LEGAL BRIEFS by susan murray & beth robinson The Gender Police Rebuffed Existing law just may pro- tect some gender—benders after all. In an important victory for the transgender community, a federal appeals court has rec- ognized that penalizing a man for dressing “like a woman” may violate current laws pro- hibiting sex discrimination. It all began on July 21, 1998. when Lucas Rosa went to Park West Bank in Massachusetts to apply for a loan. According to Rosa’s com- plaint, he, a biological male, was dressed in traditionally feminine attire. He requested a loan application from a bank employee, who asked him for identification. The bank employee reviewed his three photo IDs and then told Rosa that she would not give him a loan application until he “went home and changed.” She said he had to be dressed like one of the identification cards in which he appeared in more tra- ditionally male attire in order to get a loan application. Rosa sued the bank for dis- crimination; the trial court dis- missed the case on the ground that Rosa had no legal claim. Rosa appealed. (Jennifer Levi of Gay and Lesbian Advocates and Defenders represented Rosa.) In a decision handed down on June 8, the federal appeals court for northern New England reinstated the case, recognizing that if the bank teller sent Rosa home because she thought that Rosa’s attire did not accord with his male gender, the bank may have vio- lated federal laws against sex discrimination. The decision is significant because courts have been reluctant to use sex discrimina- tion laws to protect transgen- dered people. For example, in the past, a number of transsex- uals who had been mistreated by their employers sued for sex discrimination, arguing that they could not be fired or harassed simply because they didn’t conform strictly to their biologically assigned gender- roles. This argument makes a lot of sense, and unmasks the lit- the plaintiff’s sex, but rather from the fact that they were undergoing a transformation from one sex to another, from failure to comply with compa- ny dress code, or from “mis- representation” of their sex on an employment application. The First Circuit’s reasoning in this case differs slightly from the historical argument. That court seemed to focus on The decision is significant because courts have been reluctant to use sex discrimi- nation laws to protect transgendered people. tle—recognized reality that “sex” is a complicated charac- teristic. Although most people fit neatly into one of two cate- gories, male or female, there are thousands of Americans who do not, including not only transgendered persons, but the many intersex folks born with “ambiguous” chromosomal, anatomic, or other physical characteristics. To discriminate against someone who does not fit tightly into either the tradi- tional “male” or “female” cate- gory is sex discrimination every bit as much as to deny someone a job because he or she is male or female. How can it not be sex discrimination to give an employee a glowing job recommendation one day, and then fire the employee the next, with no change in the employee’s work performance, simply because the employee was John the first day and Joan the second? Unfortunately, most courts in the past have rejected this argument, explaining that adverse job action against the transsexual did not flow from ATTORNEYS matrimonial and f2LIl_l_i_11-l.§1.Y!.-._.,..._.. the potential unlawfulness of penalizing a man who dresses like a woman, but not a woman who dresses like a man (as if requiring customers to dress in conformity with their tradition- al gender dress code is okay as long as both men and women are subject to such require- ments). Nonetheless, the deci- sion breathes new life into the effort to demonstrate to courts that discrimination against transgendered people violates existing laws against sex dis- crimination, even in the absence of specific law pro- hibiting gender-identity dis- crimination. Susan Murray and Beth Robinson are attorneys at Langrock Sperry & Wool in Middlebury, Vermont whose practices include employment issues, family matters, estate planning, personal injury and worker’s compensation cases, and general commercial and civil litigation. If you ’d like to see us cover a particular topic, please feel free to write OIT M or call us at 388-6356.7 131 CHURCH STREET l ,__B.liBEflGT0N»l/_Efi.ML0flT_ l F.'802.864.3635 vi/Vww.vermontlamily|aw.com ' lnlo0i/ermo7ntiami|y|aw,com June 2000 I Out in the Mountains I21 0- ” Q. (ze<_ . I (90 - 2. q°\’\"‘° BLACKWOOD 53;: 0.90 ASSOCIATES, Pc 9°?) " dtto rn ey: blackv_v.dlaw@ao|.com fax: 802-863-0262 Employmazt amISpea'al Educdion Law, Civil Rights Law, Wills’ audtllediation, LGBTAdoplions and Domestic Issues, Personal Injury Law and other litigation Laurie S. Rosenzweig Attorney at Law 18 South Main Street, P.O. Box 1455, Rutland, VT 05701 802-786-2251 e-mail: Sabu234@AOL.com V Real Estate, Wills &Trusts, General Practice V GARCIA & ASSOCIATES V ATTORNEYS AT LAW Proudly serving our community with attorneys licensed in Vermont, New York, Connecticut, Virginia and Georgia. -BANKRUPTCY -CRIMINAL DEFENSE -GENERAL PRACIICE 802-655-3200 -WILLS AND TRUSTS -REAL ESTATE -PERSONAL INJURY 32 Roosevelt Highway PO Box 75 Colchester, ‘VT 05446 Free Initial Consultation Email LGClLEX@AOL.COM Fax 802-655-5447 Evening & Weekend Appointments Good legal advice can make all vthe difference. Langrock Sperry & Wool offers the services of 22 lawyers with over 300 years combined experience in all areas of the law — including two lesbian attorneys with special expertise serving the legal needs of the g/l/b/t/q community. SUSAN MIJRRAY & BETH ROBINSON With offices in Middlebury and Burlington Middlebury (802) 388-6356 Burlington (802) 864-0217 smurray@langrock.com brobinson@langrock.com Langrock Sperry & Wool, LLP ATTORNEYS AT LAW