Too Little, Too Late on Gender Identity Protections?
September 13 2011 7:00 AM ET
El’Jai Devoureau’s job at a New Jersey drug treatment center was taken away as quickly as it was offered. It wasn’t glamorous: In June of 2010 he was hired to ensure that male patients giving their urine samples for testing weren’t cheating. The economy is tough, and a job is a job.
On his second day of work at Urban Treatment Associates in Camden, his supervisor found out that Devoureau, now 39, was born female. The supervisor asked a question he refused to answer: whether as a transgender man he had undergone gender-confirming surgical procedures. And despite a lack of evidence that he was not performing his job well, Devoureau was fired on the spot. But as far as state and federal government agencies are concerned, there is no confusion about his gender. Devoureau’s birth certificate now categorizes him as male, what he has known his whole life to be true. The Social Security Administration concurs. So does New Jersey’s Motor Vehicle Commission. Devoureau’s voice is unmistakably masculine, partly the result of hormone therapy he began in 2006. As his legal complaint avers, he is “legally, medically, and socially male.”
“It’s wrong the way that I was treated, and I want them to know that they can’t do what they did,” Devoureau says. “You should be judged not on who you are, but on how you do the job. They can fight it, but I believe the law is on my side.”
The law indeed may be on the side of Devoureau, who filed suit against Urban Treatment in April, one of several current lawsuits in the nation on gender identity discrimination in the workplace. In 2006 the New Jersey legislature passed a law prohibiting discrimination in employment on the basis of sexual orientation and gender identity; it is one of 15 states that covers the entire LGBT population on the matter (so does the District of Columbia).
Thirty-five states have no such protections, however, and with the Employment Non-Discrimination Act languishing in Congress, 17 years after it was introduced, a federal law to protect workers from egregious harassment and abuse is far from a reality. “This is the first case, to our knowledge, of a case where someone has been fired for being insufficiently male,” says Michael Silverman, executive director of the Transgender Legal Defense and Education Fund, which co-represents Devoureau in the suit. “We agree that this is a sex-specific job, but every government agency that would look at this would come to the same conclusion: El’Jai is male.”
Recent research on transgender employment discrimination confirms what experts have long suspected regarding its pervasiveness. Nearly half of transgender respondents in a 2011 study by the Williams Institute at the University of California, Los Angeles, reported that they had been fired or denied a job promotion because of their gender identity—discrimination rates far higher than reported by other segments of the LGBT population. The long-term unemployment rate among transgender individuals is both staggering and given insufficient attention by the community, National Center for Transgender Equality Mara Kiesling noted last week. Perhaps the White House’s push for a $447 billion jobs creation plan is a good place to pick up the conversation. “Getting fired isn’t our biggest problem; getting fired and staying unemployed or underemployed is deadly,” Kiesling wrote.