Monday, April 27, 2009

Fortune Small Business Magazine on Transgender Workers

Fortune Small Business magazine put out an article on transgender workers today, available on the site. Entitled "When a staffer switches genders," the subtitle emphasizes tolerance and respect: "Coping with major changes can flummox a workplace, but you can protect your bottom line and your employees by promoting tolerance and respect."

The article features the story of Tony Ferraiolo, who transitioned from female to male while working at a small business. The theme here is that such transitions can work well, though there are some issues to be ironed out. Ferraiolo, incidentally, is the founder of the Jim Collins Foundation, which provides financial assistance to transgender people for gender-confirming surgeries.

The stories of several other trans people are also mentioned, the author discusses the evolution of discrimination law, and there is an interesting sidebar discussing the steps businesses should take regarding diversity. I have a curmudgeonly little quote at the end, grousing about the importance of workplace civility. I would have liked to see some more specifics discussed about the types of issues that employers face when employee transition, but there are plenty of resources out there, Overall, I think it is wonderful that there is another article in the mainstream business press. Eventually, these will reach enough members of the business community that this issue becomes a non-issue.

The article mentions the Smith case as the first US Circuit Court to acknowledge the rights of transgender plaintiffs under Title VII. It would be appropriate to note that the first federal opinion to do so was in 1983, by Judge Grady of the Northern District of Illinois, in Ulane v. Eastern Airlines, 581 F.Supp. 821 (N.D.Ill. 1983), but his carefully written opinion was reversed by the Seventh Circuit. The first standing opinion on Title VII was in 2001, by Judge O'Malley of the Northern District of Ohio, in Doe v. United Financial Services, 2001 WL 34350174 (N.D.Ohio 2001). There were also decisions in favor of transgender plaintiffs in 2000 on statutes similar to Title VII. I was recently lucky enough to have Miranda Bernabei, who successfully argued the Smith case, as well as a number of others (see below, Doe v. United Financial and Kastl v. Maricopa College) out to Ramapo College to discuss her strategy. Her discussion of the interplay between the underlying precedents was nothing less than brillant.

In addition to the Sixth Circuit's decision in Smith v. Salem, the First and Ninth Circuits have given indications that they might rule similarly. District courts in the Second , Third , Fifth and Seventh Circuits have ruled in favor of transgender plaintiffs, as has the Federal District Court for the District of Columbia . These developments suggest that “sex” refers to more than the traditional binary distinction of sex that it once connoted. A review of the historical progression of the term “sex” demonstrates that it now includes elements of “gender”. I have an article coming out on this in the fall in the Temple Political and Civil Rights Law Review.

Here's the cases in favor of transgender plaintiffs currently. First Circuit: Rosa v. Park West Bank & Trust Co., 214 F.3d 213, 214-215 (1st Cir. 2000)(non-Title VII case), Second Circuit: Tronetti v. TLC HealthNet Lakeshore Hosp., 2003 WL 22757935 (W.D.N.Y. 2003), Third Circuit: Morales v. ATP Health & Beauty Care, Inc., 2008 WL 3845294 (D.Conn 2008); Mitchell v. Axcan Scandipharm, Inc., 2006 WL 456173 (W.D.Pa. 2006), lv. to app. den. 2006 WL 986971(W.D.Pa. 2006), Fifth Circuit: Lopez v. River Oaks Imaging & Diagnostic Group, Inc., 542 F.Supp.2d 653 (S.D.Tex.2008), Seventh Circuit: Creed v. Family Express Corp., 2007 WL 2265630 (N.D.Ind. 2007) (distinguishing Ulane), Ninth Circuit: Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000)(non-Title VII case), Kastl v. Maricopa County Community College Dist., 2004 WL 2008954 (D.Ariz. 2004); Fischer v. City of Portland, 2004 WL 2203276 (D.Or. 2004); Sturchio v. Ridge, 2005 WL 1502899 (E.D.Wash. 2005), DC Circuit: Schroer v. Billington, 577 F.Supp.2d 293 (D.D.C. 2008).