Define That Term #134
Comedic Break

Are Transgendered Individuals a Protected Class Under the NY Human Rights Law?

UPDATE:  If this topic interests you, there's a fairly lively discussion regarding this decision in the comments section of this post over at the Majikthise blog.

According to Judge Lefkowitz, a Supreme Court judge in Westchester County, the answer is "yes".  As reported in this article, the issue was decided in the case of Buffong v. Castle on the Hudson:

A state court has held in an apparent case of first impression that New York state's Human Rights Law protects transgendered individuals.

"Transgendered persons are either male or female," Westchester Supreme Court Justice Joan B. Lefkowitz held in Buffong v. Castle on the Hudson, 11634/05. "Case law supports the view that a transgendered person states a claim pursuant to New York State's Human Rights Law on the ground that the word 'sex' in the statute covers transsexuals"...

While at least one federal decision has held that the state's Human Rights Law, which does not specifically refer to transgendered individuals, nonetheless applies to them — Rentos v. Oce-Office Systems, 1996 WL 737215 — this case marks the first time a state court has done so, according to the decision and papers submitted by both sides.

In this case, the plaintiff worked as a line cook at a restaurant and it was eventually discovered by his co-workers that "he" was actually "she" in wolf's clothing.  In his lawsuit, he alleged that after 4 months of harassment by his co-workers he was terminated based upon his status as a transgendered individual.

The defense argued that transgendered individuals were intentionally excluded from the Human Rights Law, while the plaintiffs argued that they were not necessarily excluded simply by virtue of that fact.  In reaching its decision the Court stated: 

Unlike the New York City Human Rights Law which specifically includes transgendered persons . . . the New York State Legislature has not adopted proposed legislation that would accomplish that fact...

Nonetheless, prior to amendments to the New York City Code to specify transgendered persons as included persons, the courts had held that the prior definition, similar to the State definition . . . did cover transgendered persons..."

This Court agrees that plaintiff's claim falls within the liberal interpretation to be accorded to the New York State Human Rights Law.

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?

Personally, I think that transsexuals and transgendered people should be protected from discriminatory harassment, etc. based upon their status.  But, I'm not sure that I buy the rather liberal interpretation that the courts are applying to the protected class based upon one's "sex." But, then again, I haven't read the line of cases that have lead up to this conclusion. Nevertheless, the best fix would be to amend the Human Rights Law in order to avoid this logical leap. 


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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:

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.:

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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