Marti Abernathey

Chris, I'll Say It Again: You're Wrong

Filed By Marti Abernathey | September 22, 2007 10:05 AM | comments

Filed in: The Movement, Transgender & Intersex
Tags: Chris Crain, ENDA, transgender inclusion

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With a vote coming soon on the Employment Non-Discrimination Act, I'd like to revisit something Chris Crain said a while back in his post "A trans activist tees off on ENDA" that was in reference to my post "You Can Still Fire Me". At his blog he said:

"The EEOC says exactly what I said:'existing federal civil rights laws have already been interpreted by SOME JUDGES to protect trans workers.' Is it every judge? No. Would adding 'gender identity' to ENDA ensure protection? Absolutely. But my point was that, under current case law, at least SOME judges interpret Title VII to protect transgender people."

But what do the courts say? On September 20, 2007 the United States Court of Appeals - Tenth Circuit ruled on Etsitty v. Utah Transit Authority. They said:

"Etsitty may not claim protection under Title VII based upon her transsexuality per se. Rather, Etsitty's claim must rest entirely on the Price Waterhouse theory of protection as a man who fails to conform to sex stereotypes. "

Chris argues that:

"But my point was that, under current case law, at least SOME judges interpret Title VII to protect transgender people."

But the court clearly states this is not so:

"Although this court has not previously considered whether transsexuals are protected class under Title VII, other circuits to specifically address the issue ave consistently held they are not. See Ulane v. E. Airlines, Inc., 742 F.2d 1081, 084 (7th Cir. 1984); Sommers v. Budget Mktg., Inc., 667 F.2d 748, 749-50 (8th ir. 1982); Holloway v. Arthur Andersen & Co., 566 F.2d 659, 662-63 (9th Cir. 977). In Ulane, the Seventh Circuit explained that the definition of sex should be given its 'common and traditional interpretation' for purposes of interpreting Title VII. 742 F.2d at 1086. Based on this traditional definition, the court held the statute's prohibition on sex discrimination means only that it is 'unlawful to discriminate against women because they are women and men because they are men.' Id. at 1085. Because the plaintiff in Ulane could show only that she was discriminated against as a transsexual, rather than as a woman or a man, the court concluded Title VII could provide no protection."

If this was simply Chris Crain's feeling alone, I'd let it go. I don't expect him to admit he's wrong. But it's important to point this out because other people share his views about excluding transgender people in ENDA.


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Marti-

I agree with you completely. Crain's argument is ridiculously weak to begin with. His stance is to say that "some" judges "may" interpret existing laws to include trans people, so that's good enough? How delusional. The odds of a judge reinterpreting existing law to include trans protections are extremely thin. Those are not odds I would care to gamble with. Great post!

I actually sent the link of Alex's original post on the topic to Crain yesterday and expressed my interest in reading his response. I also invited him back on my show for second go-round.

It'll be interesting to see if or how he will respond.

So, is Chris' argument that we should not call for the passage of a trans-inclusive ENDA in Congress?? If we know discrimination based on gender identity as well as sexual orientation occurs (and we do, from the numerous lawsuits) why would we not try to pass a bill addressing both issues?

"So, is Chris' argument that we should not call for the passage of a trans-inclusive ENDA in Congress?? If we know discrimination based on gender identity as well as sexual orientation occurs (and we do, from the numerous lawsuits) why would we not try to pass a bill addressing both issues"

He thinks gays and lesbians have worked too hard to let a chance pass of the legislation passing without T.