Dr. Jillian T. Weiss

Would It Kill You To Look Like A Man? Transgender Employees in Indiana

Filed By Dr. Jillian T. Weiss | January 25, 2009 4:00 PM | comments

Filed in: Living, Politics, Transgender & Intersex
Tags: Amber Creed, Creed v. Family Express, Diane Schroer, employment law, gender stereotypes, law, Price Waterhouse, Price Waterhouse v. Hopkins, Schroer, Schroer v. Billington, sex stereotyping, stereotype, transgender, transsexual, workforce, workplace protections

Judge Robert L. Miller, a Reagan appointee who sits on the federal district court for the Northern District of Indiana, has recently issued yet another curious decision in the case of Creed v. Family Express Corp. Amber Creed was fired from her job in 2005 because she is transgender. Judge Miller's first decision, in 2007, which I will call Creed I, was very curious indeed, creating a considerable amount of confusion about what precisely is protected under the federal employment discrimination law, Title VII of the Civil Rights Act of 1964. His second decision, which came out a few weeks ago (Creed II, 2009 WL 35237) is even more hopelessly befuddled. Curiouser and curiouser!, cried Alice. These decisions are a case study of why the proposed federal Employment Non-Discrimination Act should include protection for both sexual orientation and gender identity, for it demonstrates that the current federal law of employment discrimination is a patchwork welter that creates confusion for both employees and employers.

There is a considerable amount of debate as to whether, in protecting "gender identity" - one's self-identification as male or female - the law should also protect "gender expression" - one's expression of gender through clothing, styling and other behavioral and social characteristics. Judge Miller's decision in Creed I turned this debate on its head. He decreed that the federal sex discrimination protection extends to discrimination based on gender expression, but that discrimination based on gender identity is not. Under Judge Miller's rule, a crossdresser who makes no claims about sex would be covered, but a transsexual who claims to change their sex would not. In other words, sex discrimination covers a person whose sex is not implicated, but doesn't cover a person whose sex is implicated. Sheesh.

In Creed II, Judge Miller makes it even worse. He rules that an employer can't discriminate based on sex stereotypes, but it can rely on a dress code that enacts sex stereotypes. However, if the employer's reliance on the sex stereotypical dress code is a pretext for sex stereotyping, then that is forbidden. If the employee can show an intent to discriminate based on sex stereotyping, then the employer is guilty of sex discrimination. Nonetheless, any sex stereotypical remarks that the employer makes can't be used to show intent to discriminate based on sex stereotyping unless the remarks are proven to refer to an intent to discriminate based on sex stereotypes, and not an intent to apply the sex stereotypical dress code.

Is anyone else besides me confused?

The Silly Ulane Doctrine

Judge Miller shouldn't be blamed for all this, for his court is under the Seventh Circuit Court of Appeals, and he has to follow their crazy rules. The Seventh Circuit is the one which handed down the misguided legal doctrine in Ulane v. Eastern Airlines, a 1984 decision, which held that the federal employment law does not cover transsexuals because the discrimination against them isn't discrimination based on "sex," but on "changing sex." While the Ulane doctrine is technically only binding on lower federal courts in the Seventh Circuit (which covers Illinois, Indiana and Wisconsin), courts in many other circuits have relied on it as very persuasive.

The Ulane doctrine was recently blown out of the water by Judge James Robertson of the Federal District Court for the District of Columbia, writing in Schroer v. Billington. Judge Robertson reasoned that dismissal because of "changing religion" would obviously be prohibited under Title VII, and dismissal because of "changing sex" is equally prohibited. Ulane used the now discredited "Conan Doyle" argument - referring to Sherlock Holmes' deduction from the dog that didn't bark - to hold that the failure of Congress to mention transsexuals in the legislative history meant they had no employment protection. (This is doubly silly because there was no legislative history on the issue of sex discrimination whatsoever.) Ulane also ignored all of the evidence that the term "sex" is now well understood to include a gender component. (I have a law review article coming out in May on the history of the word "sex", documenting how its meaning has changed since its first usage in the 15th century, and demonstrating that its current meaning includes gender.)

The Creed Lawsuit

The lawsuit stems from a job that Ms. Creed had as a sales associate in 2005. She was hired as a male, and wore the polo shirt and slacks provided to all employees. Over the year, she sometimes wore clear nail polish and black mascara, trimmed her eyebrows, and, in the fall, wore her hair in a more feminine style. The company's HR Director met with her, and told her she could no longer present herself in a feminine manner at work. Ms. Creed told them that she was transgender and was going through the process of gender transition. When she refused to present herself in a more masculine way at work, she was terminated. Ms. Creed's letter of termination stated she was fired because she didn't comply with its dress and grooming code. Ms. Creed sued.

Ms. Creed's complaint alleged she was discharged because she didn't conform to sex stereotypes, a cause of action validated in 1989 by the U.S. Supreme Court in the case of Price-Waterhouse v. Hopkins. Many lower courts have recognized, expressly or impliedly, that the sex stereotyping lawsuit provides protection for transgender employees because transgender discrimination is based on stereotypes of male and female behavior. These courts include the First, Sixth and Ninth Circuits, as well as district courts in the Second, Third, Fifth, Seventh and D.C. Circuits. (If you want a list of cases, shoot me an email.) But not the Seventh Circuit, where the Ulane doctrine is the law of the land, and that's where Amber Creed, Family Express and Judge Miller met to discuss the situation.

The Motion to Dismiss - Creed I

The first decision by Judge Miller, in 2007, came after Family Express, the defendant, made a motion - in legal parlance, a request to the Judge - asking that the case be dismissed because of the Ulane doctrine. Procedurally, the motion to dismiss asks for dismissal on the grounds that even if every word of the complaint is true, it can not legally result in any relief for the plaintiff. It's a weak motion, for only the words of the complaint itself may be considered, and evidence outside the four corners of that document must be ignored by the judge. In addition, the plaintiff is given every benefit of the doubt, and the complaint must be assumed to be 100% true for the purposes of deciding the motion. The defendant who goes for the motion to dismiss has got to be pretty sure of themselves.

The Family Express lawyers probably figured that, in a Circuit where the law requires following the Ulane doctrine, a motion to dismiss was going to be a slam dunk. They probably figured they didn't need any evidence outside the complaint. They probably figured that even if every single word of the complaint were true, no judge in the Seventh Circuit was going to give a transgender employee the time of day.

In general, the motion to dismiss is a procedural device for a defendant in a hurry, who thinks it's a slam dunk, and who doesn't want to spend the months or years and thousands of dollars necessary to gather evidence for the much more potent motion - the dreaded motion for summary judgment. The motion for summary judgment is the machine gun of the law - it spits any and all relevant evidence, even hearsay affidavits, at the complainant, and the complainant has to block every single bullet with legal proof. If the motion for summary judgment is a machine gun, the motion to dismiss is a water gun. It only works on complaints so flawed that they are the equivalent of fictional Wicked Witches, who melt when water is poured upon them. Most lawyers are capable of writing a complaint that will withstand a simple motion to dismiss.

Judge Miller Gets It Mostly Wrong - Creed, Scene I

Despite plaintiff's lawyer's best efforts, however, Judge Miller decided that the Creed complaint was not waterproof, and ruled in favor of the employer, at least in part. He said that the sex stereotyping lawsuit only works if the person stereotyped isn't a transsexual. He said that the Price-Waterhouse opinion focused on the situation in which initiative, effort, and aggressiveness were rewarded with partnership for men, but the company then punished women who exhibited these "macho" traits. He showed his complete misunderstanding of the difference between sexual orientation and gender identity, saying that the Civil Rights Act forbids the disparate treatment of men and women by sex stereotypes, but that disparate treatment of a transsexual isn't a sex stereotype because it's a sexual orientation. "In other words," said Judge Miller, "Congress intended the term 'sex' to mean 'biological male or biological female,' and not one's sexuality or sexual orientation." Yeah, and he later says "'sex' means 'biological male or biological female,' and not one's 'sexual preference.'" To him, gay and transgender are the same thing. Ooh brudder.

Judge Miller dismissed the parts of the complaint alleging that Creed was discriminated against "on the basis of her transgender status." He said they failed to explicitly allege that her discharge was triggered by stereotypical perceptions of a particular gender. "Nothing in this allegation suggest Ms. Creed's discharge was triggered by Family Express' stereotypical perceptions of a particular gender, so an actionable sex discrimination claim based on this allegation is speculative." Umm...person hired as male discloses a transition to female, employer fires employee for same, and the judge wonders whether stereotypical perceptions played a role?

Judge Miller's Saving Grace

However, surprisingly, Judge Miller showed some backbone, standing up to the Seventh Circuit Court of Appeals and saying that he was going to let parts of the lawsuit go forward. He noted that two other counts of the complaint did explicitly allege stereotypical perceptions, and Judge Miller let them stand. This was the saving grace of the decision, though it left the law in a confused state. In so doing, Judge Miller held that if an employee uses the words "gender identity," "gender dysphoria," or anything other than the magic words "stereotypical perceptions of gender," they're not protected. Talk about form over substance. But something is better than nothing, so bravo Judge Miller. However, Judge Miller immediately piddled on his ruling by saying that "not all gender stereotyping is discriminatory." This proposition, which contradicts the U.S. Supreme Court's ruling in Price-Waterhouse, leaves a loophole a mile wide. It is this loophole which he will later use in Creed II to throw the whole case out of court. However, it's interesting to note that he cited, as authority for this proposition, the initial opinion by Judge Robertson in the Schroer v. Billington case which Robertson later repudiated. (See my previous blog on Schroer, starting at the heading "Legal Issues.")

In allowing parts of the complaint regarding "stereotypical perceptions of gender" to stand, Judge Miller took note of the fact that he was deciding a motion to dismiss, in which the words of the complainant must be taken as 100% true for purposes of the motion. He purposely ignored the protests of the employer, Family Express, which sputtered that stereotypical perceptions of gender had nothing to do with it because their termination letter said that Amber Creed was dismissed because she violated their dress code, not because she's transgender. Judge Miller said "talk to the hand" and ignored the termination letter, as he was required to do by law on a motion to dismiss. The motion of the employer Family Express to dismiss the whole complaint was denied.

Judge Miller Gets It Wrong Again - Creed Scene II

After Judge Miller's decision on the motion to dismiss (Creed I), the Creed case went forward, and each party looked for evidence in the form of documents and witness testimony. In 2008, Family Express came back and filed another motion - this time a motion for summary judgment.

This motion claimed that Amber Creed was not dismissed because of stereotypical perceptions of gender, but rather because she refused to comply with the Family Express dress code applicable to males. This is a rather perplexing claim. There doesn't seem to be much difference between these two. After all, if an employer creates a set of rules specifically applicable to males, based on stereotypical expectations of how males should clothe and style themselves, and then fires an employee because of their failure to comply with the stereotypical dress code - what the heck is the difference?

Stereotypes of Gender and Stereotypical Gender Codes - A Distinction Without A Difference

This issue has been plaguing courts around the country. They know that the law doesn't allow employers to force women (or men) to dress and act in a stereotypical fashion, but gendered dress codes are an old and time-honored tradition. Male dress fashion differs from female dress fashion in many ways, more subtle though it may be than the 1950s, but there are still different men's clothing stores and women's clothing stores, different men's and women's clothing departments, different men's and women's pants, and different men's and women's sneakers. The Civil Rights Act doesn't prohibit men and women from dressing differently. But the question at the pointy end of the stick is whether the Civil Rights Act allows employers to require them to dress differently. Different courts have given different answers. And when the employee is transgender, the question is even more difficult because there are decisions out there like Ulane saying that transgender people receive no protection, so some argue that dress code questions must be applied differently to them than to traditionally gendered persons.

Judge Miller in Creed II, starts off sensibly enough by noting that "Title VII doesn't allow an employer to treat employees adversely because their appearance or conduct doesn't conform to stereotypical gender roles." But he immediately gets stuck in the tar pits in his next sentence: "Although discrimination because one's behavior doesn't conform to stereotypical ideas of one's gender may amount to actionable discrimination based on sex, harassment based on sexual preference or transgender status does not." Okay, at least this time he recognizes that there is a difference between sexual orientation and gender identity, even if the terms he uses are slightly incorrect. But he totally ignores the fact that firing a person because they are transgender means using stereotypical judgments about gender ipso facto. He gamely attempts to harmonize these mutually exclusive statements by saying that Creed can win if she shows that "the employer actually relied on his or her gender in making an adverse employment decision." Yet, in the end, he ruled that Family Express didn't discriminate against Ms. Creed based on her gender because "it relied on a uniformly applied, sex-specific dress code and grooming policy." In other words, you can't base your decision on gender stereotypes, but you can base it on a gender stereotypical dress code. This is a distinction without a difference. Under Judge Miller's ruling, any employer who wants to be able to fire transgender employees with impunity can do so if their lawyer is smart enough to tell them to enact a gender specific dress code first.

I Hope You Don't Think I'm Being Stereotypical, But Would It Kill You To Look Like A Man?

Judge Miller tried to redeem himself by saying that relying on a dress code can be sex discimination if the dress code is merely a pretext for sex stereotyping. But he reached the astonishing conclusion that nothing in this case suggested sex stereotyping as a reason for the termination. He reached this astounding conclusion despite comments during the termination meeting, after Ms. Creed informed them that she was going through a gender transition, such as whether "it would kill [her] to appear masculine for eight hours a day," questioning why she applied for a job if she knew she would be undergoing a gender transition, and ordering her to report to work "as a male." There was also deposition testimony in which one manager admitted that he thought Ms. Creed didn't look like the same person because of her feminine appearance, and he didn't consider wearing makeup or having long hair to be masculine characteristics. In addition, the termination happened shortly after her co-workers and store manager began to notice changes in her appearance. Family Express had even asserted in its evidence that it received numerous complaints about Ms. Creed's feminine appearance, suggesting that the employer's problem stemmed less from dress code violations than from customer sex stereotypes. Illogically, the Judge said these could be construed as simple expressions of the fact that Ms. Creed had violated the dress code. He also said that "direct evidence [of discrimination] essentially requires an admission by the decisionmaker that the adverse employment action was based on the prohibited animus." In other words, if the employer insists that it didn't have an intent to discriminate, even though it is obvious beyond belief that it did, then the employee loses.

What?! [Cue Twilight Zone Music]

Frankly, it is obvious that Judge Miller was completely nonplussed by this case, and the only thing I can think of is that he temporarily lost his ability to reason, because he is otherwise a pretty sharp cookie. A student turning in this level of shoddy work to me would get an F. In fairness, I realize that this area of employment law is very complicated and confusing, but a federal judge is expected to be able to think his way through this more elegantly. Miller's two decisions in Creed stand for the proposition that federal sex discrimination protection extends to discrimination based on gender expression, but not gender identity, that a complaint must use the magical words "stereotypical perceptions of gender", that an employer can't discriminate based on sex stereotypes, but it can rely on a dress code that enacts sex stereotypes, unless that is a pretext for sex stereotyping, but the employer is presumed to have relied on the dress code unless it admits otherwise. Astounding.


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The judge and the rest of society (to include many who change gender) are under the mistaken impression this is about looks. But those of us who have lived through this know that it is about bodily integrity. When did people start thinking this was about clothing?

I've come to the conclusion that we need to make two changes.

The first is to the ADA, so that transsexual people in transition are considered the same as any other person receiving required medical treatment.
Analogy: Dress codes are relaxed if an employee has a broken leg, to allow casts etc. While a transitioning person is still legally of sex X, but required to dress as sex Y, dress codes must be similarly relaxed.
Note that once Transsexual people have transitioned, they are no more disabled than anyone whose broken leg is healed.
This provides protection for TS people, but not TG people who are not undergoing medical therapy.

The second is including gender identity (and while we're at it, as a separate issue, sexual orientation) as a protected class in Title VII of the Civil Rights Act. All of the band-aids such as ENDA have been proposed are compromises in the hope of reducing opposition. However those in opposition are no less implacable in their hostility as the result, so we may as well go for the whole shebang. It won't be any more difficult than passing down a much-watered-down version, because the watering-down has been ignored by the other side in their propaganda.

The upshot of this would be that TG people would be required to adhere to the dress code of their legal sex. TS people in transition would not, but would be required to both before and after transition (just to different sexes corresponding to their legal sex at the time). Not addressed is a Federal definition of legal sex, as the same person can be of different legal sexes depending on the state and sometimes county jurisdiction.

Everyday Transperson | January 25, 2009 8:25 PM

Excellent article Dr. Weiss !!

One question, is there a website or other legal reference which lists all of the cases to date involving transgender people in the area of employment law ?? If you have any information about that please post.

Again, great article !!

Tronetti V TLC Healthnet did set the bar for Title VII protection for those undergoing medical based transition, it's been ignored by TG legal people but regarded as the watershed case in straight legal circles.

It did set a bar at surgery for actual change of sex which leaves a bad taste in the mouth of those who are less than surgery track. Essentially, the protection for an MtF is as a gender non conforming male undergoing accepted medical treatment up to surgery. To use it, one has to admit they are still legally male until surgery. It does acknowledge the RLT and therefore refutes employer "dress codes" as a reason for dismissal.

He also said that "direct evidence [of discrimination] essentially requires an admission by the decisionmaker that the adverse employment action was based on the prohibited animus." In other words, if the employer insists that it didn't have an intent to discriminate, even though it is obvious beyond belief that it did, then the employee loses.

It's disappointing, but not surprising, that he's bending over backwards to side with the employer. He was appointed by Reagan, and he's a federal judge. Considering how hard a time employment discrimination cases have getting to trial, much less winning at trial and surviving appeals, it almost seems as if these judges think it's their job to side with the employer in discrimination suits.

I don't remember where I read it, but I'm sure you're already familiar with the study, Dr. Weiss, that there is actually a decreasing number of lawyers filing suit in employment discrimination cases because they know it's just not worth it. To me, that was the real lesson of Lilly Ledbetter (although the act named after her is good): the legal system is so rigged against employment discrimination suits that even the most obvious, well-documented cases of employment discrimination can't get through.

Much of this I'm sure has to do with the fact that so many of these judges were appointed by Republicans. The Supreme Court gets a lot of attention when it comes to appointments, but all levels of federal judges have great power to determine who has access to legal remedies and who does not and progressives would do well to pay attention to all judges who get appointed.

Maybe Obama will turn this around. Because no matter whether there's an ENDA or we get added to the Civil Rights Act or what have you, if judges are willing to do this kind of work for employers, even the most explicit protections are rendered meaningless.

This judge says that the employer must confess to discrimination for a (former) employee to win a case. That's at least honest. But who knows, maybe another judge soon will say that certain admissions of discrimination aren't enough? When do we get to the point where an employer, so emboldened by these decisions, literally sends a letter to a former employee saying, "You were fired because you're Black," and the judge still finds in favor of the employer because said letter wasn't notarized?

OK, I just went off the deep end there....

On another note, I'd be interested in reading that law review article you're writing about the history of the concept of "sex." How might someone like me be able to access a copy?

So whats so bad about adding gender expression as well as gender identity?

After all cis-folk also need this protection too as there have been cases with women fired for not being feminine enough in their presentation by cutting hair too short or not wearing makeup etc.

Especially if your right about watering down things being poor bargaining.

So why not protect all TG people then? It would be in fact protecting all people.

Why are these things ending up in court ? If you decide to transition, expect to lose everything. Whatever you get to keep goes forward into your new life. Tough love ? Yes .. its a tough world honey, you just gotta be tougher. Wal-mart and grocery stores are not exactly the best jobs to have during costly transition anyways, unless of course you're hoping to fund transition with frivilous lawsuits.

Just because currently people lose a lot in transition it doesn't mean they have to roll over and accept it like an abused but loyal dog.

People don't usually lose their jobs when they convert to another faith or become an athiest. If they discover they are adopted and are not quite the racial mix they thought they were does someone lose their job over it? Nope. And if someone develops a medical condition that does not effect job performance usually they keep that job.

Just so long as it's not being TG.

Even many body-modifications do not cost one their job. If a woman gets breast implants she doesnt usually get fired. Most tattoos these days do not effect ones job and usually visual piercings are ok so long as they are worn with those clear retainers.

So why should an extremely persecuted group put up with being subjected to being made an exception? Why should it put up with being made unequal in a country where the principle of equality is supposed to be universal and self-evident. As such any action designed to remove an hypocracy from that universal equality is a patriotic civil duty of perhaps the highest order and so its impossible for it to be frivolous.

Why should some people have to be tougher than others? Why should some people put up with what others are protected from? Why should we put up with the masters kicking and slink off when others would turn around and bite?

Why should we, unlike everyone else, just put up with it and not stand up and say "No, you promised equality for all now I'll hold you accountable for failing to deliver on our share of that!" and use the tools provided for that very purpose for citizens to use to gain protect and ensure that equality?

"And if someone develops a medical condition that does not effect job performance usually they keep that job.

Just so long as it's not being TG"


TG is now a medical condition? I can see it now:

"I'm a terminal drag queen."
"Don't you suffer from advanced gender queer?"
"It's hell being an acute crossdresser."

Geez, what next.

Hey don't laugh. I was born a walking Thai surgery center and it's rough. Do you know how hard it is in a job interview when I answer every question with "It places the lotion in the basket..."?

I see where you missunderstood Susan, but i was not claiming ALL TG variations are medical conditions. Rather I was pointing out that a variety of changes or apparent changes in both intrinsic qualities or in choices were not used as excuses for firing people yet being TG was.

So my sentance ->"Just so long as it's not being TG" related to the whole previous paragraph, not just the final sentence of that paragraph.

And of course enough people classify TS as part of TG and classify TS as a medical condition to have made it a valid point even were I not. And interestingly there are fascinating and worrysome logical consequences from assuming there is no biological component to comfortably gender-fluid people but merely psychological as that would mean that the possibility of creating such psychological comfort with gender fluidity would be a potential non-surgical alternative treatment for TS whereas were gender fluidity innate then a TS who lacks it would still need surgery.

But such speculations have nothing to do with my point.

Which is that a panoply of peoples innate and chosen changes are protected from employment discrimination and yet another as equally unrelated to capacity or hindrince in the ability to perform the assigned task is not.

All are ethical whether choices or innate. Several may even effect job performance (prayer-breaks, fasting, holidays etc and thats just the changeable choice of religion!) and yet are protected.

Hence there is a clear double standard that we need not put up with and so any legal redress or mechanism for change provided for in the system utilised in order to bring about equality is not frivolous but instead very much appropriate.

Though possibly taking a sentence out of context and using it to make mocking jokes may be considered frivolous mayhap?

awww .. another bunch of batty bat dung

First of all nobody has a right to do anything in a place of business that they are not specifically hired to do. Now if your talking allowances and permissions then thats a different kettle of fish. If somone's faith requires them to take prayer breaks at cetain times a day then that is something those people negotiated with the company ahead of time. It's a PERMISSION, not a right. If your talking about sickness and health that is an ALLOWANCE that is made to people based on the fact that we are all human and have in common, but even that much is not guarenteed forever.

In the case at hand, this person decided to femme him/her self up AFTER being hired to do a job that specifically brings him/her into contact with the customers and life blood of this company. The person did this without PERMISSION from management to do so and is therefore in violation of the contract of employment where an employer has the RIGHT to expect an employee to represent their company in a fashion that is consistant with the dress code and presentation of the other employees. This person should have sought PERMISSION to transition gender to female, and if so granted should have immediatly presented in a fashion consistant with the other female employees. If not granted then the employee could have sought a more favorable position elsewhere, or continued to present in the gender he/she was hired as.

But no! This person decided to push the envelope by going androgynous, without PERMISSION to do so, and without regard to the other employees or the effect it may have on his/her employers sales. Therefore he/she brought the whole thing down on him/her self and should suffer the consequences.

DUH!

For every action there is an equal and opposite reaction!

Dung huh?

When being contracted into an employment relationship a person cannot, not just does not but cannot, wave or be denied their inalienable universal human rights. Hence the word inalienable. So either the rights are not universal or inalienable or they are and the contract is in error.

Now what is right is not always what is provided for by law, and I realise that the USA considers businesses far more as if they were private persons than much of the rest of the world resulting in many legal structures contrary to human rights principles on the rights of workers. Nevertheless are their no laws restriciting what an employer may dictate regarding their workers?

Requiring permission to transition? Has the USA so degenerated that an employee is the property of the employer? That their human, civil and political rights exist solely by the sufferance of their masters?
Do people require an employers permission to have cosmetic or life-saving surgery?

Or is it, as I suggested, that there is a double-standard, an inequality that rightly and fairly should be equalised.

In principle in a contract, even one entered without any coercion of any sort, a persons human rights remain and not just any rules and strictures etc may be applied to them. Now if the law allows for said then the law is contrary to human rights, is unethical and requires reform.

This comment has been edited because it contained rude and offensive statements that violate the Bilerico criteria for acceptable use.

I reiterate, there is a difference between what the law says and what rights are. Rights come from philosophical principles. Laws often run counter to them or enshrine and protect them.

Gender expression is just one facet of ones right to self expression, including for example wearing religious symbols and religious clothing. You may wish to read the Yogyakarta Principles for more on that part of the subject and the principles of human rights, being centuries old, have been published about more intensively and extensively than we have room for here.

As for 'godforsaken' countries the citizens DO have human rights, just not legal protection of their rights and frequently their human rights are abused by the law itself. Hence my repeated distinction between the rights and the law. And I do support the struggle for greater protection of human rights internationally. And in my own country where for much of the country our rights have no constituional protections merely protected only by conventions.

As for what you can do as a business owner, no you cannot place any old restriction or demand on your workers. They have human and legal rights as workers and in Australia at lest there are a number of laws that specifically do state what obligations both employers and employees have.

As for how one dresses for work :) I'll mention that to my working Goth friends. Actually every Goth I know in my own town other than myself over the age of 15 has a job, some of them very well employed indeed. And having facial piercings, women with 70% of their heads shaved or dreadlocks and men in mohawks or very long and brightly dyed hair etc has not prevented them getting that employment!

but oh yes appearance discrimanation does exist in employment certainly, but not everywhere and regardless that doesn't make it right. You seem to be arguing that existing injustice is right simply because it exists.

Even after your 'dung' comment I'm stunned you would make an ablist statement (and it's an ablist ad hominem no less!) with your: "But then I forgot, you can't since your in a wheelchair and don't actually have to work. How convenient for you."

I'm able to be civil with you and let my argument stand on its own merits without resort to personal attacks. Why are you unable to, or are choosing not to?