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NEWS RELEASE--September 26, 2002
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Transgender Equality: A few steps forward, one step back
2002 has been a banner year for transgender equality. In the last nine months, transgender advocates won legislative victories in seven key jurisdictions and suffered a disappointing loss in a long awaited decision by a federal district court in Louisiana, which issued a decision on September 16 holding that Title VII does not protect a male truck driver who was fired by Winn-Dixie for occassionally wearing stereotypically feminine clothing off the job.
On the legislative front, more jurisdictions have passed local laws protecting transgender people this year than in any other comparable period. Since January of this year, Allentown PA, Buffalo NY, Dallas TX, Erie County PA, New Hope PA, New York City, Philadelphia PA, Salem OR, and Tacoma WA added protections for gender identity and expression to their human rights ordinances, and Dane County WI passed a law prohibiting discrimination in publc employment. Similar bills are pending in Chicago, Boston, Baltimore and Eugene.
"The progress in legislation this year is a direct result of the hard work of transgender people and their allies to educate the public and legislators on issues that affect the community," said Kylar Broadus, an attorney and long time activist in the transgender and civil rights community. "But there is still a lot of work to be done on the local, state and national level to gain protection from discrimination and the hate crimes that plague transgender people." It remains legal to discriminate against transgender people in employment, housing and public accommodation in 48 states.
At the Southern Comfort Conference, an annual transgender conference held September 18-22 in Atlanta, the Human Rights Campaign unveiled data from a recent poll surveying what Americans think about transgender people. "While the poll results are good news the results clearly indicate more education needs to be done and that this education needs to be conducted carefully and strategically," according to David Smith, Communications Director and Senior Strategist for HRC.
On the downside, last week a federal district judge in Louisiana ruled that a man who occasionally wore female clothing outside of work was not protected by Title VII, a federal law prohibiting sex discrimination in the workplace. Peter Oiler, a truck driver for Winn-Dixie, was fired when he disclosed his practice of occasionally wearing feminine clothing outside of work hours to his employer.
Louisiana based transgender activist Courtney Sharpe expressed disappointment in this ruling. "The Supreme Court was clear in the Price Waterhouse v. Hopkins ruling that Title VII was to be interpreted expansively in order to eliminate sex discrimination in the workplace. Instead, the court has drawn an arbitrary and unprincipled line that permits an employer to fire a competent and hardworking employee, solely because he does not conform to masculine stereotypes."
The ruling in Oiler v. Winn-Dixie is at odds with other recent decisions which have interpreted federal and state sex discrimination statutes to protect transgender people. Earlier this year, for example, the Second Circut Court of Appeals found that a male who was denied credit because of his feminine gender presentation was protected by the Equal Credit Opportunity Act, a federal law prohibiting sex discrimination in lending. Similarly, in July of 2001, the New Jersey Court of Appeals ruled in favor of Carla Enriquez, a transsexual doctor who sued her employer for violating a New Jersey sex discrimination statute for terminating her after learning of her intention to undergo sex-reassignment. New York, Connecticut, and Massachusetts courts have issued similar rulings, concluding that transgender people are protected under state sex discrimination laws. In contrast, the judge in the Oiler hewed closely to the negative precedent set by the 1984 case of Ulane v. Eastern Airlines, which held that a transsexual woman who was fired from her job as an airline pilot after undergoing sex-reassignment was not protected under Title VII on the ground that a transsexual person is neither male nor female.
"The Ulane case was decided nearly twenty years ago and reflects a negative and dehumanizing view of transgender people that has long since been abandoned by most courts and legislators," said Spencer Bergstedt, an employment attorney in Seattle, Washington who specializes in transgender discrimination cases. "It is unfortunate that the judge in Oiler chose to look backward rather than to apply Title VII in a manner that is consistent with new Supreme Court precedents construcing Title VII broadly, especially in Price Waterhouse, and with our contemporary understanding of transgender people."
The National Transgender Advocacy Coalition has posted the case in PDF format here.
The Transgender Law & Policy Institute is non-profit organization dedicated to engaging in effective advocacy for transgender people in
our society. The TLPI brings experts together to work on law and policy initiatives designed to advance transgender equality. Charts and maps
listing all U.S. jurisdictions with transgender inclusive human rights laws can be downloaded at http://www.transgenderlaw.org.
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