Tuesday, June 5, 2007

Anti-discrimination law applies to transgendered


It comes too late to help Carol Barlow, but she certainly could have used it.

Could have invoked it when she got fired.

Could have pointed to it when the job interviewer laughed in her face
Could have sued after, she says, her boss said, "When you become Carol or whatever the hell you're doing, you're out of there."

Because Carol Barlow used to be Bruce Barlow. And first Bruce, and then Carol, suffered harassment, indignities and discrimination at one job and then another, and still more on innumerable job interviews.

Well, that won't cut it anymore.

Starting June 17, it will be illegal under state law for businesses to discriminate against Carol Barlow and any other transgender person. New Jersey's anti-discrimination law, already one of the most far-reaching in the country, will add "gender identity and expression" to its list of protected categories for employment, housing, public accommodation, credit and business contracts.

The legislation, passed in December, makes New Jersey the ninth state with a transgender law.

Vermont, Oregon, Iowa and Colorado passed similar laws this year, but they won't take effect until mid summer.

This latest amendment to the New Jersey Law Against Discrimination means it will be illegal for employers to not hire, not promote, not give a raise to, or to harass or fire an employee because she or he is transgender.

"It's not going to affect me but for the people who come after me it will mean a lot," says Barlow , who lives in Clifton. "I hope this law gets rid of some of the fear that our people have."

Barlow , who once did computer support work for the Herald News, is 61 now and nearing retirement. But she worked on the amendment anyway, agreeing to be featured in a 2005 television commercial that urged lawmakers to pass the bill.

The transgender category in the law covers transsexuals -- people born one sex who live as a member of the opposite sex and may have had sex reassignment surgery; cross dressers -- people who dress as the opposite sex sometimes; and androgynous people -- those whose gender is ambiguous.

The new law "is a big deal and it isn't a big deal," says Leslie Farber, a lawyer in Montclair who specializes in job discrimination cases.

Not a big deal because it codifies a decision made in 2001 by the state's Appellate Division. In that case, the court ruled that an employer's refusal to renew a medical director's contract as he was changing from a man to a woman violated the law against sex discrimination.

"We applauded that (2001) decision but we soon found out it really wasn't good enough because no one knew about it," says Barbra Casbar, president of the Gender Rights Advocacy Association of New Jersey, which worked to pass the amendment.

And that's why Farber thinks this is a big deal. Because starting June 17, transgender people will be included in that sign posted in every workplace explaining to employees that it is illegal for their employer to discriminate because of race, creed, age, nationality, marital status, domestic partnership, sexual orientation and now gender identity or expression.

"A statute has much more authority than an interpretation," says Steven Goldstein, chairman of Garden State Equality, another group that helped to pass the amendment. "Transgender people can say, 'Look, there's a law on the books.' They don't have to say, 'There was a court case that interpreted...' blah, blah, blah."

The Law Against Discrimination was enacted in 1945, and was the first state civil rights statute in the country, according to Frank Vespa-Papaleo, director of the state's Division on Civil Rights. It included race, creed, color, origin and national ancestry under its umbrella. Since then the law has been amended "probably hundreds of times," Vespa-Papaleo says, including in 1972 when it was expanded to include people with disabilities, a full 18 years before the federal government passed the Americans with Disabilities Act.

Lawyers don't see the new amendment that includes transgender people as posing a problem for employers.

But one area that may be murky is the legal interpretation of "discrimination," says Julie Greenberg, a law professor at Thomas Jefferson School of Law in San Diego, Calif., and an expert in legal issues surrounding sexual identity and orientation.

Could businesses be violating the rights of transgender employees by telling them they must use the bathroom or locker room of their sex at birth?

"Part of the problem of bathroom use is other's objecting," Greenberg says. Workers feeling like their privacy has been breached and complaining to their bosses.

A case like that arose in Minnesota, which has a similar statute. In 2001 the state Supreme Court found that an employer was not violating the anti-discrimination law by making a policy in which employees must use the bathrooms of their birth sex. The suit had been brought by a transgender worker who identified as female and had a state court declare him legally female. Female coworkers complained when their colleague used the women's bathroom, and in response the company made the policy.

There is a movement among transgender people to install unisex bathrooms in workplaces and public buildings to avoid just such a problem.

"The one thing I think we all strive for is respect," Casbar says.


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