A Salt Lake City
bus driver has lost her trans discrimination case before
a three-judge panel of the U.S. court of appeals for the
10th circuit. In a 25-page opinion, the panel ruled
that the Utah Transit Authority was justified in
firing Krystal Etsitty over concerns about her eventual use
of public restrooms along her route.
A Salt Lake City
bus driver has lost her trans discrimination case before
a three-judge panel of the U.S. court of appeals for the
10th circuit.
In a 25-page
opinion, the panel ruled that the Utah Transit Authority was
justified in firing Krystal Etsitty over concerns about her
eventual use of public restrooms along her route.
Etsitty's is
among the latest in a long line of cases seeking to
expand the federal law against workplace discrimination to
protect people targeted for their gender expression.
The decision,
which is now binding law in the federal courts of the six
states covered by the 10th circuit, is a step backward in
the continuing effort to bring the force of Title VII
of the Civil Rights Act of 1964 to bear on LGBT
discrimination cases.
Next week, the
House is poised to vote on the Employment
Non-Discrimination Act, a separate bill that would protect
LGBT workers against discrimination under most
circumstances. Ironically, Democrats, who added trans
people to the bill for the first time this year, are
considering cutting them loose as the vote looms, The
Washington Blade reported.
Although ENDA
would be a great step forward, the most effective way to
protect LGBT individuals in the workplace would be to
eventually add sexual orientation and gender identity
to the list of factors covered under Title VII.
That law protects
individuals against workplace bias because of "sex"
and other factors. Over time, Title VII's ban on sex
discrimination has evolved to outlaw sexual harassment as
well as some instances of gender stereotyping. In a
key 1989 case, the U.S. Supreme Court ruled that Price
Waterhouse violated Title VII when it refused to
promote a masculine woman based on her personal style.
That ruling would
appear to open the door to all kinds of gay, lesbian
and transgender complaints under Title VII, which does not
specifically protect against LGBT discrimination.
What if a gay man
were harassed or fired not because he is gay but
because he is effeminate? Why shouldn't the rationale in
the Price Waterhouse ruling protect a trans woman
from bias based on her sexual presentation?
Indeed, although
many courts have ignored the Price Waterhouse ruling or
found a way around the precedent, other courts in recent
years have recognized that its principles apply to gay
and trans cases. Unfortunately for Etsitty, both the
lower court and the appellate panel ruled that even if
she could make an argument under the sexual
stereotyping theory, the Utah Transit Authority had a
legitimate and nondiscriminatory justification for
letting her go.
In other words,
had the UTA simply fired her because she was
transitioning, her case might have gone to trial. But since
her termination cited the use of bathrooms, the
agency was off the hook.
According to the
court opinion, Etsitty went through a training period
driving as "Michael," wearing male clothes, and using public
facilities for breaks. Once she began her formal employment,
she told her supervisor she would be transitioning and
living as a woman.
Although the
supervisor had no problem with the news, another manager
called Etsitty into a meeting with human resources staff and
pursued the question of the bathrooms. After
determining that Etsitty was preoperative, the manager
put her on administrative leave and later fired her,
claiming that the Utah Transit Authority could be legally
liable for unspecified damages that might occur if
Etsitty used a ladies' room on her route. According to
the opinion, the UTA even told Etsitty she would be
eligible to return if she had corrective surgery.
The UTA and the
court did not examine the illogical premise behind the
decision to fire Etsitty. In fact, unless Etsitty was
inclined to flash the patrons of the Salt Lake City
ladies' rooms, there would be no reason for her
presence in a stall to disrupt the public in any way. Trans
women are legallly free to use the city facilities,
and in any case Etsitty could, in theory, have located
a string of single-occupancy bathrooms along her
route.
These obvious
points were brushed aside as the court determined that it
was not up to a judge to evaluate the merits of the
company's policy decisions, only to decide whether or
not they amounted to illegal discrimination. The panel
also dismissed Etsitty's claim that her treatment
violated her right to equal protection under the U.S.
Constitution. (Ann Rostow, Gay.com)
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