September 26, 2007
10th Circuit Denies Title VII Protection to Transsexual Plaintiff
In Etsitty v. Utah Transit Authority, 2007 WL 2774160 (10th Cir. Sept. 20, 2007), the Tenth Circuit ruled that a transsexual is not protected by Title VII as a class and that this particular plaintiff could not establish "Price Waterhouse" gender non-conformity discrimination.
Krystal Etsitty worked for the Utah Transit Authority as a bus driver when she began to transition from male to female. She could not afford genital reassignment surgery, so she retained her male genitalia while she began to dress in a more feminine manner and started using women's restrooms. Id. at *1-2. Etsitty's trouble stems from her use of women's restrooms along her bus routes, which ultimately led to termination of her employment. Id. at *2. Her supervisors claimed that she was fired due to their concern about the possibility of public concern and potential liability stemming from Etsitty's use of women's restrooms while retaining male genitalia. Id.
First, the court held that Title VII's prohibition against workplace discrimination on the basis of "sex" does not include transsexuals because it only protects against discrimination discrimination against '"women because they are women and men because they are men.'" Id. at *4 (quoting Ulane v. E. Airlines, Inc., 742 F.2d 1081, 1085 (7th Cir. 1984)). The court noted, however, that "[s]cientific research may someday cause a shift in the plain meaning of the term 'sex' so that it extends beyond the two starkly defined categories of male and female." Id. at *5 (emphasis added).
Perhaps the Tenth Circuit is unaware of current data specifically explaining that "sex" (at least on a biological level) is not binary. In other words, intersex individuals (with both male and female biological characteristics) exist and clear scientific and medical research provides positive proof of this fact. See, e.g., Clinical Guidelines for the Management of Disorders of Sex Development in Childhood. See also Sara R. Benson, Hacking the Gender Binary Myth: Recognizing Fundamental Rights for the Intersexed, 12 Cardozo J. L. & Gender 31 (2005). In fact, courts have recognized this fact as well when addressing marriage and name changes for transgendered individuals. See, e.g., In re Heilig, 816 A.2d 68, 72 (Md. 2002) (citing Julie A. Greenberg, Defining Male and Female: Intersexuality and the Collision between Law and Biology, 41 Ariz. L. Rev. 265 (1999)).
Thus, the Tenth Circuit's reasoning seems flawed, especially due to the fact that it relies so heavily on the claim that there are only two sexes when excluding transsexuals from Title VII protection.
Next, the court decided not to address the gender nonconformity issue as Etsitty failed to establish an issue of material fact as to whether the reason proffered by UTA in support of firing her was pretextual. Etsitty, 2007 WL 2774160, at *6.
This element of Title VII (pretext) is meant to allow the plaintiff's claim to survive summary judgment so long as he or she can demonstrate that the employer's '"proffered explanation is unworthy of credence.'" Id. at *8 (quoting Stinnett v. Safeway, Inc., 337 F.3d 1213, 1218 (10th Cir. 2003)).
Here, UTA management claims that they are afraid of liability due to Etsitty's use of women's restrooms. This potential "liability" would stem from the fact that women using such restrooms would observe a "UTA employee with male genitalia . . . using the female restroom." Id. at *2.
Honestly, how would such a thing happen? I have never viewed another woman's private parts while using the restroom. Why not? Because women's restrooms have stalls! Unlike male restrooms, where individuals use either a stall or standing urinal (where genitalia might be public), women's restroom stalls are quite private. Are the employers in this case suggesting that this transsexual must be a exhibitionist due to her transsexual status? In other words, do they think that simply because she is in transition she will flaunt her male genitalia for all to view in the restroom? I think not. Why? Because transsexuals generally would rather be seen as their transition sex/gender, not a mix. In fact, Etsitty clearly states that she would have had the operation already, but she could not afford it (which is no surprise as the operation itself is very expensive and generally not covered by health insurance companies). Id.
In my humble opinion, Etsitty has established pretext and should be permitted to pursue her claim past the summary judgment stage.
Interestingly, UTA management said that they would gladly give Etsitty her job back once she has fully transitioned (ie. after the surgery). Id. However, she could not afford the surgery when she had a job, so how will she afford the surgery after her dismissal?
Unsurprisingly, the court also dismisses her equal protection claim based on the analysis of her Title VII claim. Id. at *10.
September 25, 2007
Transgender Employment Rights--Progress in Florida
As noted by our fellow lawprofessorblogs blogger, at the Workplace Prof Blog, Palm Beach and Broward counties might extend anti-discrimination protection to transgendered individuals in the workforce. A comprehensive list of cities, counties, and states protecting workers for gender expression and identity can be found on the Transgender Law and Policy Institute website.
Florida became entangled in a discussion about transgendered individuals at work due to the highly publicized firing last March of "Largo City Manager Susan Stanton, who transitioned from male to female . . . ." See South Florida Sun-Sentinel Article.
Workplace rights for transgendered individuals are particularly salient, as many transgendered individuals live in poverty (either they cannot get hired due to discrimination or they cannot keep the job they have due to discrimination, as demonstrated by the Stanton case). It will be interesting to follow the developments in Florida in particular, as the laws of the state are generally non-supportive of LGBT individuals in the area of marriage and employment discrimination. See Lambda Legal's summary of Florida Laws.
Why are Republicans Opposed to Discrimination at Work?
If, as William points out, Republicans do not favor legislation prohibiting discrimination based on sexual orientation in employment, why do they express distaste for such discrimination at work?
The answer could come down to simple economics. If a worker is producing money for the company or industry and is the best one for the job, then, regardless of race, gender, or sexual orientation, that person should be promoted. This kind of economic-based logic seems to hold quite a bit of clout with Republicans, who tend to be fiscal conservatives.
Just a thought . . .
September 24, 2007
New Support for HR 2015
A study conducted this summer by Fabrizio, McLaughlin and Associates shows that even Republican voters believe that firing someone simply due to sexual orientation status is wrong. 77% of the Republican voters polled believe that such discrimination at work is wrong. The most fascinating part of the study is that 67% of "moral" voters, including born again christians and evangelical christians agree. See Houston Chronicle Article from Sept. 21.
This lends even more support for HR 2015, a bill that would prohibit workplace discrimination based on sexual orientation. See my earlier post on HR 2015. Hopefully, this evidence will persuade legislators to pass the bill, however, in my opinion, it is unlikely that these Republican voters feel strongly enough about the issue to mobilize in support of the bill.
September 23, 2007
San Diego's Mayor Changes Tune
The Republican Mayor of San Diego recently changed his mind about gay marriage. He was determined to oppose same-sex marriage rights, but now he has changed his tune. His daughter, Lisa, is gay and he thinks that she should have the same rights as anyone else. See Article in USA Today.
It is nice to know that when the issue hits close to home, even the most conservative minds can change. However, it shouldn't take a gay son or daughter to help a politician recognize that preventing same-sex marriage is discriminatory and unconstituional.
At least the citizens of San Diego, under a new City Council Resolution passed by a 5-3 vote on Tuesday, Sept. 18, will be able to marry (for now). San Diego now joins many other California cities in voicing support for same-sex marriage to demonstrate a climate of support for gay marriage in wake of the pending state Supreme Court case.
September 18, 2007
Maryland's Highest Court Permits Same-Sex Marriage Ban
In a case published today (Sept. 18, 2007), the Maryland's highest court (the Court of Appeals of Maryland) ruled that the state's ban on marriage was constitutional and permissible.
The text of the opinion can be found here: Conaway v. Deane (Md. Sept. 18, 2007)
A discussion of the decision will follow shortly.
Hate Crimes Quandary--a gay defendant?
In today's New York Times, the press points out that a defendant currently facing trial for a hate crimes act (killing a gay man based on sexual orientation) claims that he, too, is gay. New York Times, Section B (Sept. 18, 2007).
This raises an interesting question--if the defendant is actually gay, should that matter? In the usual hate crime scenario, the defendant is accused of having hurt or killed a person based specifically on the victim's race, sexual orientation, etc. These types of crimes tend to carry higher penalties. We tend to think that a crime based on these factors is a more heinous type of crime--similar to lynchings and other race-based killings from years past.
However, does it negate "intent" for the hate crime if the person charged falls into the protected class as well? (Note that the NY Hate Crimes Act requires that the person "intentionally selects" the victim based on the protected class. N.Y. Penal Law Section 485.05 (McKinney 2007)).
Is it possible to be a member of a protected class (for hate crimes purposes) and hate that class at the same time? Probably. It seems to me that membership in the protected class should not be an "automatic" nullification of intent. Here's why:
Racial tensions run deep. In Rwanda, for example, members of the same general "race" (African or Rwandan) further broke down their affiliations into sects and killed members of other sects based on race or group-affiliation. Could someone be a member of the gay community, yet target other gay people? Unfortunately, yes.
Is this the type of crime that was meant to be punished by Hate Crimes Legislation? That is a more difficult question, it seems to me...
I welcome comments here as I continue to research and think about this question...
September 16, 2007
Support for H.R. 2015: Employment Non-Discrimination Act
On April 24, 2007, the Employment Non-Discrimination Act of 2007 was proposed to Congress. The new federal legislation is meant to "provide a comprehensive Federal prohibition of employment discrimination on the basis of sexual orientation or gender identity" and would protect certain employees from employment discrimination on those bases. The Employment Non-Discrimination Act of 2007, H.R. 2015 (as of Sept. 16, 2007).
Basically, the Act would provide coverage where Title VII is currently lacking (at least according to many courts), as the text of Title VII provides protection against discrimination on the basis of "sex." Many courts interpret "sex" as different from "gender" and/or "sexual orientation" in order to preclude protection for gay and transgendered employees. See, e.g., Ulane v. E. Airlines, Inc., 742 F.2d 1081 (7th Cir. 1984). Although, some judges find that the Supreme Court decision in Price Waterhouse lends credence to the idea that sex discrimination includes discrimination based on gender stereotypes and have held that gay employees are entitled to Title VII protection. See, e.g., Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864 (9th Cir. 2001). These inconsistent holdings could benefit from clarification and this proposed Act would provide consistent protection for many employees.
The House of Representatives is currently holding hearings on the proposed Act, and the text of the Act could be altered significantly, but the current version of the Act is supported by recent empirical research. Specifically, the Williams Institute recently published a booklet containing the summary from surveys conducted in the "mid-1980s to mid-1990s." The literature review, conducted by M.V. Lee Badgett, Holning Lau, Brad Sears, and Deborah Ho, expressed a consistent trend between and amongst studies with varying methodological and contextual bases: "sexual orientation-based and gender identity discrimination is a common occurrence in many workplaces across the country." The Report can be found on the Williams Institute website.
Many influential Americans are stepped forward to testify in favor of passing the Bill on Sept. 5, including openly gay members of Congress, professors and scholars as well as influential members of the community, such as an openly gay police officer (Boston Globe, Sept. 5, 2007).
It is worthwhile for legal scholars and the LGBT community to monitor the progress of this Act and future posts will update the status of the Act as it progresses through Congress.
September 11, 2007
California Marriage Bill Veto Likely
Once again, the California State Legislature has passed a bill to approve same-sex marriage rights. Currently, California provides a different system of same-sex partnerships called Domestic Partnerships.
Unfortunately, a veto from Governor Schwarzenegger is likely, as he vetoed a similar bill in 2005. Notably, the road towards same-sex marriage in California has not been steady. In 2000, voters approved Proposition 22, which states that marriage in California will be recognized only when it occurs between a man and a woman. Also, San Francisco Mayor Gavin Newsome permitted same-sex couples to obtain marriage licenses, which were nullified in Aug., 2004 by the State Supreme Court. (These nullified marriage licenses ultimately led to the current In Re Marriage cases--see below . . .)
It seems that Schwarzenegger may point to the view of the "people" (due to the passed proposition, now law) that clearly did not support the extension of marriage rights to gay couples.
However, this proposition was passed in 2000 and does not reflect the will of the public right now. Although, this new bill does conflict with the earlier law.
Currently, the issue is pending before the State Supreme Court (In Re Marriage Cases) to determine whether Proposition 22 (codified as Family Code Section 308.5) violates the Constitution by discriminating against same-sex couples by forbidding them from exercising their right to marry.
If the statute is not vetoed or the State Supreme Court case holds that California same-sex couples have the right to marry, California will join Massachusetts as the second state to permit same-sex marriages. (See "Legislature OKs same-sex marriage bill in the San Francisco Chronicle).
Thoughts & Musings: It seems to me that a favorable court decision is more likely. On public issues such as same-sex marriage, courts tend to take their cue from the public. As public representatives, the California legislature supports gay marriage. Perhaps the State Supreme Court will too. However, it is unlikely that Gov. Schwartenegger will change his mind--as he vetoed a similar bill in 2005. Not only would he look fickle, but he has a great excuse (Family Code Section 308.5 directly conflicts with the new statute). However, this "excuse" could potentially be distinguished, as it has been argued to apply only to out of state marriages. In other words, California voters expressed their intent not to recognize "foreign" same-sex marriages in 2000, which, arguably, does not conflict with the right to same-sex marriage in California. See post by Arthur S. Leonard from 6/26/07 on "Leonard Link" blog entitled "California Supreme Court Marriage Questions" explaining this argument in more detail.
September 01, 2007
Maine Supreme Court Supports Same-Sex Adoption
On Aug. 30, 2007, the Maine Supreme Court overturned a decision by the probate court refusing to grant a petition for adoption filed by a same-sex couple.
Reviewing the decision of the Supreme Court, it seems obvious that the Probate Court disregarded the best interest of the children based on semantics. The Probate Court refused to grant the petition because it did not have "jurisdiction" under the Maine adoption statute. The statute clearly provides for adoption by one unmarried person, but neither explicitly forbids or denies adoption by two unmarried persons.
In Adoption of M.A., 2007 M.E. 123 (Me. 2007), Supreme Court wisely pointed out that the same-sex couple could easily get around the provisions and adopt children together by filing separate petitions and consolidating them or by a second-parent adoption. Thus, the Court noted that the statute is ambiguous and turned to the purpose of the statute for guidance.
Obviously, the primary purpose for adoption is to provide for a child's best interest by allowing the child to grow up with a parent or parents where the child otherwise might have none (in the case of a foster child, for instance--exactly the type of children involved in this case). Id. at *24. In fact, in my humble opinion, the more caring people interested in raising a child, the better. Additionally, it is important to note that the two children involved in this case suffered from post-traumatic stress disorder and attention deficit disorder, among other things, due (in part) to the fact that their birth parents' rights had been terminated. The children had been living with the couple for approximately 5 years. Both the guardian ad litem and the home study recommended the couple as fit, able parents. Id. at *4. It would be traumatic for the children to be removed from the care of their loving foster parents because of an ambiguous adoption statute.
Noting that the adoption statute should be "liberally construed," the court held that the probate court has jurisdiction to permit same-sex adoptions. Id. at 31.
August 29, 2007
Chicago City Attys Claim EP Clause Does Not Protect Gays
In a strange legal move, the Attorneys for the City of Chicago filed a Motion to Dismiss claiming that gays (as a group) are not protected by the Equal Protection Clause. This position seems strange, given the proper interpretation of the Equal Protection Clause, as set forth in cases like Romer v. Evans, 517 U.S. 620 (1996). In Romer, the Supreme Court of the United States explained that: "if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification [or, in this case, treatment under the law] so long as it bears a rational relation to some legitimate end." Id. at 631.
Thus, even if gays and lesbians are not considered a suspect class and entitled to heightened strict or intermediate scrutiny, they are certainly protected, in some measure, under the Equal Protection Clause. At the very least, the Equal Protection Clause requires the police (if the allegations of the plaintiff are true) to justify their actions under the lowest form of review.
This case arose when a man was arrested and placed in the backseat of a police car. When he tried to use his phone, he alleges that he was dragged out of the car and beaten while the policemen used homosexual epithets. When he began to bleed, he informed the police officers that he was HIV positive and he was taken to a hospital for treatment. Subsequently, he filed a lawsuit against the police officers alleging that he was beaten due to his sexual orientation. The full text of the story can be found in Vol. 8, No.51 of the Chicago Free Press (Aug. 22, 2007).
August 28, 2007
N.J. Couple Unable to File Joint Taxes Until 2007
In Quarto v. Adams, 2007 WL 2262736 (N.J. Super. Ct. App. Div. Aug. 9, 2007), Judge Sabatino held that a same-sex couple married in Canada on July 28, 2003, could not file a joint tax return for their 2006 income, as their marriage was not recognized in New Jersey until the effective date of the Civil Union Act (Feb. 19, 2007).
The couple was married in 2003 in Canada, filed for a domestic partnership under in New Jersey in 2004 and planned to file joint tax returns for 2006. Prior to filing, they contacted the Office of the Attorney General for an advisory opinion. The Attorney General had previously issued an opinion stating that under the Civil Union Act, adopted following the Supreme Court's Lewis v. Harris opinion, "relationships validly established under the laws of other States and foreign nations [would] be valid in New Jersey beginning on February 19, 2007, either as civil unions or domestic partnerships." Id. at *2.
The tax inquiry was referred to the Acting Director, who explained that the couple could not file a joint tax return for the 2006 work year because their legal status was not recognized in New Jersey until February 19, 2007, "which was after their 2006 income had already been earned." Id.
In fact, the couple would have saved money had they filed separate tax returns for the 2006 year, however, they wished to file jointly for personal reasons. The couple asserted that they were entitled, under Lewis, to all of the rights and benefits provided to hetero-couples and the refusal to permit them to file jointly violates equal protection. Id. at *3.
The court considered the main issue to be one of timing. The court noted that in the Lewis case, the Supreme Court directed the legislature to adopt either a civil unions or same-sex marriage act within 180 days. Id. at *7. The Civil Union Act was enacted on Dec. 21, 2006, but was not effective until "the 60th day after its enactment" or Feb. 19, 2007.
Due to administrative concerns regarding a potential retroactive application of the Civil Union Act (for tax purposes), the court found that the couple could not file jointly for 2006. "For instance, because such same-sex couples could not have filed joint New Jersey returns in prior years, their employers ordinarily would not have withheld appropriate amounts of taxes, so their W-4 forms would have been substantially incorrect." Id. at *8.
Similarly, the court noted that the Taxation Division synchronized taxpayer status with federal law. So, "New Jersey taxpayers must have been married in the year that their income was earned in order to qualify for joint filing status as married persons." Id. at *6. "Because appellants' Canadian marriage was not legally recognized by statute in New Jersey as a civil union until February 19, 2007, appellants are being treated no differently than a truly similarly-situated heterosexual married couple. Id. at *7.
Thus, according to the court, the couple was entitled to a declaratory ruling that they could begin filing their taxes jointly in 2007.
Concurring Opinion: In an interesting concurring opinion, Judge Stern noted that the different treatment for tax purposes of heterosexual couples lawfully married outside of the state versus same-sex couples in the same situation constitutes "a denial of equal protection under the New Jersey Constitution." Id. at *8. However, Judge Stern ultimately concluded that the plaintiffs were only entitled to the declaratory relief provided by the majority of the court for this equal protection violation. He found the administrative reasons offered by the majority to justify its decision "necessary and constitutionally acceptable" even though the due date for filing the 2006 tax return, April 17, 2007, occurs after the effective date of the Civil Union Act. Id. at *9.
Thoughts and musings: Perhaps the concurring opinion opens the door a bit for other jurisdictions facing similar tax conundrums? Other courts could find that a same-sex couple could file jointly if the marriage or union was recognized before the tax filing deadline instead of requiring marriage recognition during the year the income was earned. For additional points regarding the court's reasoning in this case, see Professor Stephen Clark's Blog regarding Conflicts of Laws (noting that the court oddly seemed to defer to an admin. opinion of the attorney general and ignored the common law choice-of-law cases).