Many transgender employees routinely face demotions, unfavorable conditions of employment, and even discriminatory terminations--due not to job-related problems but to employers\u27 discomfort with and animus against transgender people. Lawyers may look to several sources of law in order to redress the rights of transgender clients who face adverse treatment in such situations, including transgender-specific nondiscrimination laws, state and federal sex discrimination laws, and state disability laws. Although courts historically have found transgender people excluded from coverage under certain laws, developing case law supports the arguments of transgender employees who face workplace discrimination

Levi, Jennifer L.

English

This Article discusses protections for transgender employee rights and how many transgender employees routinely face demotions, unfavorable conditions of employment, and even discriminatory terminations--due not to job-related problems but to employers\u27 discomfort with and animus against transgender people. The Author points out that although courts historically have found transgender people excluded from coverage under certain laws, developing case law supports the arguments of transgender employees who face workplace discrimination

Levi, Jennifer

bepress Legal Repository

Protections for Transgender Employees

Western New England University School of Law

Western New England University School of LawDigital Commons @ Western New England University School ofLawFaculty Scholarship Faculty Publications2003Protections for Transgender EmployeesJennifer LeviWestern New England University School of Law, jlevi@law.wne.eduFollow this and additional works at: http://digitalcommons.law.wne.edu/facscholPart of the Civil Rights and Discrimination Commons, and the Sexuality and the Law CommonsThis information or any portion thereof may not be copied or disseminated in any form or by anymeans or downloaded or stored in an electronic database or retrieval system without the expresswritten consent of the American Bar Association.This Article is brought to you for free and open access by the Faculty Publications at Digital Commons @ Western New England University School ofLaw. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Digital Commons @ Western New England UniversitySchool of Law. For more information, please contact pnewcombe@law.wne.edu.Recommended Citation30 Hum. Rts., Summer 2003, at 12Human Rights 12 Summer 2003 ly law that will promote the best inter-ests of the children involved. 1iffu~;·L: Rli-;;';~~-;~·the legal direc~;;;'-;hhe Center for Lesbian and Gay Civil Rights, located in Philadelphia, Pennsylvania. Transgender Employees continued from page 72 prongs is entitled to protectio~ under . the state disability discrimination proVI-sions. Several state human rights com-missions across the country, including Connecticut, Florida, Illinois, Massachusetts, and New Hampshire, have interpreted state disability laws to include transgender people. Some transgender people experi-ence gender dysphoria (generalized discomfort or unease about birth gen-der) and, as a result, can easily demonstrate that they have an "impairment" under the terms of the relevant state statutes. At the same time, they may be uncomfortable about embracing a psychiatric diagno-sis, which still carries the possibility of stigma in some areas of society. Even among those in the transgender com-munity who reject the psychiatric . model, most do not reject the premise that being transgender is likely a med-ical condition caused by biological factors that are not yet fully under-stood-and a growing body of scien-tific research supports this conclusion. Many trans gender employees face discrimination in the workplace. Lawyers may look to several sources of law in order to redress the rights of transgender clients who face adver~e treatment in such situations, includmg transgender-specific nondiscrimination laws, state and federal sex discrimina-tion laws, and state disability laws. Although courts historically have found transgender people excluded from coverage under certain laws, developing case law supports the argu-ments of transgender employees who face workplace discrimination. Jennifer Levi is a senior staff attorney at Gay & Lesbian Advocates & Defenders Summer 2003 (GLAD). She works on a wide range of cases defending the civil rights and civil liberties of gay men, lesbians, and trans-gender people. She was lead coun~el in the case of Doe v. Yunits, representmg a transgender student denied the right to attend school because of her clothing. Transgender Families continued from page 73 nas but not penises, reliance on surgery in this situation would have a starkly differ-ent impact on trans women than trans men. In view of these considerations, the judge in Kantaras declined to hold that phalloplasty is required for a transgender woman to be recognized as legally male, since any such requirement would be at odds with current medical knowledge and practice. In contrast, in the Chicago case, the trial court relied on the "lack" of genital reconstructive surgery to declare Sterling S. to be legally female, desp.ite his male gender identity, extensive medical treatments, and twenty-plus years of living and being accepted as a man. That the court's decision in Kantaras was shaped by expert medical testimony strongly suggests that providing such medical data is advisable to ensure that courts have the information they need to make informed decisions. The fact that the opinion was 800 pages long raises questions, however. If courts require extensive expert evidence and undertake detailed, individualized inquiries into a person's medical history, what recourse exists for clients who do not have access to experts or adequate medical care~ Will certain surgeries or hormonal therapies become required? What if the client does not believe medical treatment is appro-priate for him- or herself? While courts desperately need the kinds of information provided to the judge in Kantaras, that court's complex, highly medicalized inquiry has the potential to create almost as many problems as it solves. The better approach is for courts to point to the medical standards of care, which conclude that sex is determined by gender identity: the court then needs only to look to the person's gender identity to determine his or her legal sex. Recognition of gender identity should provide the law with a consistent, relatively simple 23 approach that accords with medical~y accepted standards yet at the same time permits the flexibility that the standards of care contemplate. Annulment of Marriage Despite excellent lawyering, a court may follow the majority of courts and invalidate the client's marriage. What does this mean for custody? Under early American law, when a marriag~ was invalidated or annulled, courts did not divide property or determine cus-tody as they would in a divorce. Instead, these courts attempted to return parties to their "original" positions. This meant that property (which, at the time, included children) was returned to the property holders, who were men. As a result of such injustices, modern doc-trine provides that, for purposes of determining property division, support, and custody, annulment should be treated just like divorce. See, e.g., 63 A.L.R.2d 1008 (West 2002). Crucially, then, non-biological, transgender par-ents should not lose their legal rights to their children simply because their mar-riage has been annulled. Advocates representing transgender spouses and parents should be prepared to assert this doctrine in the event that clients are denied legal recognition of their gender. In the worst case scenario, one in which a court rules that a trans-gender client is not a legal parent, the doctrine of functional parenthood may provide protection if the jurisdic~ion decides to follow the recent rulmgs by the highest courts in Massachusetts and New Jersey. Both courts held that, although the litigants had not adopted their partner's child, the nonbiological lesbian mother in each case was a full legal parent of the child. E.N.O. v. L.M.M., 711 N.E.2d 886 (Mass. 1999); \I.e. v. M.}.B., 748 A.2d 539 (N.J. 1999). Pointing out that the doctrine applies to any person who meets the criteria, each court arrived at a similar, carefully crafted set of standards for determining function-al parenthood-standards that most active parents should be able to meet. Taylor Flynn is an assistant professor at Northeastern University Law School. She was formerly a lawyer for the American Civil Liberties Union of Southern California, where she litigated several transgender rights cases. Human Rights 

Western New England University School of LawDigital Commons @ Western New England University School ofLawMedia Presence Faculty Publications1-1-2003Protections for Transgender EmployeesJennifer L. LeviWestern New England University School of Law, jlevi@law.wne.eduFollow this and additional works at: http://digitalcommons.law.wne.edu/mediaPart of the Labor and Employment Law Commons, and the Sexuality and the Law CommonsThis Article is brought to you for free and open access by the Faculty Publications at Digital Commons @ Western New England University School ofLaw. It has been accepted for inclusion in Media Presence by an authorized administrator of Digital Commons @ Western New England UniversitySchool of Law. For more information, please contact pnewcombe@law.wne.edu.Recommended Citation30 Hum. Rts. 12 (Summer 2003)Human Rights 12 Summer 2003 ly law that will promote the best inter-ests of the children involved. 1iffu~;·L: Rli-;;';~~-;~·the legal direc~;;;'-;hhe Center for Lesbian and Gay Civil Rights, located in Philadelphia, Pennsylvania. Transgender Employees continued from page 72 prongs is entitled to protectio~ under . the state disability discrimination proVI-sions. Several state human rights com-missions across the country, including Connecticut, Florida, Illinois, Massachusetts, and New Hampshire, have interpreted state disability laws to include transgender people. Some transgender people experi-ence gender dysphoria (generalized discomfort or unease about birth gen-der) and, as a result, can easily demonstrate that they have an "impairment" under the terms of the relevant state statutes. At the same time, they may be uncomfortable about embracing a psychiatric diagno-sis, which still carries the possibility of stigma in some areas of society. Even among those in the transgender com-munity who reject the psychiatric . model, most do not reject the premise that being transgender is likely a med-ical condition caused by biological factors that are not yet fully under-stood-and a growing body of scien-tific research supports this conclusion. Many trans gender employees face discrimination in the workplace. Lawyers may look to several sources of law in order to redress the rights of transgender clients who face adver~e treatment in such situations, includmg transgender-specific nondiscrimination laws, state and federal sex discrimina-tion laws, and state disability laws. Although courts historically have found transgender people excluded from coverage under certain laws, developing case law supports the argu-ments of transgender employees who face workplace discrimination. Jennifer Levi is a senior staff attorney at Gay & Lesbian Advocates & Defenders Summer 2003 (GLAD). She works on a wide range of cases defending the civil rights and civil liberties of gay men, lesbians, and trans-gender people. She was lead coun~el in the case of Doe v. Yunits, representmg a transgender student denied the right to attend school because of her clothing. Transgender Families continued from page 73 nas but not penises, reliance on surgery in this situation would have a starkly differ-ent impact on trans women than trans men. In view of these considerations, the judge in Kantaras declined to hold that phalloplasty is required for a transgender woman to be recognized as legally male, since any such requirement would be at odds with current medical knowledge and practice. In contrast, in the Chicago case, the trial court relied on the "lack" of genital reconstructive surgery to declare Sterling S. to be legally female, desp.ite his male gender identity, extensive medical treatments, and twenty-plus years of living and being accepted as a man. That the court's decision in Kantaras was shaped by expert medical testimony strongly suggests that providing such medical data is advisable to ensure that courts have the information they need to make informed decisions. The fact that the opinion was 800 pages long raises questions, however. If courts require extensive expert evidence and undertake detailed, individualized inquiries into a person's medical history, what recourse exists for clients who do not have access to experts or adequate medical care~ Will certain surgeries or hormonal therapies become required? What if the client does not believe medical treatment is appro-priate for him- or herself? While courts desperately need the kinds of information provided to the judge in Kantaras, that court's complex, highly medicalized inquiry has the potential to create almost as many problems as it solves. The better approach is for courts to point to the medical standards of care, which conclude that sex is determined by gender identity: the court then needs only to look to the person's gender identity to determine his or her legal sex. Recognition of gender identity should provide the law with a consistent, relatively simple 23 approach that accords with medical~y accepted standards yet at the same time permits the flexibility that the standards of care contemplate. Annulment of Marriage Despite excellent lawyering, a court may follow the majority of courts and invalidate the client's marriage. What does this mean for custody? Under early American law, when a marriag~ was invalidated or annulled, courts did not divide property or determine cus-tody as they would in a divorce. Instead, these courts attempted to return parties to their "original" positions. This meant that property (which, at the time, included children) was returned to the property holders, who were men. As a result of such injustices, modern doc-trine provides that, for purposes of determining property division, support, and custody, annulment should be treated just like divorce. See, e.g., 63 A.L.R.2d 1008 (West 2002). Crucially, then, non-biological, transgender par-ents should not lose their legal rights to their children simply because their mar-riage has been annulled. Advocates representing transgender spouses and parents should be prepared to assert this doctrine in the event that clients are denied legal recognition of their gender. In the worst case scenario, one in which a court rules that a trans-gender client is not a legal parent, the doctrine of functional parenthood may provide protection if the jurisdic~ion decides to follow the recent rulmgs by the highest courts in Massachusetts and New Jersey. Both courts held that, although the litigants had not adopted their partner's child, the nonbiological lesbian mother in each case was a full legal parent of the child. E.N.O. v. L.M.M., 711 N.E.2d 886 (Mass. 1999); \I.e. v. M.}.B., 748 A.2d 539 (N.J. 1999). Pointing out that the doctrine applies to any person who meets the criteria, each court arrived at a similar, carefully crafted set of standards for determining function-al parenthood-standards that most active parents should be able to meet. Taylor Flynn is an assistant professor at Northeastern University Law School. She was formerly a lawyer for the American Civil Liberties Union of Southern California, where she litigated several transgender rights cases. Human Rights 

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Protections for Transgender Employees

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