Would It Kill You To Look Like A Man? Transgender Employees in Indiana
Filed by: Dr. Jillian T. Weiss
January 25, 2009 4:00 PM
http://www.bilerico.com/2009/01/i_hope_you_dont_think_im_being_stereotyp.phpJudge Robert L. Miller, a Reagan appointee who sits on the federal district court for the Northern District of Indiana, has recently issued yet another curious decision in the case of Creed v. Family Express Corp. Amber Creed was fired from her job in 2005 because she is transgender. Judge Miller's first decision, in 2007, which I will call Creed I, was very curious indeed, creating a considerable amount of confusion about what precisely is protected under the federal employment discrimination law, Title VII of the Civil Rights Act of 1964. His second decision, which came out a few weeks ago (Creed II, 2009 WL 35237) is even more hopelessly befuddled. Curiouser and curiouser!, cried Alice. These decisions are a case study of why the proposed federal Employment Non-Discrimination Act should include protection for both sexual orientation and gender identity, for it demonstrates that the current federal law of employment discrimination is a patchwork welter that creates confusion for both employees and employers.
There is a considerable amount of debate as to whether, in protecting "gender identity" - one's self-identification as male or female - the law should also protect "gender expression" - one's expression of gender through clothing, styling and other behavioral and social characteristics. Judge Miller's decision in Creed I turned this debate on its head. He decreed that the federal sex discrimination protection extends to discrimination based on gender expression, but that discrimination based on gender identity is not. Under Judge Miller's rule, a crossdresser who makes no claims about sex would be covered, but a transsexual who claims to change their sex would not. In other words, sex discrimination covers a person whose sex is not implicated, but doesn't cover a person whose sex is implicated. Sheesh.
