Transgendered people protected under New York human rights law
A Supreme Court judge in Westchester county recently ruled that transgendered people are a protected class under New York State human rights Law--one more reason I'm proud to live in the Empire State.
The test case concerned a line cook whose coworkers decided that their self-described male colleague was "really" a woman, apparently because they learned that he had female-typical genitals. The line cook was subjected to four months of harassment and finally terminated for being transgendered.
He found the courage to take his former employer to court for violating New York State's human rights law, which prohibits discrimination on the basis of gender. At trial, the restaurant's lawyers argued that transgendered people were intentionally excluded from State human rights law prohibiting discrimination on the basis of gender.
The judge ruled that since transgendered people are either male or female, they are covered by the State human rights law, which, unlike New York City's human rights law, doesn't specifically designate transgender as a protected class.
I don't agree that everyone is necessarily either male or female, but I'm willing to consider the judge's reasoning as an application of the principle of charity towards those who dispute the reality of genders beyond the standard binary. If the law recognizes more than two genders, it seems obvious that no gender should be privileged above any other. On the other hand, if there are only two, it seems equally obvious that neither gender should have the exclusive right act characteristically male (or female).
NY law blogger Nicole Black (linked to above) writes:
This is an interesting decision and one that I expect will be appealed. I wonder if the appellate courts will overturn it?
And, it raises an interesting philosophical issue. As it stands now, the Human Rights Law protects one from discrimination based upon one's gender. But, is the alleged discrimination that occurred in this case based upon the plaintiff's gender or the fact that the plaintiff chose to dress in a way that was not consistent with her gender? How different is the alleged harassment in this case from that that one would encounter if one chose to wear a clown suit at all times?
Nicole's comparison is blatantly unfair. There's no parallel between wearing a clown suit and assuming an public gender identity that's different from what might be predicted based the shape of your private parts. Assuming the line cook looked and acted acceptably for a line cook, it's gender discrimination to argue that genital shape dictated acceptable on-the-job behavior. If it's okay for a person with a penis to look and act a certain way on the job, it should be okay for a person with a vagina to assume the same demeanor and outward appearance (and vice versa). The law shouldn't have to take a position on whether there are more than two genders in order to protect people who want to assume an atypical gender identity.