The law throws trans workers a bone
Smith vs. Salem provides chance of recourse for fired trans
workers

By Dawn Wolfe
Pride Source
Originally printed 10/14/04 (Issue 1242 )

http://www.pridesource.com/article.shtml?article=9875&section=ne
ws

Even though, at present, neither state nor federal law protect
workers from being discriminated against because of gender
identity or orientation, a Federal case decided this past August
offers trans folk the possibility of suing employers who fire
them for expressing their gender.

According to Heather Sawyer, the Supervising Attorney for Lambda
Legal's Midwest office, Smith vs. the City of Salem was a
"tremendously positive ruling for the LGBT community and also
for all employees in that sense that it really reinforced that
an employer's use of sex stereotypes - any belief about how a
man or woman should look or dress - is unlawful discrimination."

Sawyer continued, "This also includes people who are
transgendered or transsexual or are gender non-conformists. It
can help a man who is seen as not masculine enough, or a woman
who is seen as not feminine enough. This will be tremendously
important for employees who will be able to be who they are in
the work place, at least as far as gender identity goes."

However, the court decision doesn't guarantee victory; trans
folk who are fired due to discrimination must take their case to
court.

"We'll have to see what happens at the trial," said Sawyer.

Still, Smith remains a landmark ruling for the trans community.
"The important thing is that prior to this decision employers
were arguing that if someone was perceived or was gay, lesbian
or transsexual, that they could discriminate under Title VII,"
Sawyer said. "In the case with the Smith plaintiff, who was an
MTF, what they were saying to that client was, 'you're not
masculine enough.' The employer argued that this wasn't what
Title VII was meant to reach." In disagreeing with the employer,
the court provided the potential of Title VII protection to
transgender workers.

However, there is still disagreement as to whether the Smith
decision can also be used by workers who have been fired due to
their orientation as opposed to their gender identity.

According to Triangle Foundation Executive Director Jeff
Montgomery, "Before we know if it will cover gays and lesbians,
someone actually has to try to use it for that purpose. If you
talk to five different legal people, you'll get five different
opinions. It could fly in some circuit court in Michigan, in
another it might not work."

"Overall, it's a great decision, even if it 'only' stops at
protecting trans people," he added.

According to Sawyer, while there are no guarantees, the Sixth
Circuit's decision might benefit transgender workers in
Michigan. "In Michigan, the state law is similar in that it
protects people based on discrimination based on sex, but
doesn't include sexual orientation or gender identity," she told
BTL.

"But obviously the sixth circuit ruling - the same principles
behind that ruling should be applicable to how decisions are
made under state law. We'll have to see how state courts use
that ruling to decide," she continued.

Sawyer urged all LGBT people to know the employment laws in
their area. "Sometimes there are municipalities that have
enacted broader human rights laws," she said. "Some of them may
include gender identity. If you are living or working in those
towns there are additional protections ... to help protect you."

Sawyer was adamant in explaining the importance of providing job
protection to transgender - as well as lesbian, gay, and
bisexual - workers. "This is not about special rights - it's
important to understand that what these laws do is allow people
to do their job and be evaluated on their performance and not on
someone's idea as to whether they are masculine or feminine
enough."

Neither Montgomery nor John Allen, a Detroit attorney who works
on LGBT employment-related cases, were aware of any suits filed
yet in Michigan on behalf of workers hoping to use the Smith
decision to contest employment discrimination here.

"That doesn't mean it hasn't happened, but people file stuff
every day," Montgomery said.

But Allen added, "It's been so early that no one has
specifically used it as far as I know."

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