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discrimination she suffered was based on her non-conforming appearance. Id. at 221. The
Second Circuit noted the faulty logic in viewing what is, in reality, a claim of
discrimination based on sexual orientation as a claim of sex stereotyping: 154 When utilized by an avowedly homosexual plaintiff, ... gender stereotyping claims can
easily present problems for an adjudicator. This is for the simple reason that stereotypical
notions about how men and women should behave will often necessarily blur into ideas
about heterosexuality and homosexuality. *764 Like other courts, we have therefore
recognized that a gender stereotyping claim should not be used to bootstrap protection for
sexual orientation into Title VII. Id. at 218 (internal quotation marks, citations, and
alteration omitted). Although Vickers has declined to reveal whether or not he is, in fact,
homosexual, the claim he presents displays precisely the kind of bootstrapping that the
Dawson court warned against.
This court's opinion in Smith v. City of Salem, 378 F.3d at 566, does not alter this
conclusion. The plaintiff in Smith, a lieutenant in the Salem Fire Department, was a
transsexual undergoing a physical transformation from male to female. Id. at 568. The
treatment resulted in a display of " 'a more feminine appearance on a full-time basis.' " Id.
The plaintiff was suspended based, at least in part, on co-workers' expressed concerns
that "his appearance and mannerisms were not 'masculine enough.' " Id. In Smith, the
court made explicit that a plaintiff cannot be denied coverage under Title VII for sex
discrimination merely based on a classification with a group that is not entitled to
coverage. See id. at 575 ("Sex stereotyping based on a person's gender non-conforming
behavior is impermissible discrimination, irrespective of the cause of that behavior; a
label, such as 'transsexual,' is not fatal to a sex discrimination claim where the victim has
suffered discrimination because of his or her gender non-conformity."). The point is welltaken;...
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- Spring '08