The Transsexual & Employment Discrimination
By David E. Tolbin, Esq.
Advisor to THE GATHERING
There appears to be no successful challenge by any transsexual alleging employment discrimination under the Civil Rights Act of 1964 (specifically Title VII of the act.) It would appear at first blush that this statute would be favorable and protective of transsexuals in the employment sector. We. know that the law prohibits discrimination on the basis of race, color, religion, sex and national origin. Our federal courts, however, have consistently ruled that Title VII's prohibition on sex discrimination does not apply to or protect transsexuals as such. Only one trial court in the Northern District of Illinois held that the statute protects transsexuals.
That case was ULANE vs. EASTERN AIRLINES, INC. 581 F.Supp. 821 (N.D.Ill 1983). The court ruled that Eastern Airlines Inc. had discriminated against Ulane, a transsexual, as a transsexual and a female. Eastern Airlines Inc. appealed the case to the U.S. Court of Appeals which reversed the lower courts' ruling.
A Federal District Court applying state law in a diversity of citizenship case ruled that Pennsylvania Human Relation Act's ban on sex discrimination would not apply to an employee who was terminated subsequent to surgery to correct a hermaphroditic condition. WOOD v. C.G. STUDIES INC. 600 F.Supp 176 (E.D.Pa 1987).
We now know that the Federal Courts do not view transsexuals as those protected under Title VII's ban on sexual discrimination.
Those of us who have some knowledge of the path of a discrimination case will ask why look first to the Federal Courts? Shouldn't we look first to the Equal Employment Opportunity Commission? What is the function of this governmental agency more commonly known as the EEOC? The EEOC is the U.S. Governmental Agency charged with the responsibility of enforcing Title VII. The EEOC, which is almost involved before the claim becomes a case, has ruled that prohibition against sex discrimination refers to gender at birth and not to the individuals who have undergone a sex change operation. (Please note that the EEOC has precluded reasoning that the law applies to gender at birth. This is a very important area where we must disagree.)
In disagreeing with the EEOC's ruling, I urge that a transsexual is a male or female at birth but because of a prenatal hormonal imbalance appears to be that of the other gender. Accordingly, a transsexual's argument is that she (or he as t,he case may be) is actually of the gender at birth they allege and that feelings, thoughts, emotions and one's own decision as to who one is and supported by their psychologist and psychiatrist should be conclusive or at least persuasive to the EEOC and the courts.
The EEOC's talk of sex-change operations I find erroneous in that science and medicine with all its advancements and achievements can not to this day make a male a female or a female a male. This is too simplistic, misleading and more. It is actually reassignment surgery which is life saving so that an individual may be at peace and a productive member of society. How wrong it is for any agency or persons who don't understand the difficulties, suffering and sacrifices that a transsexual must endure before and even after surgery to term the operation a "sexchange." Can we take any man or woman at random from the population and without any more than an operation MAKE this person into the opposite gender? Certainly not! Likewise and carrying my reasoning further we must try to change and t educate others, so once a transsexual completes the reassignment surgery that person is called a woman or a man as the case may be, and not a transsexual. When I write of reassignment surgery, I mean that the transsexual has undergone a period of probation of at least one year, preferably two, has been given a psychiatric examination, psychotherapy and counseling before surgery.
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