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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, July 17, 2006

Questions about Gender Identity Ordinances

Ferndale ordinance raises questions

Does it or doesn't it cover gender identity? That was the question that members of Detroit's transgender and allied community were asking about Ferndale's proposed human rights ordinance over the Fourth of July weekend. According to Jay Kaplan, staff attorney for the ACLU of Michigan's LGBT Project, the answer is: probably. And according to City Council and ordinance committee member Craig Covey, the answer is: yes."

During the holiday weekend, members and allies of the Detroit-area transgender community received emails claiming that the ordinance, which was placed on the November ballot on June 26 by the City Council, contained sexual orientation protections but left transgender people out.

The article cited here notes that the proposed ordinance forbids discrimination based on gender, and defines "gender" "as the real or perceived physical characteristics that identify an individual as male or female." It concludes that, if the ordinance is passed it would be illegal in the city of Ferndale to discriminate against someone because she or he does not look masculine or feminine enough. Kaplan said, "Looking at the definition of gender it appears that it could cover transgender persons in that it talks about perceived (gender) physical characteristics."

"We on the City Council believe the ordinance covers everyone, including transgender persons," said Covey. "This misunderstanding occurred during the four day holiday weekend, thus most of us were not available to explain the situation. If there is a need to fine-tune the ordinance, there are very simple ways to do so."

City Attorney Dan Christ declined to offer a legal opinion as to whether or not the Ferndale ordinance specifically includes transgender individuals. "It does not define transgender individuals, so I'm not sure there's uniformity of opinion if there's one definition that everybody agrees on or not," Christ said.

My personal opinion is that no one can say whether the inclusion of "perceived characteristics" is going to carry the day for a transgender employee in court. Certainly, as I've been noting in the Title VII cases, courts in Indiana, Louisiana and Utah have said that "perceived characteristics" of gender do not constitute violation of the federal employment discrimination statute. (Oiler v. Winn-Dixie, 2002 WL 31098541; Sweet v. Mulberry Lutheran Home, 2003 WL 21525058; Etsitty v. Utah Transit Authority, 2005 WL 1505610)

It's also important to note that "sexual orientation" protection may not cover a transgender employee. Most people don't know the difference between sexual orientation and gender identity, and it's very conceivable that an employer, in discriminating against a transgender employee, does so because of concerns about the employee's sexual orientation. But some courts have said that discrimination against a transgender employee cannot not violate prohibitions against discrimination based on sexual orientation. That's just what happened in Underwood v. Archer Management in 1994 (857 F.Supp. 96).

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