I remember a few months back one of the commenters on this site, who's a transwoman, was exasperated that all trans activists talk about is "the bathroom issue". I'm certainly not in a position to judge these activists, but it seems to me that that sort of talk would be justified, especially in light of this tenth circuit court decision.
The court decided that it was OK for the Utah Transit Authority to fire Krystal Etsitty, a transwoman, out of fear that she'd use the wrong bathroom. Seriously. Her lawsuit was based on Title VII of the Civil Rights Act, saying that she was fired due to her sex (transsexual) and because she failed to meet the stereotypes of "male". The district court ruled against her, and the circuit court upheld that decision:
Because this court concludes transsexuals are not a protected class under Title VII and because Etsitty has failed to raise a genuine issue of material fact as to whether UTA’s asserted non-discriminatory reason for her termination is pretextual, this court concludes the district court properly granted summary judgment on Etsitty’s Title VII claims.
She can't claim sex discrimination under Title VII because she wasn't born with female genitalia, as the decision goes on to say, and transsexuals are not considered a protected class under that act. This provides all the more reason to make sure that all anti-discrimination legislation, not just the anemic ENDA, is inclusive of gender identity.
But a few specific facts of this case are particularly annoying, and that's after the jump.
Etsitty was hired, as the court records indicate, four years after she began the process of physically transitioning. She was still presenting herself as male, and a few weeks after being hired, she went to her supervisor to tell him that she'd be changing her appearance. The supervisor was OK with that - it was a member of the upper management who had a problem:
Shirley, the operations manager of the UTA division where Etsitty worked, heard a rumor that there was a male operator who was wearing makeup.
That's right, it was a rumor that made her start to investigate. And she sat down and talked with Etsitty, asked her about the state of her genitalia, became worried that she would switch back and forth between male and female restrooms then put her on leave and fired her.
Oh, but after having that conversation where she asked Etsitty about her genitalia, Shirley suddenly became a prude again:
Shirley also testified she did not believe it was appropriate to inquire into whether people along UTA routes would be offended if a transsexual with male genitalia were to use the female restrooms.
And to add insult to injury, the reason Etsitty has not fully transitioned physically is because of the cost of surgery. She's a bus driver, after all, and one who just lost her job. So in court, guess what her manager says:
On the record of termination, Shirley indicated Etsitty would be eligible for rehire after completing sex reassignment surgery.
Are these people trying to be ironic? Were they trying to play a joke on Etsitty that went terribly wrong?
I'm not going to blame the court for their decision - it seems to be the place where American case law is. (If anyone knows of a reason to believe otherwise, please elaborate in the comments.) But this just goes to show how much law needs to be changed.
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2 Comments
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What surprises me is UTA's handling of the issue. By inquiring about the make up they set themselves up to end up in court over this issue. UTA could have saved them and the tax payers money simply by not saying anything and lying in wait until they could just let her go with no explanation. Then the burden of proof that Etsity was fired for being TS would be so hard to prove that the case would have never ended up in court in the first place.
I know people win these cases, as a matter of fact i know of 2 such cases where TS have won discrimination suites. A company has to make so many mistakes that betray their reason for termination before it becomes possible to sue and stand a chance of winning. i might add that such cases are rare though.
There does need to be some protection for folks in transition. Most cities i have lived in and many i have visited have a policy that is straightforward if you present as female that is the restroom you use if you present as male that is the restroom you use.
Arguably work is a much more intimate environment. I am sure that was in the back of the mind of the court when it made it's ruling. An employer does have the responsibility to provide a workplace that is not hostile to his or her workers. I have been writing about this in the newsletter we distribute to paid members at Neutral Corner the support and social group i am president of.
For most of us this is some kind of twisted right of passage. Until there are enough single use restrooms to go around this will be a problem unfortunately.
For those of us who have had to transition and were TS this is not a lifestyle choice or even in many cases some mental illness that can only be fixed with a knife. Many of us view our unique condition as a birth defect and when you consider most of us have life long gender and sex confect issues this is not a stretch. Just because there is no solid evidence yet to prove this does not mean such a class of birth defects do not exist.
This birth defect even has a name
Harry Benjamin Syndrome
Like it or not the mainstream is more sympathetic to the birth defect paradigm then ether the lifestyle choice or the mental illness paradigms.
Given the circumstances TS have to deal with before sex reassignment and legal status for their newly aligned sex and gender one must use every advantage one can find.
Take Care
Sue
Sue Robins | September 21, 2007 4:59 PM
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Y'know, in a sadly twisted kind of way, this decision is actually a good thing for two reasons:
1. It (presumably) effectively ends the long debate about whether or not transsexuals are protected by Title VII and, if, therefore (by the logic of some) it's necessary to include gender identity and expression in ENDA.
2. It brings the issue of transgender employment rights and our inclusion in ENDA, back into the news cycle, hopefully for at least a few weeks. We may not be the lead story on the evening news, but at least we'll get some coverage in community media and maybe even few mentions in the mainstream. That'll make it a lot more likely that sooner or later more politicians will feel compelled to at least publicly state their positions on our rights (Hillary, are you listening?).
It's sad, it's wrong, it's an injustice to Ms. Etsitty, but at least it'll hopefully help to solidify support and help to set the stage for a more positive future for transgender workers.
Rebecca Juro | September 21, 2007 6:01 PM
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