Transsexuality Sex Discrimination

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Who are Transsexuals?

Transsexuals are people who believe that they have the wrong gender. In order to address this, many transsexuals will act like the “opposite” gender, including wearing the “other” gender’s clothing. In some rare cases, transsexuals may undergo sex reassignment surgery in order to become the other gender. Transsexuals may or may not be homosexual; sexual orientation does not always match gender identity.

Due to gender stereotypes, misperceptions about sexual orientation, and a general conception that gender is binary, transsexuals face significant discrimination. Like homosexuals, transsexuality is not directly protected by explicit statutes. However, unlike homosexuals, transsexuals are protected by “ordinary” gender discrimination laws.

In other words, the laws which protect against discrimination on the basis of gender also apply to transsexuals.

What Is Transsexuality Sex Discrimination?

In the facts of a recent federal lawsuit, a person applied for a position at the Library of Congress.  The staff there was very enthusiastic about the applicant: he had served in the Army as director of a distinguished group that targeted potential terrorists.  He had even briefed Vice President Dick Cheney on terrorist identification programs and operations.  In short, he was the perfect candidate for the job of Congressional Researcher.

However, at lunch with a Library of Congress official, the applicant informed the official that he would be changing into a woman (a transsexual) before starting work.  The next day, the official rejected the applicant, saying the position would not be a “good fit.”

What Are the Laws Which Protect Against Transsexuality Sex Discrimination?

Title VII of the Civil Rights Act makes it illegal for an employer to discriminate based on race, national origin, color, religion, or sex.  Sex discrimination covers discrimination based on pregnancy as well as sexual harassment.  In addition, the federal judge in the case referenced above ruled that sex discrimination includes discrimination based on a change in a person’s anatomical sex, i.e. transsexuality.

This ruling is consistent with the Civil Rights Act, in that it should make no difference for employment purposes whether a person is anatomically male or female, as long as he or she can perform the basic requirements of the job.

Do States Protect Against Transsexuality Sex Discrimination?

States may expand upon the Civil Rights Act, but are bound by it.  For example, some states have enacted laws protecting sexual orientation, gender identity, and even obesity.  California, District of Columbia, Hawaii, Illinois, Maine, Minnesota, New Mexico, Rhode Island, and Washington prohibit discrimination based on gender identity.  In those states that do not protect gender identity, therefore, a transgendered male could be fired for acting or dressing like a woman.  However, under federal law, she could not be fired if she had become an anatomical woman.

Can Transsexuals Cross Dress?

"Cross dress" means to wear clothing of the “opposite” gender. Courts will support transsexuals who cross dress. However, courts will only support cross dressing as long as opposition to cross dressing is about gender stereotyping rather than about being transsexual. Since transsexuals are not explicitly protected by federal law, all transsexual protection is based on gender discrimination.

Can Transsexuals Use Any Restroom They Want?

If the transsexual is serious about their condition, i.e. they wear clothes of the opposite gender, etc., many states will require that transsexuals choose one gender and limit themselves to the restroom of that gender.

Some public (and a few private) institutions will have unisex restrooms that either gender can use.

Do I Need a Lawyer?

A gender discrimination claim is difficult to pursue without a lawyer because of the specifics necessary to prove the intent to discriminate. Additionally, many states and the federal government have certain procedures that must be followed to file a gender or sex discrimination claim that can be quite confusing without an attorney.

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Last Modified: 04-08-2013 04:37 PM PDT

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