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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.

Wednesday, September 6, 2006

Dress Codes and Gender Transition

This recent article from Law.com discusses court cases involving dress codes. The importance of this, in regard to transgender employees, is that part of the gender transition process requires violating gender-normative dress codes.

The article starts with a discussion of the case of Darlene Jespersen, a female bartender at Harrah's Casino, who was discharged for refusing to wear makeup. The federal Court of Appeals for the 9th Circuit recently reversed itself and held that a dress and grooming policy based on sex stereotypes violates Title VII of the Civil Rights Act of 1964. Does that mean that a man can come to work wearing eyeliner and a tasteful lipstick? Yes, if you're going to be logical about it.

Based on this decision, it appears that decisions such as Doe v. Boeing, (64 Wn. App. 235, 823 P.2d 1159 (Wash. 1983)) are out the window, at least in the 9th Circuit. The Doe case ruled that, in the State of Washington, a transgender employee undergoing gender transition could be terminated for failing to conform to the employer's dress code of their former sex.

But court rulings can be Delphic in their interpretation. How this is going to mesh with non-discrimination statutes prohibiting discrimination on the basis of gender identity is anyone's guess. I mean, sex stereotyping is perforce a part of U.S. dress codes as currently written, with one for men and one for women, whether you work at an accounting firm, a production line or Hooters.

By the way, the article is written by Judith A. Moldover, of counsel to Ford & Harrison, which has a killer website with lots of info and products about employment issues.

Speaking of law firms, if you're going to be in Chicago on October 19, Jackson Lewis, a major employment law firm, is having a seminar called "Sexual Orientation and Gender Identity: The New Frontiers of Employment Discrimination Law."

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