events.
- Utah Transit Authority (UTA) hired Etsitty as a bus operator; she completed training and worked routes as an “extra-board” operator who filled in across the system.
- While employed, Etsitty used a female name and wore women’s clothing at work; UTA’s records initially listed her as male.
- Etsitty informed a supervisor that she was transitioning and would use women’s restrooms along her routes because she lived as a woman.
- UTA managers, including supervisor Betty Shirley, expressed concern about which public restrooms Etsitty would use while on route and about potential complaints and liability.
- UTA placed Etsitty on administrative leave and then terminated her; the stated reason related to restroom-use liability concerns rather than job performance.
- Etsitty sued under Title VII for sex discrimination and under 42 U.S.C. § 1983 for denial of equal protection; the district court granted summary judgment to defendants.

## Issues

1. Whether termination based on an employee’s transgender status constitutes discrimination “because of sex” under Title VII.
2. Whether Etsitty produced sufficient evidence of actionable sex stereotyping under *Price Waterhouse v. Hopkins*.
3. Whether UTA’s restroom-use liability concerns were a legitimate, nondiscriminatory reason for termination, and whether Etsitty showed pretext under *McDonnell Douglas*.
4. Whether the termination violated the Equal Protection Clause, including whether transgender status warranted heightened scrutiny.

## Decision

- The Tenth Circuit affirmed summary judgment for UTA and Shirley on all claims.
- The court held that, as interpreted in this circuit at the time, discrimination because a person is transgender (transsexual) was not discrimination “because of sex” under Title VII.
- Assuming arguendo that a *Price Waterhouse* sex-stereotyping theory could apply, the court found insufficient evidence that Etsitty was terminated for failure to conform to gender stereotypes.
- The court accepted UTA’s asserted restroom-use and potential-liability concerns as a legitimate, nondiscriminatory reason and held Etsitty did not show the explanation was pretext.
- The court rejected the § 1983 equal protection claim, concluding UTA’s action was rationally related to a legitimate governmental interest and transgender status was not treated as a suspect or quasi-suspect class for this analysis.

## Legal Principles

- Under then-existing circuit precedent, Title VII’s prohibition on discrimination “because of sex” was construed to address biological sex and not transgender status as a distinct category.
- Sex-stereotyping claims under *Price Waterhouse* require evidence that the adverse action was motivated by nonconformity with sex-based stereotypes, not merely by an employer’s response to transgender status.
- Under *McDonnell Douglas*, once an employer articulates a legitimate, nondiscriminatory reason, the plaintiff must produce evidence permitting a reasonable jury to find that reason unworthy of belief or that discrimination was the real motive.
- For equal protection claims challenging employment decisions by a public employer, absent heightened scrutiny the action is upheld if rationally related to a legitimate governmental interest.

## Conclusion

The Tenth Circuit upheld UTA’s termination decision, concluding that transgender status was not actionable as “sex” discrimination under Title VII in this circuit at the time, that the record did not support a sex-stereotyping theory, and that UTA’s restroom-related liability rationale defeated both the Title VII and equal protection claims at summary judgment.


Etsitty v. Utah Transit Auth., 502 F.3d 1215 (10th Cir. 2007)