Important Transgender Wins

Gender identity protected by ’64 act; refugee’s treatment faulted

In two February decisions, transgender discrimination plaintiffs won important victories––in Pennsylvania and California. Most significantly, a 3rd Circuit federal trial court in Pennsylvania followed recent precedents from the 6th Circuit in holding that the 1964 Civil Rights Act, the principal federal discrimination law, forbids employment discrimination against transsexuals in the workplace.

The California ruling, also by a federal judge, found that the strict isolation imposed on transsexuals confined in a Sacramento County jail violates their rights under the federal Constitution.

Danny Lee Mitchell, described in Judge Gary Lancaster’s February 17 opinion as a “pre-operative transsexual who is diagnosed with Gender Identity Disorder,” had been getting along just fine at Axcan Scandipharm, Inc. for four years when she informed her employer in November 2003 that she had been diagnosed transsexual and would begin “to present in public as a female.” Mitchell claims to have encountered substantial harassment for the next month until she was terminated after she had an auto accident driving a company car on December 29.

Mitchell claimed to have been subjected to a hostile environment and then discharged on account of her gender identity, asserting that the company used the auto accident as a pretext.

The company promptly moved to dismiss the lawsuit since the federal ban on sex discrimination in the workplace does not specifically mention transsexuals or gender identity. Though a magistrate hearing pretrial motions agreed with the company, Lancaster did not, concluding that Mitchell’s complaint did “state claim” under both the 1964 Act and the Pennsylvania Human Rights Act.

Lancaster specifically referred to the U.S. Supreme Court’s 1989 decision in Price Waterhouse v. Hopkins, in which the court ruled that gender should be irrelevant to most employment decisions, and that “sex stereotyping” by employers was evidence of discriminatory intent. In a 2001 sexual harassment case involving an effeminate man, the 3rd Circuit Court of Appeals, though finding against the plaintiff, ruled that sex discrimination could be proved when “the harasser’s conduct was motivated by a belief that the victim did not conform to the stereotypes of his or her gender.”

Building on the 3rd Circuit precedent, Lancaster then cited two more recent positive decisions by the 6th Circuit Court of Appeals, involving transgendered public safety employees in Salem and Cincinnati, Ohio, and concluded: “Having included facts showing that his failure to conform to sex stereotypes of how a man should look and behave was the catalyst behind defendant’s actions, plaintiff has sufficiently pleaded claims of gender discrimination.”

Lancaster ruled that Mitchell will have an opportunity to amend her complaint to more directly state her claim based on the sex stereotyping theory.

The opinion is significant in being the first to follow the 6th Circuit precedents in another part of the country.

In the California case, Richardo Medina-Tejada, a transgendered Mexican held at the Sacramento County jail for three months while an immigration judge considered her asylum petition, claimed that the conditions of her confinement there violated the federal Constitution’s 14th Amendment. Medina-Tejada had fled Mexico due to severe persecution encountered ever since she began living as a female as a teenager. After a period of confinement in the Sacramento jail, her asylum petition was granted and she was released.

However, Medina-Tejada’s three months of incarceration were quite oppressive, including an incident where poor communications may have contributed to her being assaulted by a guard. She was placed into strict isolation, called T-Sep––for “total separation”––a policy routinely followed by the county jail with transgendered inmates, under which she was placed in a single cell and confined 23 hours a day, with only one hour, from 2 to 3 a.m. for recreation. T-Sep also involved deprivation from virtually all the amenities available for prisoners, limited showers, and no access to the library.

When Medina-Tejada was delivered to the jail, the county sheriff was already under a court order from a prior lawsuit by a transgendered inmate challenging the T-Sep policy. County attorneys argued that the prior case did not apply to Medina-Tejada, but U.S. District Judge Frank C. Damrell, Jr., agreed with the prior ruling that T-Sep was an inappropriately punitive setting for somebody being held pending an asylum determination and with no criminal conviction.

T-Sep is normally used to confine inmates whose behavior presents a danger to others. The jail officials said that they put transsexual inmates into T-Sep for their own protection, but the court was not buying this, pointing out that there were less restrictive forms of protective custody that could be used, and that placing somebody in a punitive lock-up situation that was not due to their own behavior was a basic violation of due process of law.

Damrell refused to dismiss the lawsuit, and found in his February 27 opinion that Medina-Tejada could sue for damages as compensation for the inappropriately punitive confinement.