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Sample Letter to Employer re:  Transgender Discrimination & Harassment

Sheryl I. Harris, The Legal Aid Society - Employment Law Center
(415) 864-8848, sharris@las-elc.org

 

[Date]

[Name]                                   

[Address]

Dear [Name]:

Edwin Employee has contacted our office about some disturbing treatment he has received as an employee of Any County Sheriff’s Office (Sheriff’s Office).

Mr. Employee has been an employee at Sheriff’s Office since March 10, 1997.  He began as a [job title] in the [department], then became a [job title] in the same department in [date] and then a [job title] in [department] in [date].  He has most recently been offered a position as a [title], for which he begins the training academy on [date].

Mr. Employee is looking forward to beginning the academy and his new position as a [job title].  However, given the inappropriate treatment to which Mr. Employee has been subjected in the past, he and I both have some concerns that he will be treated fairly and legally at the training and in his new position.  I am hopeful that this letter will assist you in ensuring that Mr. Employee is able to participate equally with other trainees in the academy and that he will experience no further problems during his continued employment with Sheriff’s Office.

Background

As he has explained to you, Mr. Employee is transsexual, which means that his birth sex (female) does not match his gender (male).  Sex refers to an individual’s biological or anatomical identity as male or female, while gender describes the collection of characteristics that are culturally associated with maleness or femaleness.  Most people experience their gender as correlating to, or in line with, their physical sex.  That is, most people born with female bodies also have a female gender (i.e., an internal sense that “I am a woman”), and most people who are born with male bodies have a male gender (i.e., an internal sense that “I am a man”).

For a transsexual person, however, there is a conflict between the individual’s physical sex and gender.  This conflict gives rise to a condition known as gender identity disorder.  Gender identity disorder (also known as gender dysphoria) is a mental and physiological condition characterized by a strong and persistent desire to be a member of another sex, coupled with a continued discomfort with one’s biological sex.[1]  See Diagnostic and Statistical Manual IV at 532-538.  Treatment may include psychotherapy, hormone therapy and sex reassignment to conform an individual’s physical sex to his or her gender identity.  Id.  This process is known as “transitioning” from one sex to the other.

As he has advised you, Mr. Employee began transitioning from female to male in [date] and has been living as a man since that time.  Mr. Employee encountered no problems with his transition while continuing to work in the [department].  However, in early [month] of this year, Mr. Employee was assigned to County Jail as his permanent duty position.  He worked at County Jail for a little over three days.  He was then asked by Sergeant X to leave the base immediately, on orders from Lieutenant Y, allegedly due to problems with the chain of command.

However, upon meeting with Lieutenant Z a few days later, Mr. Employee learned that the principal problem was that he is transsexual and that in particular, Captain W had had a problem with this fact.  Lieutenant Z proceeded to ask Mr. Employee for proof of his transition, such as a letter from his doctor and legal name change documents.  Lieutenant Z asked Mr. Employee such uninformed and inappropriate questions as, “What if you changed back next month?”  Mr. Employee does not know how Captain W, Lieutenant Z or anyone else became aware that Mr. Employee is transsexual.  Mr. Employee has disclosed this information to only a limited number of people at Sheriff’s Office.

Additionally, on [date], one of Mr. Employee’s co-workers overheard Sergeant V, who had previously been in Mr. Employee’s chain of command, tell Sergeant U and others present about Mr. Employee’s transition.  Sergeant V addressed Mr. Employee as “she” throughout the entire incident.

Sergeant V’s inappropriate disclosure, the decision to transfer Mr. Employee away from County Jail and Lieutenant Z’s inquiries are extremely disconcerting and raise serious legal questions under Title VII of the Civil Rights Act of 1964, as amended (“Title VII”), the California Fair Employment and Housing Act (“FEHA”) and the California Constitution.

Discrimination and Harassment on the Basis of Sex

Title VII and FEHA forbid discrimination in the “terms, conditions, or privileges of employment” on the basis of sex.  42 U.S.C. 2000e-2; Cal. Gov’t Code 12940(a).  These laws similarly prohibit harassment on the basis of sex.  Meritor Sav. Bank v. Vinson, 477 U.S. 57 (1996); Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991); Cal. Gov’t Code 12940(j)(1); Fisher v. San Pedro Peninsula Hosp., 214 Cal.App.3d 590 (1989).

Federal and state courts have held explicitly that transgender people are protected from discrimination under Title VII and other sex discrimination statutes.  See, e.g., Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000) (Title VII prohibits discrimination against transsexuals); Enriquez v. West Jersey Health Systems, 2001 N.J. Super. LEXIS 283 (N.J. Super. 2001) (concluding that state law prohibiting sex discrimination in employment protects transsexual people); Maffei v. Kolaeton Industry, Inc., 626 N.Y.S. 2d 391 (N.Y. Sup. Ct. 1995) (holding that city ordinance prohibiting “gender” discrimination protects transsexuals and disagreeing with the reasoning of federal cases which hold that Title VII does not protect transsexuals); Rentos v. OCE-Office Systems, 1996 U.S. Dist. LEXIS 19060 (S.D.N.Y. 1996) (refusing to dismiss transsexual woman’s claim that she had been discriminated against on the basis of sex in violation of the New York State Human Rights Law and the New York City Human Rights Law). See also Declaratory Ruling on Behalf of John/Jane Doe (Conn. Human Rights Comm’n 2000) (relying on Price Waterhouse [infra], Schwenk and other recent federal court decisions in holding that the Connecticut state statute prohibiting discrimination on the basis of sex encompasses discrimination against transgender individuals); Jette v. Honey Farms & Millette v. Tutco (Mass. Comm’n Against Discrimination Oct. 10, 2001) (holding that transsexual people are protected by state law prohibitions against sex discrimination).

These cases explain that discrimination because an individual is transsexual or transgender or changes sex is discrimination based on sex.  As the court in Maffei noted, “Derogatory comments relating to the fact that as a result of an operation an employee changed his or her sexual status, creates discrimination based on ‘sex.’”  Id. at 556.

Further, the language “on the basis of sex” includes discrimination and harassment on the basis of gender and gender stereotypes.  See Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (holding that discrimination against a person because that person does not conform to traditional sex stereotypes is covered by Title VII); Schwenk v. Hartford, supra (stating that “’sex’ under Title VII encompasses both sex – that is, the biological differences between men and women – and gender”); Nichols v. Azteca Restaurant Enterprises, 2001 U.S. App. LEXIS 15899 (9th Cir.) (holding that harassment on the basis of gender stereotypes violates Title VII and the Washington Law Against Discrimination [FEHA’s counterpart in Washington state]) [2].  In Price Waterhouse, the court noted, “We are beyond the day” when employers may insist that employees “match[ ] the stereotype associated with their group [because], in forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.”  Id at 251.

 

Discrimination and Harassment on the Basis of Disability

The FEHA also prohibits an employer from discriminating against an individual because of the employee’s disability.  Cal. Gov’t Code 12940(a).  A disability under FEHA is a mental or physiological disorder or condition that limits a major life activity, and includes being regarded as having, or having a record of, such a condition.  Cal. Gov’t Code 12926(i),(k).  Gender identity disorder is a physical and mental condition that, especially when untreated, typically limits major life activities such as interacting with others, working, concentrating, sleeping, etc.  Discrimination or harassment of an employee because he or she has gender identity disorder is unlawful under FEHA.[3]

Several courts have held that gender identity disorder is a disability and that discrimination on that basis is thus unlawful.  See Enriquez v. West Jersey Health Systems, 2001 N.J. Super. LEXIS 283 (N.J. Super. 2001) (concluding that transsexual people are protected by state law prohibitions against disability discrimination); Doe v. Yunits, 2001 WL 664947 (Mass. Super. Ct. 2001) (holding that a transgender student had stated a viable disability discrimination claim); Jette v. Honey Farms & Millette v. Tutco (Mass. Comm’n Against Discrimination Oct. 10, 2001) (holding that transsexual people are protected by state law prohibitions against disability discrimination); Evans v. Hamburger Hamlet & Forncrook, 1996 WL 941676 (Chi. Com. Hum. Rel. 1996) (denying motion to dismiss disability claim brought by transsexual plaintiff); and Smith v. City of Jacksonville Correctional Institution, 1991 WL 833882 (Fla. Div. Admin. Hrgs. 1991) (holding that an individual with gender dysphoria is within the disability coverage of the Florida Human Rights Act, as well as the portions of the Act prohibiting discrimination based on perceived disability).

Furthermore, it is unlawful under FEHA for an employer to refuse to make reasonable accommodation of an employee’s disability.  Cal.Gov’t Code 12940(m).  Reasonable accommodation of gender identity disorder may include, for example, referring to an employee with names, pronouns and titles corresponding to the employee’s gender, permitting an employee to dress and use the restroom in accordance with the employee’s gender and educating co-workers to dispel myths and stereotypes about gender identity disorder in order to prevent harassment on that basis.

Unlawful Inquiries

Additionally, FEHA prohibits “any non-job-related inquiry of an employee” that expresses discrimination as to the person’s sex or disability, unless that request for information is “directly related and pertinent to the position” (emphasis added).  Cal. Gov’t Code 12940(d).  The FEHA also prohibits any medical inquiries of an employee that are not job-related or consistent with business necessity.  Cal. Gov’t Code 12940(f).  Mr. Employee’s sex and medical condition are in no way related or relevant to his ability to perform his job duties.  These inappropriate inquiries are unlawful under FEHA.  They undoubtedly also violate Mr. Employee’s right to privacy under the California Constitution, Art. 1, 1.

Conclusion

In sum, it is as inexcusable, as well as illegal, to send Mr. Employee away from a jobsite because he is transsexual as it would be to remove an employee because she is a woman or because she has heart disease.  Likewise, it is wholly inappropriate to require proof of Mr. Employee’s sex or in any way inquire into his sex, gender, medical condition, transition or the like.

Recommendations and Request for Reasonable Accommodation

Mr. Employee and I both appreciate efforts you have taken thus far to familiarize yourself with Mr. Employee’s situation and to address the negative treatment he has already encountered.  In order to ensure that Mr. Employee be treated appropriately in the future, I request that you implement the following recommendations:

1.   Mr. Employee must be addressed with appropriate male titles, pronouns and other gendered forms of address by all Sheriff’s Office personnel.

2.  Mr. Employee’s sex and gender may not be questioned by any Sheriff’s Office personnel.  Nor may any inquiry be made into his sex, gender, medical condition or transition or any other inquiry that is not job-related or required by business necessity.

3.   Mr. Employee’s gender, sex, medical condition and transition are private facts, which must not be disclosed by any Sheriff’s Office personnel without Mr. Employee’s consent.  Should there be any discussion about these facts (e.g., to develop reasonable accommodations), Mr. Employee should be included in the discussion.  In general, Mr. Employee prefers that his sex, gender and medical condition be non-issues, as they are for every other employee.

4.   Mr. Employee must be allowed to use the restroom and locker room facilities used by other male employees.

5.   Mr. Employee must be expected to abide by the grooming standards for male personnel, as described in the Sheriff’s Office Rules and Regulations.

6.   The Sheriff’s Office non-discrimination policy should indicate that gender discrimination is a prohibited form of discrimination.  For examples of the various types of language used to effect this purpose, see Paisley Currah and Shannon Minter, Transgender Equality: A Handbook for Activists and Policymakers (2000) at 45-50, available at http://www.nclrights.org/pubs/transeq.pdf.

7.   All Sheriff’s Office personnel should be trained in transgender[4] issues.  Such training is essential for the proper treatment of both Sheriff’s Office personnel and the many transgender civilians with whom the Sheriff’s Office regularly comes into contact.  As I am sure you are aware, both the Berkeley and San Francisco Police Departments have implemented training programs in this area.  The San Francisco Human Rights Commission also conducts similar trainings on a regular basis.  Should you require further information about how to initiate a training program, I am happy to provide additional resources.

I hope that this information is useful to you in your efforts to ensure a comfortable, safe and lawful workplace for Mr. Employee and all Sheriff’s Office employees.  Please contact me at your earliest convenience so that we may discuss implementation of these requests, and so that I may provide any additional information or resources you require.  I look forward to hearing from you soon.

Sincerely,

 

 


[1] Gender identity disorder has long been recognized as a serious medical condition by the medical community and by many courts, including those in California.  See, e.g., Smith v. Rasmussen, 57 F. Supp. 2d 736, 740-743 (N.D. Iowa 1999) (providing a detailed summary of the current medical perspective on transsexualism and gender identity disorder); G.B. v. Lackner, 80 Cal. App. 3d 64 (Cal. Ct. App. 1978) (describing the seriousness of transsexualism as a medical condition); J.D. v. Lackner, 80 Cal. App. 3d 90 (Cal. Ct. App. 1978) (same).

[2] Although no similar statement has yet been made with regard to FEHA, it is likely that FEHA would be interpreted in the same manner because California courts often look to federal decisions interpreting and applying Title VII when interpreting and applying FEHA.  See Flait v. North Am. Watch Corp., 3 Cal.App.4th 467 (1992); Fisher v. San Pedro Peninsula Hosp., 214 Cal.App.3d 590 (1989).  Moreover, California courts are required to interpret FEHA “liberally” and are not bound by federal cases that apply a more restricted view of protected rights.  See Johnson Controls, Inc. v. FEHC, 218 Cal.App.3d 517 (1990).  As well, other states’ anti-discrimination laws have been interpreted in this manner.  See e.g., Nichols v. Azteca, supra; Enriquez v. West Jersey Health Systems, 2001 N.J. Super. LEXIS 283 (N.J. Super. 2001).

[3] Although FEHA’s federal counterpart, the Americans with Disabilities Act, excludes gender identity disorder from the definition of disability, the passage of the Prudence K. Poppink Act, effective January 1, 2001, removed this exclusion under FEHA.  Compare 42 U.S.C. 12211 and Cal. Gov’t Code 12926(i)(5), k(6).  See also A.B. 2222 5.

[4] “Transgender” is an umbrella term that describes individuals who are gender non-conforming, i.e., whose gender is other than that which is stereotypically associated with the individual’s sex.  The term encompasses, for example, transsexuals, transvestites, “masculine” women and “feminine” men, among others.