Legal Advisor

Transgender Docket

By Carolyn Woodward
Got a legal question? Having some problems with the law? TG Attorney Carolyn Woodward will try and answer your questions. Contact her by messaging publisher Cindy Martin and we'll make sure she gets your question.


Q: "I've been pulled over for a speeding violation by a police officer and are dressed. What should I do and what can they do to me?"

A: What you should do is the same thing you would do if you were pulled over dressed as a male. You give the officer your license (your REAL license, for those of you foolish enough to have fakes) and registration, be courteous, and sign the ticket with your real name. Above all, don't panic.

Remember, the only thing you have done which is illegal is to speed.

Crossdressing is perfectly legal (at least in Calfornia and most states), just a bit different from the societal norms. It is possible that the officer may be a little suspicious (it is their job, after all), or curious, and ask you some questions about your attire. Technically, you don't have to answer those questions (or any questions really, particularly about the speeding), but that will only make the officer more suspicious, annoyed, and possibly encourage him to try and come up with something a bit more serious.

Answer his questions about why you are crossdressed. It will make the transaction easier for both of you, and it will educate one more person about us - and educating people about us is a good thing. "And if the officer is a complete jerk," you ask? I recommend the same advice, and try to ignore any inappropriate threats or comments. The police are not allowed to harrass, search, or arrest you for crossdressing, and most, even the occasional jerks, won't do more than make a comment or two.

Q: "You have informed your employer that your are a transexual and plan on having a sex change. The employer informs you that this is not a problem but several months later as the physical changes become obvious you are suddenly fired. Do you have any recourse?"

A: The answer to this is a resounding "maybe." Under the various laws prohibiting employment discrimination on the basis of sex, you are without recourse.

Depending, however, upon the content of the conversation with your employer, you may have a cause of action for breach of an express or implied employment contract.

A little background may be appropriate here. The general rule is that, except for certain criteria (ie. sex, race, religion, national origin), an employer can fire an employee "at-will." This means what it sounds like. An employer can dismiss an employee for no particular reason. (There are certain bad-faith issues which can be considered, but I don't want to make this more complicated than necessary.) Another exception to the "at-will" rule can be found in the area of employment contracts. This could be a collective bargaining agreement such as those found in union organizations, or an employee handbook which sets out certain policies regarding termination or retention, or your own negotiated agreement which you set out in writing at the time you were hired or promoted to your present position. These are express contracts. The terms of employment, and often grounds for termination, are clearly set forth. If you sat down with your employer, told him your situation and concerns regarding your employment and he assured you that you would not be fired for transitioning on the job, you have an express contract. Your employer has clearly stated that transitioning would NOT be grounds for termination.

What if it did not quite go like that, but instead you approached your boss and what he actually said was that it was not a problem, then even though not clearly spelled out, the contract could possibly be implied from his conduct or words. If you know of another transexual who transitioned in the company, and was not fired for it, this also establishes an implied agreement.

One more possibility comes to mind, and this is the concept of detrimental reliance. If you told your boss you were planning this, but did not intend to transition at this time unless it were all right with him, and he indicated it would not be a problem, then you may be able to avail yourself of this theory of relief. This may be available because you changed your position, did something you would not then have otherwise done, in reliance on his assurance it would not pose a problem. Oh, and before someone comments that transitioning is NOT detrimental, but something positive, let me explain that detriment is a term of art. It simply means that a person has done something they did not have to do, refrained from doing something they had a right to do, or given up something they had a right to keep as a result of a negotiated or implied contract term.

One word of warning here. I don't normally practice in the area of employment and labor law, and what I've said is based upon limited information and general principles of law. My last advice would be to discuss these, and any possible other options, with an attorney who specializes in this area, and be prepared to discuss the matter in great detail. Each situation is different, and a detail forgotten can sometimes make a tremendous difference in the outcome of a matter.


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