The Forum

This month’s focus is on how the law treats transgendered indi­viduals who allege workplace discrimination. Various transgendered individuals in Northwest Indiana have filed lawsuits because of alleged dis­crimination by their respective employ­er or school.

A recent issue of Indiana Lawyer highlighted one of these cases: Amber Creed a/k/a Christopher Creed v. Fam­ily Express Corp., 2009 WL 35237, N.D. Ind. Jan. 5, 2009. In this case, the Court granted summary judgment in favor of the convenience store which was being sued by an employee, a male transitioning into a female, who alleged he was fired because he did not fol­low the male-specific appearance and grooming guidelines. Family Express operates convenience stores across Northern Indiana and is headquartered in Valparaiso.

The employee worked at one of the LaPorte stores, began working as a male and wore the unisex uniform, but he later began the transition to be­come a female by using a girl’s name and wearing makeup, clear nail polish, and longer hair with the uniform. The employee based his allegations on state­ments from a manager and a supervisor, which included being asked if “it would kill her” to dress as a male for eight hours a day and why she applied for a job knowing she was going through gender transitioning.

Family Express argued that the employee voluntary left his position when he did not provide a reason for why he would not comply with their request to cut his hair and stop wearing makeup.

In its decision, the Judge found the employee must be considered a man un­der Title VII because it is based on the biological gender of a person and held harassment based on transgendered sta­tus does not amount to actionable dis­crimination. The Court also held that Family Express’ appearance require­ments did not have a disparate impact on either sex. It reasoned that the em­ployee failed to provide sufficient evi­dence to show he would not have been terminated but for his failure to comply with male stereotypes.

Indiana is not the only place where transgendered individuals have fought discrimination. The ABA Journal’s Feb­ruary 2009 issue highlighted this issue in one of its articles. Among the cases described in the article was one against the government, specifically the Library of Congress. In that case, Schroer v. Billington, 577 F.Supp.2d 293, (D.D.C. 2008)., a U.S. Army Special Operations Colonel led a classified anti-terrorism unit before his retirement. During that time, he underwent facial surgery to become a woman. While preparing for the transition, he applied and was hired as a terrorism analyst for the Library. However, his job offer was revoked when the government learned about the gender transition. He sued, and the case went to trial.

The District Court Judge found that the Library of Congress had illegal­ly discriminated based on sex, but dam­ages have yet to be awarded. He cited evidence which showed that the Library was excited to hire the plaintiff, until they were informed about his gender transition. The Judge compared the Li­brary of Congress’ argument that trans­gendered individuals are not a protected class under Title VII to that of terminat­ing a person based on their conversion from Christianity to Judaism— both are still religions so it is still discrimination based on religion.

And now for the opinion of the Commers Court… I am puzzled by the Judge’s ruling in the Family Express case, considering he noted that “Title VII doesn’t allow an employer to treat employees adversely because their ap­pearance or conduct doesn’t conform to stereotypical gender roles.” I believe the employee provided sufficient evi­dence to show he was terminated solely because he did not meet societal stan­dards on how a male should appear.

On a personal note, the Family Express case is especially troubling to me because the incident occurred in my hometown, LaPorte, IN. This is an example of why Indiana, and the Mid­west to some degree, is seen by those by others as being intolerant. Even with the view of the courts in Indiana, I am hopeful that the view of the D.C. Dis­trict Court will eventually become the precedent on this issue and will remind people that every person has the right to live their life as they see fit without the interference of others, including the gender they prefer.

Christy is a 2L and can be reached at forum@valpo.edu.

This entry was posted on Monday, March 23rd, 2009 at 12:24 pm and is filed under News.You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.