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August 20, 2006

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.

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Comments

especially since gender is an artificial construct to begin with.

I thought we were past the point where people defended the right to discriminate against boys who act like girls and girls who act like boys.

I'd also really, really like to see a conversation between Ms. Black and the any number of religious sects which are currently privileged by the ruling party which believe that she's illegitimately assuming a gender-related role she's not entitled to by being a lawyer.

Interesting how the law may conform to perceptions of reality rather than reality.

No one has any idea what exactly, in a biological sense, all the steps are between fusing of an ovum and an X or Y chromosome bearing spermatozoa and the development of an adult of one sex or another with typical secondary sexual characteristics, sexual preferences and behaviors. If you do know, go ahead and buy a new house because you’ve got some Nobel prize dough coming.

Sexual differentiation in nature is anything but black and white. Just before reading this I happened to be reading an article about sex chromosomes in duckbilled platypuses. Turns out they’ve got ten of them. We’ve got two: X and Y, with girls getting XX and boys getting XY. This is typical of mammals where the X chromosome is large and “complete” and the Y chromosome is a runty little thing. Birds are the reverse, with the females having the non homologous pair (called a ZW system to distinguish it from the mammalian XY system). This stuff is available in any basic genetics text, which will also describe interesting variants: Klinefelter's and Turner’s syndromes, freemartins, insect/lepidopteran/hymenopteran systems, parthenogenic lizards, etc. One of the interesting things about the platypus system is that the genes that we do know that help steer sexual differentiation in mammals and birds are not located where you would expect them. They’re not quite bird and not quite mammal (as one might expect in a platypus), and all a puzzle. I don’t know if anyone has found an intersex platypus, but should you, there are some folks that would be very, very interested. See: Frank Grützner et al.. In the platypus a meiotic chain of ten sex chromosomes shares genes with the bird Z and mammal X chromosomes. December 2004. Letters to Nature. Nature Vol. 423, No. 16 913-917.

Here’s a site with some pictures of more gender craziness, “intersex” gynandromorph butterflies, courtesy of a commenter at Pharyngula: www.daltonstate.edu/galeps/Gynandromorphs.htm.

I don't see how gender is any more an "artificial construct" than are, say, human rights, or law itself. Or what this purported artificiality has to do with its status as a legal object.

cfrost, thanks for the references. you might like Anne Fausto-Sterling, Sexing the Body (NY: Basic Books, 2000), for lots of material on human intersexuality. AFS argues (convincingly IMO) that humanity can't be parsed into two sexes, either by anatomy, chromosomes, hormones, or brain structures. Someone placed into one sex by one criterion can easily end up in the other by another criterion, or in a number of intersex categories. She also has great historical analyses of how so-called sex hormones got their non-parallel names (estrogen = makes estrus, but testoserone = makes testes), and, for that matter, how they got to be called "sex" hormones when they have many other functions. Great stuff too on the "penis-meter" used in determining the target sex prior to infant sex assignment surgery.

Thanks for this post Lindsay. The other thing that Nicole Black ignores in her annoying and irresponsible attempt at a wittily broad comparison involves a question of intentionality and expectation. Grounds for dismissal, I imagine, for the transgender worker would have something to do with creating a disruption in the workplace on account of dressing in such an unexpected way that your colleagues cannot concentrate on their work. But, there is a huge difference between 1) intentionally disrupting work by doing something for comic effect and 2) dressing in unexceptional clothing that happens to bear the relatively standard marks of a gender (or two) and unintentionally inciting a bigoted response. In either way, it is possible that the colleagues' expectations of what constitutes 'normal' behavior have been disrupted, but the responsibility for that disruption lies in different places. Of course, philosophically speaking intention is a tricky concept. Ironically, Nicole Black's comparison makes it slightly easier to sort out.

I've always found the 'call me by my chosen' gender, as opposed to what biological parts you were born with, mildly annoying, even self-involved. If gender is fluid, then insisting on a certain pronoun seems pedantic. And if men and women are supposed to be equal, it seems like the transgender doth protest too much... but thats my personal opinion...bias... honestly having to live with the whole mixed-up gender identity issue.. Well, even though my first reaction is somewhat negative, I'm not going to give someone shit for it.

That said, I do 'understand', not necessarily accept, why some do, identity is a very personal thing, transgenders disrupt that, whether they want to or not. It goes right to the core of who we are. Regardless, I'm glad...s/he won the case. Seems fair.

And, M. Adams, I think you hit the nail on the.. uhm... hitting end.

C'mon now. Read my entire post, people. I'm all for protecting transgendered individuals from discrimination based upon their transgendered status.

But, I think the courts are stretching too much when they include transgendered status within the defintion of "sex" (as in gender, not the act.)

To avoid this logical leap, I think the best solution is to amend the NYS Human Rights Law to specifically include transgendered status. I don't think that's unlikely to occur, either.

For more information on this issue see this excellent 2005 post from another blog that I came across while researching this issue more fully prior to commenting on this blog: http://ec.gayalliance.org/articles/000987.shtml

For more info. re: the legislation and re: the status of the proposed law to rpotect transgendered individuals at this point, see this letter from Feb.: http://www.nycla.org/siteFiles/Publications/Publications217_0.pdf

In my mind, the legal issue boils down to the definition of "sex" and whether the plaintiff in this case was discriminated against (assuming that the termination occured due to her transgendered status as opposed to another legitimate job-related failure) based upon her gender, as opposed to her behavior.

She wasn't (allegedly) discriminated against because of her gender, but because of how she chose to express herself. The clown suit example was just an extreme that occurred to me off the cuff as I typed my post on my blog.

It could just as easily been someone who chose to attend work dressed in only one fluorescent color from head to toe. That would be equally disruptive, and the employer could arguably request a different outfit on that basis without triggering one of the classes protected by the Human Rights Law. And if the employee refused, termnation on that basis might be justified and not in violation of any anti-discriminations laws.

Nicole, if no one in the work place dresses in clown outfits or outrageously colored clothing, then doing so is abnormal and thus could be disruptive if someone does it.

The disruptive part, in this case however, is not the clothing, but that a 'certain person' chose to wear that clothing and asked to be addressed by that pronoun. Clothing, that on another person would not bear any notice. Gender is the reason it was an issue, not fashion sense.

As far as I know, the line cook wasn't doing anything out of the ordinary for a male line cook. One of his co-workers found his old yearbook:

Eric Buffong, who worked as a cook at Tarrytown’s Castle on the Hudson restaurant, encountered difficulties at work after a co-worker brought in a high school yearbook depicting Buffong as a woman, Erica Buffong. Buffong claimed that four months of harassment by co-workers and reduction in his working hours culminated in his discriminatory discharge in May 2005.

If Eric presented himself normally and professionally for a male line cook, then it's obvious gender discrimination to fire him because he's physically female.

Nicole Black may be right insofar as that ultimately protection of people not considered "normal" will have to be legally codified. Of course I'm not really sure what a line cook is. Even if he/she were wearing clown shoes though, what does that have to do with chopping onions? I just want the cooks to wash their hands and not sneeze on the food; after that, who cares?

"The disruptive part, in this case however, is not the clothing, but that a 'certain person' chose to wear that clothing and asked to be addressed by that pronoun. Clothing, that on another person would not bear any notice."

Well, let's turn the tables on this logic.

Let's say that Abraham, a Catholic, decided to wear a yarmulke to work, grew a beard and dressed as an Hasidic Jew and asked everyone to call him "Avrahim", even though he still maintained that he was Catholic.

In that scenario, wherein a Catholic dressed outwardly as a Jew, but still professed to be a Catholic, and alleged that he was fired due to his choices, would you still say that that was an illegal termination based upon religous discrimination?

I don't think it would be. He wasn't terminated for being a Jew (which he wasn't) or a Catholic. In that scenario, he was fired based upon strange behavior that was disruptive to the workplace and thus the termination was not illegal, since it wasn't based upon one of the protected categories under the Human Rights Law.

I think that the original case with the trangendered plaintiff is analogous to this example.

In the case of the Catholic who dresses like an Hasidic Jew would you still say:

"The disruptive part, in this case however, is not the clothing, but that a 'certain person' chose to wear that clothing and asked to be addressed by that (name). Clothing, that on another person would not bear any notice."

I don't think that you would, since it's not logical. That clothing wouldn't bear notice on a Jewish person, but certainly bears notice on one who admits that he's Catholic. Nevertheless, that doesn't amount to religious discrimination.

Likewise, the situation wherein a woman dresses like a man doesn't amount to gender discrimination.

The clown suit example was just an extreme that occurred to me off the cuff as I typed my post on my blog.

Well, given the kind of shit that transgendered people put up with on a daily basis, it was a grossly offensive and stupid "extreme." You should be ashamed of yourself.

In order to be analogous to Buffong's case, the scenario would have to be different. The guy would have had to be hired as "Avrahim", worn a yarmulke on the job, and have been accepted as an Orthodox Jew, only to have his co-workers discover pictures of his First Communion. If his outwardly Jewish behavior wasn't a problem to begin with, the fact that his co-workers happened to find out about his unusual theological orientation is irrelevant.

The judge wisely construed this case as one of ordinary sex discrimination. It doesn't matter whether you believe in two genders, or six. If someone is dressing and acting professionally there shouldn't be a double standard.

Sure, we can quibble about legal texts (e.g., whether transgender should have explicit protected status) but what is the basic intent of the statute? What someone may or may not have between their legs has no bearing whatsoever on their inherent job performance, even considered from the point of view of "disrupting" coworkers, especially if it stays covered while at work.

Nicole Black says

I think the courts are stretching too much when they include transgendered status within the defintion of "sex" (as in gender, not the act.)

But this is a tautology if she is sincere (as I am sure she is) in generally defending the rights of transexuals. If "sex" means "male or female", then we are excluding anyone else from protection under that category. If it means "sexual status" (which is I believe the intent) then how is either male or female more probative than transexual as a type of the category? Are homosexuals male or female, for example?

Uncle Kvetch--My audience is typically a bunch of other lawyers. And, lawyers are prone to use extreme examples to make a point.

And, it's a liberal blog and I blog about issues affecting homosexuals (and now, transgendered individuals) far more than the vast majority of law blogs. And I come down on their side 9 times out of 10.

That I disagreed with a particular *legal* argument in this case is not indicative of reprehensible behavior on my part. I've got nothing to be ashamed of.

As a legal matter, I don't see how the judge is being stretching the definition of gender discrimination at all.

You seem to be thinking of transgender as something analogous to a disability or an elaborate religious observance that employers might be required to make special allowances for. That's the wrong way to think about it.

The case in question involved someone who was "passing" quite nicely as a man until he got outed. Before, he was a regular guy, as far as his employer was concerned. Presumably, he adhered to the dress code for male employees, used the appropriate washroom, filled out his personnel forms consistently, and generally observed the social norms customary for male employees.

He wasn't asserting any special right to assert his atypical gender identity. I.e., he wasn't saying that he belonged to a third gender that deserved legal recognition on par with male and female. He wasn't saying that in virtue of his transgenderedness he had the right to dress or act eccentrically. The judge explicitly said that she thought there were only two genders, but that biological females should have the same right to adopt a male gender role as biological males.

LB--My legal interpretation is based upon my understanding of NY law and precednet as it stands now. This is a legal issue, and has not yet been decided by the appellate courts. The lower courts have addressed this issue and come to different *legal* conclusions. This particular judge's interpretation of the applicable statute and legal precedent is just one of those conclusions.

Here's a good description of the current status of this issue in NY, from the first web site (Genesee Valley Gay Alliance's web site) that I cited in my first comment above:

"Isn’t discrimination based on gender variance already prohibited by the law
No. Neither federal nor state statutes specifically ban discrimination based on gender identity and expression in employment, housing, public accommodations, credit or education. While at least two New York State courts have found local or state prohibitions on “sex,” “gender,” or “disability,” discrimination to apply to transgender people, those precedents do not necessarily apply to the full range of gender variance and are not binding on the entire state. Because sexual orientation and gender identity and expression are different, courts generally have not interpreted sexual orientation non-discrimination laws to include discrimination against transgender people."

I support the passage of the GENDA proposal, as explained on that website, for the reasons set forth on the website. But, I still believe that gener variance is *not* the same as gender.

Gender variance is a behavior. Gender is a biological state. They are not the same thing.

People should not be discriminated against in the workplace based either upon their gender or their transgendered status.

But, the law as written leaves that loophole open and should be amended to close it.

I read Nicole Black's first response and thought, "'Clown' is a gender? Well, that would explain a lot."

But I have yet to see how wearing one set of clothes or another -- as long as they didn't flap around and get into the fryer -- would be inherently disruptive, even if I were to assume the average restaurant kitchen were filled with pious and staid refugees from the 1950s in Kansas. A single fluorescent color head to toe... (shrug) It's just going to get covered with grease and tomato sauce anyway.

Come to think of it, just how differently does the average male line cook dress from the average female line cook?

Now, whether it's a sex-discrimination question is slightly different, but given the situation (and IANAL of course), it looks to me as if someone'e trying to tell someone how to dress because of the second person's sex -- and that the suddenly disruptive costume was just hunky-dory until something new was discovered about Second Person, and something that not only had no bearing on job performance but was, reasonably, not something anyone else at work would have cause to know. Therefore the "disturbance" is pretty much in the mind of the disturbed, not the "disturber."

And I'm still trying to untangle that example about the Catholic guy in a yarmulke. Isn't everybody naming their kid "Joshua" these days?

That I disagreed with a particular *legal* argument in this case is not indicative of reprehensible behavior on my part. I've got nothing to be ashamed of.

I was not referring to your disagreement with the argument in question, nor with your counterargument. I was referring to the "clown suit" analogy. It was hugely insulting to transgender people and what they have to deal with. And your wonderfully enlightened "liberal" brain can't even grasp why.

Uncle--In my original post, I compared the *harassment* that one would encounter in both situations. I did not liken the person in the clown suit with a transgendered individual. I stated:

"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?"

And, I certainly cannot claim to understand transgendered people or what they encounter on a daily basis. I'm not transgendered. And, for that reason, it's not an issue that gets me all riled up.

But it is one that I found to be interesting and chose to highlight on my legal blog. It's unfortunate that I unintentionally insulted some people.

Would you rather that the issue not be raised in a forum that is not even remotely devoted to gay and transgendered issues at all--that my predominantly legal audience (some quite conservative) not be exposed to these issues?

Perhaps in the future I'll avoid voicing my disagreement with the gay marriage decisions and will avoid advocating for a change in the human rights law to specifically include transgendered people on my legal blog. At least that way, I'll avoid unintentionally offending others.

Or not.

That we even have to have the courts of this country "give" equality rights to gay and transgendered individuals is sad. But considering that this is the same country that counted black slaves as 3/5 of a person, it should not be surprising.

The problem is that too many people in this country care too much about what other people do. They try the lame "morality" argument against homosexuality, like it is some plague that will spread amoung the masses. Well to the religious zealots I say this: I have a gay uncle and consider all of his friends to be my friends, as do my friends and so on and so forth...and shockingly I am not gay, my wife is not gay, my son is not gay (although his godfather is! The church never liked that!). It is a shame that the same narrow-mindedness of years gone by still plagues us today.

For some reason, nobody here talks about the most obvious analogy to this - racial passing. It's considered racist to discriminate against black people who pass for white; hence it should be considered sexist to discriminate against men who pass for women and women who pass for men.

Alon--That's a great analogy--one that I hadn't thought of. And, it might very well change my position on this issue. But, only in this situation:

Person A is black or a woman
Person A manages to be perceived to be white or a man
Person A's true identity is discovered
Person A is fired *because* Person A is black or a woman.

Thus, Person A is fired because the employer is either a racist or sexist and didn't want a black person or woman working for him/her. In other words, Person A was not fired because s/he engaged in deceit or disruptive behavior, but rather because his/her original/true state (black or a woman) was undesirable. In that case, the termination would be based on discriminatory animus and thus illegal.

However, if the termination occurred because the employer wasn't accepting of the behavior of hiding one's race or gender, then I don't think that it's illegal under the NY Human Rights Law as it now exists, since the termination was not based upon discrimination against Person A for being a member of a protected class.

Now, if we can only get sex workers and homeless folks protected we'd really be on to something...

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