Alito, J., dissenting
selection of modifiers, referents, or grammatical forms”).
While it is likely true that there have always been individuals who experience what is now termed “gender dysphoria,” i.e., “[d]iscomfort or distress related to an incongruence between an individual’s gender identity and the gender assigned at birth,”[1] the current understanding of the concept postdates the enactment of Title VII. Nothing resembling what is now called gender dysphoria appeared in either DSM–I (1952) or DSM–II (1968). It was not until 1980 that the APA, in DSM–III, recognized two main psychiatric diagnoses related to this condition, “Gender Identity Disorder of Childhood” and “Transsexualism” in adolescents and adults.[2] DSM–III, at 261–266.
The first widely publicized sex reassignment surgeries in the United States were not performed until 1966,[3] and the great majority of physicians surveyed in 1969 thought that an individual who sought sex reassignment surgery was either “‘severely neurotic’” or “‘psychotic.’”[4]
It defies belief to suggest that the public meaning of discrimination because of sex in 1964 encompassed discrimination on the basis of a concept that was essentially unknown to the public at that time.
D
1
The Court’s main excuse for entirely ignoring the social context in which Title VII was enacted is that the meaning of Title VII’s prohibition of discrimination because of sex is
- ↑ American Psychological Association, 49 Monitor on Psychology, at 32.
- ↑ See Drescher, supra, at 112.
- ↑ Buckley, A Changing of Sex by Surgery Begun at Johns Hopkins, N. Y. Times, Nov. 21, 1966, p. 1, col. 8; see also J. Meyerowitz, How Sex Changed 218–220 (2002).
- ↑ Drescher, supra, at 112 (quoting Green, Attitudes Toward Transsexualism and Sex-Reassignment Procedures, in Transsexualism and Sex Reassignment 241–242 (R. Green & J. Money eds. 1969)).
