Transsexuals may state a claim under "sex" in Title VII if the claim is based on being male or female, but cannot state a claim based on transsexuality.
Friday, September 16, 2011
Transsexuals may state a claim under "sex" in Title VII if the claim is based on being male or female, but cannot state a claim based on transsexuality.
Friday, August 19, 2011
Saturday, June 18, 2011
to be finalised by December 2011 to document discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity, in all regions of the world, and how international human rights law can be used to end violence and related human rights violations based on sexual orientation and gender identity.The link to the minutes of the Human Rights Council's meeting is here.
Twenty-three nations voted in favor, nineteen were opposed, and three abstained.
Transcript of US State Department briefing on the resolution, here.
One of Ambassador Donahoe's comments in the State Department briefing:
I think it’s often expressed as an effort of, let’s say, Western countries to impose their values on more traditional cultures or different cultures. And I think what we’re seeing is that that’s a fundamental misunderstanding of what’s going on here. And our perspective is that these are core fundamental, traditional human rights. They are universal. They already exist. It’s not a matter of imposing these values on anyone. They exist and they – every individual embodies those rights. And this is simply reaffirming that regardless of one’s sexual orientation or identity, people all are endowed with these rights.
And I think that the conflicting narrative we have is between the idea that these are just core human rights for all individuals, that we are reasserting in a way that makes it obvious that they’re applicable to LGBT people versus this idea that I think is mistaken and will shown – be shown relatively soon to be an outdated idea that this is an imposition of Western values. I think that idea is losing steam, and I think more and more countries and people around the world are coming to see that these really are just basic universal human rights.
Friday, June 17, 2011
Students are expected to treat one another with civility and respect. Acts of harassment, intimidation, or bullying are not tolerated. Such acts have the effect of insulting or demeaning a pupil or group of pupils, and must be reported to the principal. Disciplinary action will be taken in accordance with the New Jersey Harassment, Intimidation, and Bullying (The policy seems to recognize that particular characteristics are targeted ("group of pupils"), but it doesn't "name the behavior", as Ms. Wiseman and Ms. Byard think is essential to be effective.
Wednesday, June 15, 2011
Monday, June 13, 2011
Saturday, June 11, 2011
Friday, June 10, 2011
Unfortunately the fears of others would destroy everything that our team of doctors, teachers, school counselors, friends and classmates had work so hard to establish. I know that it is difficult for some of you to understand the needs of transgender children. You only need to spend some time with these kids to see that they are struggling and suffering beyond your imagination only because they are singled out and misunderstood. They are just like your children and grandchildren; they have the same hopes and the same dreams.
In the fifth grade because of significant negative exposure we had to take drastic measures to protect her from harm, including splitting our family up to go in hiding and we are not the only family that has had to do so. When she was told she could no longer use the appropriate bathroom her confidence and self-esteem took a major hit. Prior to this my daughter often said, "Dad being transgender is no big deal, my friends and I have it under control." I was very proud of her. It was only when adults became involved with their unfounded fears that her world would be turned upside down. "She came to me crying and asked, "Daddy what did I do wrong? Daddy please fix this?" That is what dads do -- we fix things. I had to break her heart and say, "You have not done anything wrong sweetie, but Mommy and I do not know how to fix this, but we will try."
Continuing to single these kids out is not necessary. Having the opportunity to use the bathrooms of their true gender is essential for these kids' well being. This bill places transgender children in a position of doom and hopelessness. This bill tells my daughter that she does not have the same rights as her classmates and reinforces her opinion that she has no future.
Thursday, June 9, 2011
Tuesday, June 7, 2011
Maine public radio published a nice article on the transgender middle schooler N, who, with her twin brother J, and the rest of their family, have been lobbying against Maine's "bathroom bill", which would allow businesses to restrict bathroom use to patrons' birth sex. There is also an audio clip of the article.
(I modified this post on June 9, 2011 after worrying that some of the content in the original version could be used irresponsibly.)
Friday, June 3, 2011
(Price Waterhouse v. Hopkins-inspired question: If "sex means and refers only" to birth certificate designations of male or female, is Tennessee saying it's okay to permit discrimination against heterosexuals based on sex stereotypes?)
* * *
Monday, May 30, 2011
My paraphrase: Strictly the biological facts. Don't say gay. Don't say transgender.
The page for SB 49 in the Tennessee Legislature's well-organized site, here.
Sunday, May 29, 2011
Quotes from Ann Hopkins:
"Discrimination cases tend to get very personal, very fast."
"I offer advice reluctantly. That said, I suggested to most of the potential [discrimination case] litigants that they ask themselves: If I win, will the prize be worth the price? At what cost is litigation worth it? Is one more grade or step in the civil service hierarchy worth a year of life struggling through internal administrative processes and the EEOC? What’s the human cost in time lost to self, family, and career? Considered in the greater context of life, is this the hill to die on?"
(This quote neatly sums up the heavy personal cost of fighting discrimination in the courts and administrative tribunals. For transgender people, however, I think the answer would be "yes", because our battle isn't for one higher civil service grade. It's to be able to have a career at all--and a family, and a self.)
Title VII of the Civil Rights Act of 1964 bars employment decisions (hiring, firing, compensation, etc.) made because of sex, race, religion, and national origin.
Accounting Firm says that in a sex discrimination case under Title VII, the plaintiff has to show that there was discrimination, and has to show that the employer would have made a different decision if the discrimination had not been present. Hopkins argues that an employer violates Title VII whenever discrimination is present in the employment decision, even if it doesn't play a decisive role.
Accounting Firm's argument is that the statute requires plaintiff to show "but for" causation--but for the discrimination, the employment decision would have been different. That's not correct. Title VII was meant to eliminate discrimination both when discrimination was the decisive cause and when it was part of a mix of legitimate and illegitimate causes. Gender may not be taken into account at all when making employment decisions (except where it's a "bona fide occupational requirement").
In order to preserve employers' freedom to evaluate employees, however, the employer has an affirmative defense. If the employer can show that it would still have made the same decision for other reasons, regardless of having also inappropriately taken gender into account, then the employer will not be liable.
Other cases are in line with this decision. For example, in Dothard v. Rawlinson, 433 US 321 (1977), the Court "assumed" that it was the employer that must show why gender was a bona fide occupational requirement. In a decision interpreting the Equal Pay Act (which allows different wages for employees when the pay difference is not based on sex) the Court held that it was the employer who had to show that the wage difference was not connected to their gender.
In a parallel interpretation of the National Labor Relations Act (NLRB v. Transportation Management Corp., 462 U.S. 393, 400 (1983)), the Court said: "The employer is a wrongdoer; he has acted out of a motive that is declared illegitimate by the statute. It is fair that he bear the risk that the influence of legal and illegal motives cannot be separated, because he knowingly created the risk and because the risk was created not by innocent activity but by his own wrongdoing."
Sex discrimination under Title VII isn't the mere fact of being male or female. It also includes stereotypes about one's sex:
"We are beyond the day when an employer could evaluate employees by assuming or insisting that they match the stereotype associated with their group, for in forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes. An employer who objects to aggressiveness in women but whose positions require this trait places women in an intolerable and impermissible catch 22: out of a job if they behave aggressively and out of a job if they do not. Title VII lifts women out of this bind."
Comments at work that show sex stereotyping aren't sufficient for relief. Plaintiff has to show that the stereotyping was part of the decision-making by the employer. Here, Hopkins did so--Accounting Firm asked partners to submit comments on forms as part of its process for accepting new partners, and some of the comments were based on sex stereotypes.
The standard of proof for the employer's defense, that it would have made the same decision anyway, should not be "clear and convincing". It should be "preponderance of the evidence" (greater than fifty percent). Usually in civil litigation, like in Title VII cases, where money damages or other conventional relief is sought, standard of proof is preponderance of the evidence. Clear and convincing standard is more appropriate for circumstances in which "coercive action" is sought, such as termination of parental rights, involuntary commitment, deportation or denaturalization.
This case can be found on Google here.
Ann Hopkins' very well-written & fascinating personal account, here.
And a nice summary of the case, from Time magazine, here.
[I will include the concurring opinions soon.]
Tuesday, May 17, 2011
The two most interesting, specific, and practical parts of the policy (to me) are:
1. Requiring schools to include, in student conduct codes, prohibitions on student use of denigrating language. I assume it's already unthinkable to make prejudiced comments about other categories of people. It was in my US high school in the 1980s, but comments demeaning sexual minorities were an ordinary part of daily speech. My high school's current conduct code includes "sexual orientation". It certainly didn't include sexual orientation when I attended.
2. Appointing a staff person to be a safe contact for sexual minority students and making this known to the students. The University of Winnipeg study showed that 1 in 4 sexual minority students has no safe person to talk to in their lives, inside or outside of school. I didn't either, when I was in high school. The NCTE's statistics on transgender life in education in the States were even more appalling.
I liked this sentence so much I put it at the top of this blog.
Monday, May 16, 2011
Transgender history is also fascinating.
Sunday, May 15, 2011
The donors' arguments were that equality is a matter of "social justice", a right that government should not be interfering in, and also that it would be good for the New York economy by making New York more business friendly.
So, there's the roundabout description, but the main point is, as of this week, in New York, it's wealthy Republican donors financing a marriage equality campaign, contending against a large national activist organization, also Republicans, that fights marriage equality.
Saturday, May 14, 2011
What would the result have been had it been a Texas couple (with Littleton v. Prange hovering about in Texas case law) rather than a North Carolina couple?
This case is on the Justice Department's web site, here.
Friday, May 13, 2011
Wednesday, May 11, 2011
Report based on survey question answers from 6,450 transgender people, from all 50 states, D.C., Puerto Rico, Guam, and Virgin Islands.
Useful statistics for advocacy letters, etc. (the numbers and most of the language is drawn directly from the summary):
Kindergarten to 12th grade education:
1. 78% of transgender respondents reported some form of harassment for being transgender.
2. 35% were physically assaulted.
3. 12% were sexually assaulted.
4. 15% left school because of harassment.
1. 90% of transgender respondents reported harassment, discrimination, or mistreatment at work.
2. 47% reported being fired, not hired, or denied a promotion.
3. 26% lost their job.
4. 71% hid their gender transition to avoid discrimination.
5. 57% delayed their transition.
6. 16% compelled to do illegal work, such as prostitution or selling drugs.
1. 19% of transgender respondents refused a home or apartment.
2. 11% evicted.
3. 19% experienced homelessness at some point.
4. 2% currently homeless (double national rate of 1%)
5. Among those seeking access to a homeless shelter, 55% harassed by shelter staff or residents, 29% turned away, and 22% sexually assaulted by residents or staff.
Public Accomodations (hotels, restaurants, airports, government agencies, etc.):
1. 53% of transgender respondents harassed.
2. 22% denied equal treatment by a government agency.
3. 29% harassed by police.
1. 19% of transgender respondents refused medical care.
2. 50% had to teach doctors about transgender care.
3. Rate of HIV infection is quadruple national average.
3. 28% postponed medical care to avoid discrimination.
4. 48% couldn't afford medical care.
1. 57% of transgender respondents experienced family rejection.
Impact of Family Rejection:
1. A. Accepting families: 9% of transgender respondents from accepting families experienced homelessness.
B. Rejecting families: 26% experienced homelessness.
2. A. Accepting families: 11% had been incarcerated.
B. Rejecting families: 19% had been incarcerated.
3. A. Accepting families: 11% did sex work (or other illegal work).
B. Rejecting families: 19% did sex work.
4. A. Accepting families: 32% attempted suicide.
B. Rejecting families: 51% had attempted suicide.
5. A. Accepting families: 27% smoke.
B. Rejecting families: 32% smoke.
6. A. Accepting families: 19% used alcohol or drugs to cope with mistreatment.
B. Rejecting families: 32% used alcohol or drugs to cope with mistreatment.
The summary also has encouraging statistics on the resilience of transgender people--how they pursued employment, education, and hormone therapy in spite of the barriers.
Monday, May 9, 2011
The American Library Association has a lot of interesting information on its web pages about "challenged" books.
The information on their site that is significant for sexual minorities:
The most "challenged" book (i.e., someone wanted it removed from the school or library) of 2010 was And Tango Makes Three, the children's book about two male penguins raising a baby chick. This book was published in 2005 and was also the most challenged book of 2006, 2007, and 2008. In 2009 it was second on the list. The book was the fourth most challenged book between 2000 and 2009.
The ALA says a challenge "is defined as a formal, written complaint, filed with a library or school requesting that materials be removed because of content or appropriateness". They also "estimate that for every reported challenge, four or five go unreported".
Books with sexual minority content made the "top ten" list of challenged books every year since 2002. A book with sexual minority content was also in the number one spot in 2005. Between 1990 and 2010, there were 892 challenges based on books with "homosexual" content. Presumably that category includes books with transgender content as well.
The number of challenges is far lower than I would have guessed (even when you account for unreported challenges), given a population of about 250 million in 1990, and 310 million in 2010.
Daddy's Roommate was the second most challenged book of the 1990s. Heather Has Two Mommies was the ninth. Both of these children's books figured prominently in a controversy in New York City in 1993. New York City, under a recently-hired school official named Joseph Fernandez, had developed a multicultural curriculum which included sexual minorities, called Children of the Rainbow. The curriculum ended up not being implemented after a conservative school district revolted, and other conservative school districts, emboldened by the first, revolted as well.