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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 24, 2006

Resource: The Labor Lawyer

This new article in The Labor Lawyer addresses whether the law protects transsexuals from employment discrimination. The author says that the answer is a complicated maybe. It's geared towards a legal audience, but it's rather clearly written and some of this information is important for HR and Diversity people. If nothing else, you can hand a copy to the legal department when they disavow any knowledge of the issue.

One interesting note: the author draws a clear distinction between "transgender" and "transsexual." I discussed this distinction in a recent post. In a nutshell, the question is whether Title VII "sex discrimination" includes all "gender stereotype" discrimination, which would include all transgender employees, or specifically "sexual identity" discrimination, which would include only transsexual employees.

The author also has a useful discussion of the Minnesota bathroom case, West v. Goins. The Minnesota Supreme Court held that a statute prohibiting employment discrimination based on gender identity that differs from biological sex did not prohibit discrimination based on biological sex. The author reviews the reasoning and suggests that other courts might have a difficult time with it. The article was written before the New York bathroom case, Hispanic AIDS Forum v. Bruno, which was, in any event, a non-employment context and so perhaps not quite relevant to The Labor Lawyer. However, since the New York bathroom case merely adopts the reasoning of the Minnesota case, there isn't much to explain there.

I will post something more on this issue soon.

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