Out In The Mountains : Columns

In an important victory for the transgender community, a federal appeals court has recognized that penalizing a man for dressing “like a woman” may violate current laws prohibiting sex discrimination.

It all began on July 21, 1998, when Lucas Rosa went to Park West Bank in Massachusetts to apply for a loan. According to Rosa’s complaint, he, a biological male, was dressed in traditionally feminine attire. He requested a loan application from a bank employee, who asked him for identification. The bank employee reviewed his three photo IDs and then told Rosa that she would not give him a loan application until he “went home and changed.” She said he had to be dressed like one of the identification cards in which he appeared in more traditionally male attire in order to get a loan application.

Rosa sued the bank for discrimination; the trial court dismissed the case on the ground that Rosa had no legal claim. Rosa appealed. (Jennifer Levi of Gay and Lesbian Advocates and Defenders represented Rosa.)

In a decision handed down on June 8, the federal appeals court for northern New England reinstated the case, recognizing that if the bank teller sent Rosa home because she thought that Rosa’s attire did not accord with his male gender, the bank may have violated federal laws against sex discrimination.

The decision is significant because courts have been reluctant to use sex discrimination laws to protect transgendered people. For example, in the past, a number of transsexuals who had been mistreated by their employers sued for sex discrimination, arguing that they could not be fired or harassed simply because they didn’t conform strictly to their biologically assigned gender-roles.

This argument makes a lot of sense, and unmasks the little-recognized reality that “sex” is a complicated characteristic. Although most people fit neatly into one of two categories, male or female, there are thousands of Americans who do not, including not only transgendered persons, but the many intersex folks born with “ambiguous” chromosomal, anatomic, or other physical characteristics. To discriminate against someone who does not fit tightly into either the traditional “male” or “female” category is sex discrimination every bit as much as to deny someone a job because he or she is male or female. How can it not be sex discrimination to give an employee a glowing job recommendation one day, and then fire the employee the next, with no change in the employee’s work performance, simply because the employee was John the first day and Joan the second?

Unfortunately, most courts in the past have rejected this argument, explaining that adverse job action against the transsexual did not flow from the plaintiff’s sex, but rather from the fact that they were undergoing a transformation from one sex to another, from failure to comply with company dress code, or from “misrepresentation” of their sex on an employment application.

The First Circuit’s reasoning in this case differs slightly from the historical argument. That court seemed to focus on the potential unlawfulness of penalizing a man who dresses like a woman, but not a woman who dresses like a man (as if requiring customers to dress in conformity with their traditional gender dress code is okay as long as both men and women are subject to such requirements). Nonetheless, the decision breathes new life into the effort to demonstrate to courts that discrimination against transgendered people violates existing laws against sex discrimination, even in the absence of specific law prohibiting gender-identity discrimination.

Susan Murray and Beth Robinson are attorneys at Langrock Sperry & Wool in Middlebury. This column features timely information about legal issues of interest to our community. If you’d like to see us cover a particular topic, please feel free to write OITM or call us at 388-6356.