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August 18, 2006


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The issue you raise as being philosophical is far more than that. I see it as the epicenter of the legal issue. Transsexualness (is that a word?) is not directly a sexual issue so much as one involving behavior. Surely an employer can fire based on disruptive behavior without being liable under a state human rights law.

Lindsay Beyerstein

Nicole, thanks for an interesting and informative post.

I think the judge was right on. Even if take the strict view that there are exactly two genders, it should be clear that no one gender has the exclusive right to act manly or womanly. The line cook's boss and co-workers initially believed that he was a guy, but only later found out that he was "acutally" a she.

Maybe the phrasing is throwing me off, but it doesn't sound like the guy got thrown out for acting flamboyantly effeminate. It sounds like he got shitcanned because his co-workers found out that he had a vagina instead of a penis. If the line cook was acting acceptably for a line cook which it appears he was, then he was within his rights under state law.

Nicole Black

LB--Thanks for the interesting comment and reference on your own very interesting blog.

In response, as I stated in the comments at your blog:

I'm all for protecting transgendered individuals from discrimination based upon their transgendered status...

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...

Here's another example:

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 transgendered plaintiff is analogous to this example.

In my example, the clothing worn 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.

Alice Verheij

Well well.

Some of the postings here on transgendered are immensily distorted. The issue is gender dysphoric people here being regarded as people with specific deviations in behaviour from what's generally accepted as mainstream. More specifically it seems to be about dressing conform the gender identity of the person instead of the biological birth gender.
To be honest, what I read here as comparisons to the case is crap. The transgendered in this case behaved conform the gender IDENTITY he has. So this is about discrimination on the basis of gender identity, not behaviour, not sexuality or anything else.
Since when should there be an issue concerning the outing of a specific identity resulting in harrasment and worse? It's a good thing the judge in case ruled in favour of the transgendered person. But it's horrific to read the ignorent explanation of the judge.
I do not live in NY or anywhere else in the US but it's surprising to see such a lack of knowledge within the court about (trans)gender(ed) identity. So the outcome is ok, but the motivation is shocking to me as it will be shocking to all transgendered people.
Why should anyone living his or her's gender identity have to be allowed to be harrased? Even stronger, even if the person would 'distort' does that allow harrasment? Come on! There has never been a legal basis for that and that should have been the judges ruling. This is about basic human rights and even legally international law supercedes on US or NYS or NYC law on this.
Allowing harrasment of anyone would have been a legal flaw of unmeasurable proportions.

Kind regards,
Alice Verheij
The Hague, Netherlands

Alice Verheij

Oh, and Lindsay why do you write about 'her' and 'she'instead of 'him'.
The transgendered person in this case referred to himself and lived as a male.
So using 'her' is offensive as you deny the gender identity of the person in question. Actually your behaviour in this is much thesame as the behaviour of the accused.

So please rethink and rephrase...

Alice Verheij

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