CROSSING LINES – TRANSGENDER ACCOMMODATIONS
by Peter S. Saucier
Court and administrative wrangling with permutations of the law of sex and disability discrimination is creating interesting morning reading for employment lawyers these days. Before 1998, the sex harassment and discrimination universe was easy to understand. Essentially, a man could not harass or discriminate against a woman, and a woman could not harass or discriminate against a man, because of sex. Then, the Supreme Court ruled in 1998, in certain limited circumstances, same sex harassment (and presumably discrimination) because of sex is prohibited by law.
Still, sex discrimination and harassment had to be because of sex, and such nether world "conditions" as transgenderism and transexualism are not a "sex." The Americans with Disabilities Act also specifically excluded them as covered disabilities under federal law. Now, some states are witnessing the development of "rights" in the cross-sex area that were not readily anticipated.
A recent decision by a federal judge in Minnesota protected the "right" of a transgendered teacher to use the women's room at the school despite the protest of at least one fellow employee. David Nielsen began work as a teacher in the Minneapolis School District. Later, Mr. Nielsen "became" Debra Davis, and started using the women's room. Carla Cruzan (apparently a lifelong woman), objected to finding the new Ms. Davis in the women's room stall, so she brought an action for sex and religion discrimination.
The judge dismissed Cruzan's suit, deciding that she could not state a case of discrimination. In the course of rendering his decision, Senior Judge David Doty, made the fascinating observation that "there are several other rest rooms, including a unisex rest room, available to [Cruzan] where [she] would not encounter Davis." One cannot help but wonder why the unisex rest room was not perfectly suited for Debra Davis.
Meanwhile, on the East Coast, the Massachusetts Commission Against Discrimination was busy creating a different approach to the same result. The Massachusetts legislature elected to deem sexual preference a protected class. In the process, they limited the protection to homosexuals, heterosexuals, and bisexuals – not transexuals or transgenders. Fearlessly, the Commission chose to act more "wisely" than the legislature. Likening sex changes to religious conversions ( with apologies to Dave Barry, I am not making this up), the Commission decided that transexualism is protected as sex discrimination. In the face of universal opinion to the contrary in all federal courts, the Commission sniffed, "these cases are utterly unsatisfying to us."
In a second case, the same Commission decided that Raymond Jette, who had been diagnosed with transexuality and gender dysphoria, was entitled to an affirmative accommodation by his/her employer. In particular, Raymond wanted to be treated as Rachel, and his employer, a mini mart, was compelled to oblige the request under the state law against disability discrimination. The reasoning here is that because the legislature did not specifically exclude transexuality as a covered disability, it was covered. [Note to philosophy students: do not use this reasoning on your logic final exam.]
Massachusetts and Minnesota may be starting a trend that will enhance my fascination with each day's in-box of new developments in labor and employment law. Following the evolution of workplace protection for new sexes is not a boring pastime.
November 2001
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