October 09, 2007

Case in Point: Harm to LGB by Failure to Protect Gender Expression

by PG

I have found a set of facts to back my response to a Salon article complaining that the inclusion of "gender expression" or "gender identity" in the Employment Non-Discrimination Act threatens to derail this federal legislation that was originally intended to protect against discrimination on the basis of sexual orientation. I replied to the Chaliceblog's link to the piece by saying, in part,

The Salon author must have a somewhat superficial understanding of civil rights history if he can simply say, "The Civil Rights Act of 1964 provided a large umbrella of rights based on race, religion, sex and national origin," without noting that sex actually was inserted as a way to kill the legislation. Women had to sneak in on African Americans' coattails. In contrast, the transfolk discrimination issue is a lot more similar to LGB people's than women's to that of racial minorities. Whether you're L, G, B or T, it all comes down to being discriminated against for something that would be OK if you were a member of the opposite sex.
In the case of gays, it would be OK to like men if you were a woman; in the case of lesbians, it would be OK to like women if you were a man; in the case of male-to-female trans, it would be OK to wear lipstick if you were born with a vagina; in the case of female-to-male trans, it would be OK to have a buzz cut if you were born with a penis.
And a lot of what is called sexual orientation discrimination actually commingles with gender expression; the lesbian is given a hard time before she ever says, "I like girls," because she fails to follow a feminine convention such as wearing makeup or having longer hair. In my opinion, an ENDA that includes gender expression is simply more coherent. For that matter, a prohibition on sex discrimination that had included what ENDA does would have been more coherent.
And what do I read about shortly thereafter, but a lawsuit by a woman who was thrown out of the ladies' room by a male bouncer because she was mistaken for a man? She's a lesbian, but at least overtly, that's not why she was mistreated. It was her failure to adhere to traditional gender expression so that she would be readily recognizable as someone who belonged in the ladies' room.

October 9, 2007 10:58 PM | TrackBack

Interesting case. I know it's not an employment case, so it wouldn't really fit under ENDA, but suppose that federal law did extend a prohibition on discrimination based on gender identity to include restaurant restrooms. Would there still be any permissible basis on which a restaurant could still police against men going into the women's restroom (or vice versa)?

Posted by: Tom T. at October 10, 2007 11:32 PM

Right, I should have clarified that the lawsuit was over public accommodation, not employment. Because the problem was that she failed to express as sufficiently "feminine" for the bouncer to think she was assigned to the women's restroom, I'm not sure how merely prohibiting discrimination on the basis of sexual orientation would help. The bouncer didn't kick her out because she was a lesbian; he kicked her out because her appearance seemed masculine to him, and he was indifferent as to whether her legal status was female (hence his refusal to look at her ID, which identified her as a woman and which had sufficed on prior occasions of mistake to convince others that she was a woman).

Therefore I'm not sure why a man would be able to go into the women's restroom. I'm not 100% sure that "separate but equal" bathrooms are OK under existing sex discrimination law, but assuming that they are, a law that prohibited discrimination on the basis of gender expression shouldn't create a problem with that. Suppose that we have separate bathrooms because men can more space-efficiently use urinals instead of separate stalls, whereas women need a place to sit down. A legally male person who entered a woman's restroom for his own urinary needs (as opposed to escorting his young daughter or changing a baby's diaper) would not be doing so for any practical reason. A person who still has some male anatomy but has legal recognition as a female -- and could produce the ID to prove it -- should be allowed into the women's room. An establishment who treated such a person the way this plaintiff was treated would be subject to suit for discrimination.

Posted by: PG at October 11, 2007 04:27 PM

I agree that the act of a man going into the women's restroom would still be prohibited; I'm just wondering if there would be any means for the restaurant to enforce it. The establishment can't eject someone from a particular restroom based on appearance, so it presumably couldn't ask to see ID simply based on appearance, since that's profiling. Presumably, the restaurant could require an ID check of everyone, but that's unlikely to happen.

Posted by: Tom T. at October 12, 2007 07:36 AM

No, it's OK to ask for ID if, for example, another customer is concerned and tells the management this. The profiling is only problematic when the presumption is that anyone who doesn't fit a stereotypical gender expression doesn't belong in the women's bathroom. It would be like having someone guess that I must not have been born in the U.S. because I don't have a European name and appearance (which is not a wholly unreasonable guess to make statistically), and refusing to take me at my word when I say that I was, and worse, ignoring my attempts to show a passport that verifies what I'm saying.

We have to do a certain amount of "profiling" every day. It only becomes a violation of someone's civil rights when we're more committed to our profile than to seeing what's in front of us.

Posted by: PG at October 13, 2007 03:01 PM

But isn't that just shifting the problem? What could the customer's concern possibly be based on other than a presumption arising from the other person's appearance?

Posted by: Tom T. at October 14, 2007 01:10 PM

That may be the customer's basis for concern, and I don't think an establishment under any kind of civil rights law can keep customers from being ugly to each other. If I had screamed racist words at the plaintiff in this case, she couldn't sue the establishment for my behavior. Nor can she sue for my wanting her kicked out of the ladies' room based on her appearance. What she can sue for is the public accommodation's action, which was to kick her out of the ladies' room based on her appearance. Again, she says that she's had people question whether she was supposed to be in the women's bathroom before, and doesn't seem to have had a problem with it so long as they accepted evidence (whether based on her word, or an ID) that she was indeed supposed to be there.

Under existing federal law, however, I don't see how she'd have a cause of action for someone's kicking her out based on her appearance. Men aren't supposed to be in the women's room; she fit the gender stereotype of a man more closely than that of a woman; no federal law as currently interpreted by the courts precludes taking action based on stereotypes of gender appearance. So the bouncer was acting within the bounds of federal law. If the law were changed to protect gender expression, however, she would have a cause of action.

Posted by: PG at October 14, 2007 03:22 PM
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