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April 11, 2008

Obama on LGBT Issues

The Advocate recently interviewed Obama on LGBT Rights issues.  Among other things, he said that if he is elected, he expects to be able to eliminate "Don't Ask, Don't Tell" and help pass the ENDA.

However, he notes that he thinks it would be politically unfeasible to include gender identity in the bill.

Importantly, he mentioned that he would like to see equal federal benefits for civil unions.  This would be a major step forward, but would be difficult to do because it would require a repeal of DOMA.

You can read the full interview at Advocate.com.

April 11, 2008 in Other | Permalink | Comments (1) | TrackBack

April 10, 2008

Transgender exclusion from ENDA

The Workplace Professor Blog points out that Sen. Edward M. Kennedy has taken the position that the ENDA should cover sexual orientation (including gays, lesbians, and bisexuals), but not sexual identity or gender identity.

Then, the Bloggers point out that the ENDA should include gender identity/transgendered individuals instead of leaving the courts to grapple with the issue.

I couldn't agree more.  The courts can recognize protection for transsexual individuals by using the Price Waterhouse analysis under Title VII, but why not provide courts with clear guidance on the issue by including sexual identity/gender identity in the scope of ENDA?

April 10, 2008 | Permalink | Comments (4) | TrackBack

April 9, 2008

SSRN Sexuality and the Law Abstracts

For those interested in scholarly articles relating to sexuality and the law, you might consider taking a look at the SSRN Sexuality and the Law Abstracts.  Nan Hunter explains that the "goal for the series is that it will become an interdisciplinary forum for posting completed works and works in progress that concern legal and social regulation of sexuality and expressions of sexual or gender identity, including not only minority forms but also critical assessments of the institutions and practices which construct dominant sexual identities as well."

SEXUALITY & THE LAW ABSTRACTS

Vol. 1, No. 1: Apr 1, 2008

NAN D. HUNTER, EDITOR
Professor of Law, Brooklyn Law School, Legal Scholarship Director, Williams Institute, UCLA Law School
nan.hunter@brooklaw.edu

April 9, 2008 in Other | Permalink | Comments (0) | TrackBack

Houston Chronicle Coverage of Lopez v. River Oaks case

The Houston Chronicle coverage of the Lopez v. River Oaks case can be found here.

April 9, 2008 in Employment Discrimination | Permalink | Comments (0) | TrackBack

April 7, 2008

Transsexual Plaintiff Defeats Summary Judgment--S. Dist. of Texas

The United States District Court for the Southern District of Texas denied both the plaintiff's and the defendant's motions for summary judgment in Lopez v. River Oaks on April 3, 2008.  This case is interesting because there is no current Fifth Circuit decisions addressing the issue of whether a transsexual can proceed with a Price Waterhouse-type gender non-conformity claim under Title VII.

In that case, a pre-operative male-to-female transsexual applied for a job with the defendant.  On her job application form, she provided multiple names (Izza and Raul--her legal name).  During her interview, she thought that the employer was aware of her transgender status.  She was offered a job, however, the job offer was rescinded after a background check revealed she was male.  Although she quit her other job to accept the position, she was informed by the defendant that the job offer was going to be rescinded due to her "misrepresentation" of her gender on her job application.

First, the court recognized that a transsexual plaintiff may state a cause of action for gender non-conformity using the Price Waterhouse sex stereotype analysis.  Although the court found that the plaintiff's argument that discrimination against transsexuals is sex discrimination per se was waived, the court recognized that transsexual plaintiffs can state a cause of action for sex stereotypes (in line with decisions like Smith v. City of Salem from the Sixth Circuit Court of Appeals).   

The court also found that there may have been direct evidence of discrimination in this case due to the letter rescinding the job offer based on her alleged "misrepresentation" of her sex.  Although a jury might find the letter reflected a neutral policy (against hiring individuals with application materials that are inconsistent with the background checks), the jury could also understand this explanation as pretextual and a cover-up for sex discrimination.  Thus, the court denied both parties' claims for summary judgment.  Where sex is not a bona fide occupational qualification (or an essential job qualification), the court found that a potential employee has no legal duty to reveal her Gender Identity Disorder or her biological sex to the employer.  The entire opinion can be found on the Lambda Legal webpage here.

April 7, 2008 in Employment Discrimination | Permalink | Comments (2) | TrackBack

April 6, 2008

Pregnant F-to-M Transsexual

Granted, this is not a "legal" blog entry, but I wanted to weigh in on this interesting cultural development. An F to M transsexual man is pregnant. His wife was unable to carry a child and he still had his female organs in place, so he was artificially impregnated to carry their child.

If you watch the video-news coverage, you can see the joy in the couple's faces when they learn that they are having a baby girl.

The thing that bothers me about the event is not the fact that a happy couple is about to enter parenthood, but the public spectacle that is being made out of this otherwise joyous occasion. Yes, the pregnancy itself is unconventional. But, the fact that a loving couple wishes to raise a child together is the most conventional practice around.

This exact kind of public shock surrounded intersex births. Doctors and parents were uncomfortable with the truth: sometimes, sex is not black and white. In the past, doctors treated intersex births as "emergencies" and encouraged parents to make a quick decision and "choose" a gender/sex for their child. Little boys with micropenises were transformed into girls. This type of quick decision-making is now discouraged in the medical community. Doctors and parents now recognize that sex is not always clear at birth.

Nor, as we can see today, is it always clear during pregnancy. (In the past, we could assume that a pregnant individual was a woman). As the boundaries between male and female blur we have the opportunity to become enlightened and to accept people for who they are. This pregnancy is one such example. Instead of treating these loving parents like a spectacle, we should wish them well and leave them alone.

Granted, the natural response to these comments is: but they chose to go public with their story. Why shouldn't we (the general public) be spectators in this event? True enough. However, I have a feeling that this pregnancy would have made the news with or without the couple's cooperation. At least they were able to present their side of the story by coming forward voluntarily. In any event, we can choose to continue to dwell on this unusual event or we can congratulate the couple, recognize that sex and gender are not binary categories as many insist, and move on. I choose the latter.

April 6, 2008 | Permalink | Comments (2) | TrackBack