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This is not legal advice, which can only be given by an attorney admitted to practice law in your jurisdiction after hearing all of the facts and circumstances in a particular case.

Monday, April 17, 2006

News: Cincinnati ordinance blocked

While it might seem that the progress of law towards protection of transgender people is inexorable, it is not. A couple of weeks ago, I posted about the passage of a Cincinnati law extending employment protection on the basis of transgender status. An opposition group has blocked the change from taking effect by asking that the matter go before voters.

As noted in my prior post, the Cincinnati law is interesting because the protected class definition is unusual. According to Gary Wright, of Equality Cincinnati, the definition is:

"'Transgendered' shall mean the condition or state wherein a person manifests gender characteristics, behavior, and/or self-identification typical of or commonly associated with persons of another gender, and which may be characterized by assumption of the clothes, hairstyles, cosmetic usage or other appearance qualities commonly associated with another gender and/or by the surgical or medical modification of primary sexual organs in order to assume the gender role of another sex.

This is interesting because most anti-discrimination statutes define the protected class as "gender identity," covering people of all gender identities, whether traditional or transgender. A statute prohibiting discrimination based on "transgender status" is rather unusual. It means that someone who was dismissed because they were not transgender would have no protection under that statute. While this situation is unlikely, it does raise the question of whether the law fails to provide equal protection to the traditionally gendered. [For the legally inclined, see Hyman v. Louisville, 132 F. Supp. 2d 528 (2001).]

The Cincinnati definition is similar to others to the extent that it contains the usual tri-partitite reference to gendered identification, self-expression and appearance.
  • "Identification" means referring to oneself as male, female or other
  • "Expression" means masculine/feminine body language, gait, and communication style, etc.
  • "Appearance" covers gendered items like beards, short hair, makeup, heels, etc.
Thus, the statute covers the same territory as most other statutes on the subject, except that it only applies to transgender identity.

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