"All people are not heterosexual. Heterosexuality is not superior and is not the norm by which all other sexual orientation and gender identities are measured." --Burnaby, B.C. Schools Draft Policy #5.45

Monday, May 2, 2011

Enriquez v. West Jersey Health Systems

This New Jersey Superior Court decision has two parts.  The more interesting part is the holding that discrimination against transgender people is discrimination based on stereotypes about how one or the other sex should act.

The unwholesome part is the holding that "gender dysphoria" is a disability under New Jersey's anti-discrimination law, no matter how broad minded that statute and its interpreting case law were intended to be.  Being transgender is not a disorder; it shouldn't have a special name; it shouldn't be in the American Psychiatric Association's diagnostic manual; and it shouldn't be appearing in New Jersey case law as anything but an ordinary way of being human.  

Enriquez v. West Jersey Health Systems, 777 A.2d 365 (New Jersey Superior Court 2001).

Summary: Doctor was born male.  Hospital hired Doctor to be the director of its outpatient facility. Doctor and Hospital signed a contract, which either party could terminate with 90 days notice. About a year later, Doctor began to transition from male to female. Three Hospital Executives confronted Doctor regarding their discomfort over his changing appearance. One Hospital Executive demanded Doctor resume previous male appearance. Doctor was diagnosed with gender identity disorder. Hospital gave Doctor ninety-day notice of termination, saying that outpatient facility was going to be under control of Other Corporate Group, and that Doctor would be contacted about signing a new contract with Other Corporate Group. Other staff all became employees of Other Corporate Group. Doctor contacted Hospital Executive about signing a new contract, but was given mixed signals. Hospital Executive said, "No one is going to sign a contract with you unless you stop this business that you're doing", but also said that he, Hospital Executive, would "try to work things out". Shortly thereafter, Hospital Executive gave Doctor a termination letter. Doctor had sex change operation and changed her name. Doctor brought lawsuit against Hospital for (1) disability discrimination, and (2) gender discrimination, both under New Jersey's Law Against Discrimination (LAD). Hospital moved for summary judgment to dismiss disability discrimination claim. Trial court granted motion, holding that transsexualism is not a disability under LAD. Hospital moved for summary judgment again, on the gender discrimination claim. Trial court again granted the motion, holding that LAD doesn't protect transsexuals. Doctor appealed.

Holding: Reversed and remanded to trial court.

(1) Discrimination against people with "gender dysphoria" under LAD is impermissible discrimination on the basis of a disability. LAD requires (a) a mental disability (b) that prevents normal use of bodily or mental functions, or (c) is provable by "accepted diagnostic techniques". Gender dysphoria is a "mental disorder". The recognition of gender dysphoria in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders is proof that it can be "diagnosed by accepted clinical techniques". (LAD does permit discrimination against people with disabilities if the disabilities render them "reasonably" unable to do their jobs. Here, gender dysphoria did not interfere with Doctor's job performance.) Under LAD, the disability need not be severe. LAD proscribes discrimination "against those suffering from any disability".  LAD, unlike anti-discrimination laws in other states, does not require that a disability restrict "major life activities". LAD also recognizes obesity, alcoholism, and substance abuse as disabilities.  [Court also says there must be proof of distress, in order to meet "mental disability" element of statute.]

(2) Discrimination against transgender people is sex stereotyping, and is discrimination on the basis of sex under LAD.
     (a) LAD bars sex discrimination. Title VII of the federal Civil Rights Act of 1964 also bars sex discrimination. The US Supreme Court at first interpreted "sex" (in Title VII) only to mean discrimination based on the fact of being male or female, and did not include discrimination based on stereotypes. However, in 1988, in a case significant for transgender law, the U.S. Supreme Court decided in Price Waterhouse v. Hopkins, that sex discrimination includes sex stereotyping. LAD should be interpreted that way, too.  (In Price Waterhouse, a woman was denied partnership in a large accounting firm because she didn't act in a way other partners regarded as feminine.)
     (b) Other state courts are split on whether sex discrimination includes transgender people, under their own anti-discrimination statutes. One court said discrimination against transgender people is impermissible sex discrimination because it is like discrimination on the basis of secondary sexual characteristics.  Those cases holding that transgender people are included are more persuasive.
     (c) There are previous New Jersey court decisions on sex stereotyping. In Zalewski v. Overlook Hospital, 692 A.2d 131, the court found sex discrimination when a group of heterosexual males harassed another heterosexual male for not being masculine enough. In MT v. JT, 355 A.2d 204, the court wrote that sex included the idea of gender, and that gender was broader than anatomical sex.  These cases point in the direction of interpreting "sex" to include sex stereotyping. 

This case is on Google here.     

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