Gender Passing

Nicole at Sui Generis and Lindsay write about a court decision in Westchester County, New York, that says that transgendered people are protected from discrimination under the state’s human rights law. The judge says that although transgendered people don’t constitute a protected class, discrimination on the basis of sex is still prohibited, so firing a man from his job because it was discovered that he was anatomically female is illegal.

There erupted a lively debate on both linked blogs, with Lindsay supporting the decision and Nicole opposing it. Nicole argues that although trans people should be protected under the law, they’re not, so it’s legal to fire them because they’re trans.

But by the same token, the law doesn’t explicitly state that black people who pass for white are a protected class of people. Although I don’t know of any case law involving a person who got fired for passing as a different race, I’m certain that in such a case, the judge would strike it down as a blatant case of racial discrimination.

So how is gender passing any different from racial passing? While they have very different causes, legally it doesn’t matter. It’s conceivable that people are being discriminated against solely for passing, while at the same it’s considered racist to do that; hence discrimination against people who pass as another gender should be unambiguously sexist.

14 Responses to Gender Passing

  1. Nicole Black says:

    (This comment was cross-posted at Majikthise)

    That’s a great analogy–one that I hadn’t thought of. And, it might very well change my position on this issue. But, only in this situation:

    Person A is black or a woman
    Person A manages to be perceived to be white or a man
    Person A’s true identity is discovered
    Person A is fired *because* Person A is black or a woman.

    Thus, Person A is fired because the employer is either a racist or sexist and didn’t want a black person or woman working for him/her. In other words, Person A was not fired because s/he engaged in deceit or disruptive behavior, but rather because his/her original/true state (black or a woman) was undesirable. In that case, the termination would be based on discriminatory animus and thus illegal.

    However, if the termination occurred because the employer wasn’t accepting of the behavior of hiding one’s race or gender, then I don’t think that it’s illegal under the NY Human Rights Law as it now exists, since the termination was not based upon discrimination against Person A for being a member of a protected class.

  2. SLC says:

    The “guy” may actually be a true hermaphrodite and have the sex organs of both genders (in this case the male organs would be internal). There was a case I read about several years ago which described a boy who started bleeding once a month from his behind after reaching the age of 13 (the case occurred before the use of X-RAYS). Doctors could find nothing wrong. This situation continued until he reached the age of about 43 when it mysteriously ceased. In the meantime, he had married and fathered several children. When he died, an autopsy showed that he had normal ovaries and a uterus, with a birth canal exiting into the large intestine.

  3. Alon Levy says:

    Nicole, in neither case is the behavior really disruptive. The only grounds for dismissal come from crypto-racism or crypto-sexism: if an employee is black then his white coworkers can treat him accordingly – for instance, not invite him to their house, not tell him what they think about affirmative action, et cetera; if an employee is female then her male coworkers can avoid talking to her about dating and socializing with her in a way they only will with men.

    The only other possibility I can think of is crypto-homophobia, but this only applies if the rift came after the transman was romantically involved with a female coworker. Since this does not seem to be the case, crypto-sexism is the likelier explanation for the harassment.

    I don’t know if as SLC says this person is hermaphroditic in some sense, but if he is, then he definitely falls under the protected class of sex.

  4. Bryan says:

    There mighr be situations where firing someone for getting caught “passing” may be acceptable. I can’t think of an example right now, which doesn’t help my argument much, but there might be certain jobs where someone could reasonably be fired if they weren’t the expected gender. A job where a man passing as a woman who was then revealed to be a man would make his/her female clientele uncomfortable. Can anyone think of a position like this?

    Also, someone who would lie about gender/race may be considered untrustworthy. Of course, this only matters if one considers gender/race to be important in the first place and is thus very easily disputable.

    I don’t know, when I read it first I would have agreed with you right away, Alon, but I’ve been thinking about it and it may be justifiable under certain circumstances. I’m just not entirely sure yet what those circumstances are, but I’m kinda thinking out loud here.

  5. Nicole Black says:

    The law right now in NY is that you’re an employee of right. You can be terminated for any reason whatsoever, as long as you’re not terminated as a result of discrimination resulting from your belonging to a protected class that si specifically enumerated in a state, federal or municipal statute.

    So, you can be terminated if you refuse to follow a ceratin dress code, for example. Or, if you behave innappropriately . Or, if you look at your boss the wrong way.

    But not because your boss doesn’t like black people, women, Jews, whatever.

    The issue isn;t whether the behavior is disruptive. That’s just one example of a valid reason to fire someone. The issue is whether the terminated employee belonged to a protected calss and was terminated because of that status.

    In this case, IMO, it’s only discirmination under the current NY statute if she was terminated because of her status as a women–not her status as a transgendered person. It doesn’t fall w/in one of the enumerated protected classes in the statute.

  6. Kian says:

    (I dont get how a trans can’t be classified as a person. They still have a sex, or they might be duper lucky and have 2 sexes. …)

    At Jack Astors, TJ Baxtors and Barney’s Im fairly certian its mandatory to be a strikingly hot blonde with a hot ass to work as a waitress.

    At the place I worked this summer the owner of the store (it was an independant place…not a huge corp) said only girls could work the front end. (He also added a lot of other silly things, no peircing [he didnt like me], tattoos…etc)

    These aren’t necessarily acceptable positions like Bryan is talking about… however, if I found out my gyno was actually a women, I wouldn’t really mind or anything, but I specifically checked a box asking for a man. That could really bother *other* people, however. I’m not sure if it would constitute as grounds for termination…I’m fairly certain in Canada it wouldn’t.

  7. Alon Levy says:

    Bryan, I’m actually pretty torn on firing people based on what the clientele wants. In her series on the wage gap, Echidne explains that part of it comes from certain service jobs reserving the higher-paid positions for men because that’s what rich clients want. She singles out restaurants, where sexism on the part of clients of high-end restaurants leads them to hire mostly male waiters; therefore, male waiters can make more than female ones in tips, simply because they serve pricier food.

    I suppose that in these systematic cases at least, anti-discrimination laws need to be applied even against the customers’ desires, just as anti-segregation laws were applied often against the wishes of a white clientele that wanted to keep blacks out.

    But then again, it doesn’t matter that much in this case, since the transman in question was a cook rather than a waiter. The discrimination he faced was, in a way, on the basis of sex as well as sexual orientation. Although in my post I concentrated on sex, the fact that sexual orientation is a protected class is important, since in general people protected under it are LGBT rather than just LGB; the judge’s ruling claims that in previous cases, courts ruled that New York City’s human rights law protected not just women and LGB people but also trans people.

    If I’m not mistaken, forms of discrimination that could be interpreted as racist or sexist are still considered illegal. You probably know this better than I do, but can an employer fire anyone for having a non-English, or non-Christian name? Strictly speaking this is not discrimination on the basis of national origin or religion, since I’m free to change my name to Jack. That case is analogous, since discriminating against someone for being anatomically female given that his gender identity is male is in a way a discrimination on the basis of sex, just not a direct one.

  8. Nicole Black says:

    The relevant law for nY can be found here :
    http://www.nysdhr.com/hrlaw.html#296

    It’s pretty self explanatory, I think.

    The relevant portion of the law reads as follows:

    § 296. Unlawful discriminatory practices.

    1. It shall be an unlawful discriminatory practice:

    (a) For an employer or licensing agency, because of the age, race, creed, color, national origin, sexual orientation, military status, sex, disability, genetic predisposition or carrier status, or marital status of any individual, to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment.

    So, if one is discriminated against *because* they happen to fall within one of the listed categories, then the discrimination is illegal.

  9. Bryan says:

    I think (correct me if I’m wrong) that the problem here is that you’re essentially having separate debates. Lindsay and Alon are on the side that this practice is wrong and should be illegal, whereas Nicole is arguing that the practice may or may not be wrong, but isn’t illegal and thus shouldn’t be punished. It’s the ideal vs. pragmatism.

    If we’re arguing solely based on the facts of the case and current law, then Nicole is right and nothing done was wrong. The law is pretty self-explanatory, and I can relate, being from Connecticut where the law is very similar. You can be fired for pretty much anything so long as it doesn’t fall under that list. You don’t even need to give an explanation. (Unless the person being fired is union, but that’s another story and they’ll probably never be fired.)

  10. Bryan says:

    Want to clarify briefly that I do think the law ought to be changed, but as it stands I’m not sure if anything done was wrong from a purely legal standpoint in this case. Morally, ethically… well, then things might be different.

    Alon, in the situaiton I described where I was talking about the potential problem caused by gender misidentification, I was thinking more of a situation like the one Kian described – what if your OB/GYN was a man passing as a woman or vice-versa and had been decieving you? If there is a situation where someone is trusting that the person they are working with is male or female, especially in intimate, personal environments, it can be very harmful to the relationship to discover that you’ve been misled. There are situations where this could be genuinely uncomfortable and this violation of trust might warrant a firing if the workplace had been suitably disrupted.

  11. Nicole Black says:

    Bryan–I think you’re assessment of this debate is right on. But, to clarify my position-I do thinkthe conduct alleged iis wrong and that the law should be amended to include this class of people. But, as it stands now, I think the conduct alleged is *legal* in that being there is no cause of action for discriminatory termination under the current law. It’s for that reason that I think the law should be amended.

  12. Alon Levy says:

    Well, both Lindsay and I contend that the decision is correct even from the purely legal standpoint. The judge cites fairly extensive case law, not from New York State, but from New York City from the time when its human rights law only covered sex and sexual orientation, but not trans status. Coming to think of it, it makes a fair amount of sex given that “transgendered” is generally considered to be a class protected by virtue of its sexual orientation.

    As for the deception of someone I trust, it greatly depends on how well I know him/her. I’ll fully understand if someone chooses to hide his/her trans status from me unless we know each other very well, well enough for that person to know I’m among the last people in the world to fear discrimination from. In a casual work atmosphere, the level of trust is normally fairly low, so this revelation wouldn’t involve any breaking of trust.

  13. Bryan says:

    But Alon, like I said, I’m talking about more intimate environments than a “casual work atmosphere.” If I specifically request a male doctor, I expect a male doctor. If my doctor turns out to be a pre-op transguy, I might feel a little uncomfortable with not having known this. It’s an extreme case, but it’s one where we can’t across the board rule out something like this making a certain degree of sense.

    I think I’m bumping into another problem with sex v. gender v. sexual orientation. Where does trans fall? If a transguy is pre-op, he’s biologically female, thus sex = male, gender = female, sexual orientation = straight, queer, etc. I’m just personaly unclear over where I feel trans falls in with any of those prexisting categories as I’ve typically seen them defined, where sex is biological, gender is ideological, and sexual orientation is sexual object choice.

  14. Alon Levy says:

    We can’t rule this out, but there has to be some limit. Otherwise, you’d see a lot of people suddenly request doctors of their own race, which would in effect send the medical profession back to the segregation era. Though I presume that you can make certain exceptions for gender in suitable cases because of its biological basis – for example, OB/GYNs, psychiatrists, maybe even divorce lawyers.

    Although the categories you use are better than the traditional male/female bifurication, they’re still excessively rigid at some point. Gender and sexual orientation are both continua, although for obvious reasons pretty much everyone seems to identiy as either male or female.

    That said, legally sex and gender are largely the same thing. It’s illegal for an employer to underpay women as well as to underpay biologically female persons. Similarly, trans status and het/bi/homo status seem to both fall under the legal category of sexual orientation, or else the phrase GLBT/LGBT wouldn’t evolve in the first place.

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