There has been some confusion about what constitutes "gender expression" discrimination. A story in the New York Times today illustrates it beautifully. This involved a case of discrimination that occurred during gay pride in New York City, when a woman was forcibly ejected from a woman's bathroom at the Caliente Cab Company restaurant, apparently because her gender expression was non-conforming. No anti-gay epithets were used. I can only guess at her sexual orientation because the article does not disclose it, but the accompanying picture caption indicates that her partner is female.
This ties into my discussion yesterday about the sexual-orientation-only ENDA. If this were a situation involving employment, would a sexual-orientation-only ENDA protect this plaintiff? Clearly not, because no explicit reference to sexual orientation was made.
The story can be found here.
