10th Circuit
Upholds Trans Woman's Firing

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)