Last week, a transgender man filed an antidiscrimination lawsuit after he was fired from a drug-testing facility in New Jersey.
In the suit, El’Jai Devoureau stated he was terminated on his second day at work at Urban Treatment Associates in Camden after his supervisor learned he was transgender.
Allegedly, Devoureau was let go because the company said his job of preventing fraud in urine testing was gender-specific.
According to the Transgender Legal Defense and Education Fund, this is the first case of its kind.
New Jersey law prohibits discrimination based on sex, gender identity and disability, but the state hasn’t encountered a suit in which a trans person was fired from a gender-specific position.
Having a gender-specific job requirement is not common, but not completely unheard of (think Hooters waitresses and Chippendales dancers) — and it’s generally only legal when the company can prove sex is somehow germane to performing the job.
But who gets to decide if one is male or female enough for a position?
In Devoureau’s case, he had begun psychological counseling and hormone therapy some five years prior, and subsequently underwent sex-reassignment surgery and changed his birth certificate and state identification.
So, what, technically defines a “man” — and does a state or federal government have an interest in defining it?
If, for legal purposes, sex is established by a birth certificate, then Devoureau is well within his rights to claim discrimination based on gender identity and sex.
If genetic testing and a chromosome count are used to establish sex, not everyone’s sex matches his/her chromosome count.
No doubt most would agree that having to submit to genetic testing is overly intrusive for a position in which one verifies the person peeing in the cup is really who they say they are — or for any other job.
There have been somewhat similar cases in which employees were asked to provide photos of their genitalia to prove they could use the restroom or locker room of their preference.
Again, most would agree that this is an invasion of privacy. Individuals have a reasonable expectation of privacy, including not having to submit a snapshot of their genitalia to use the women’s or men’s restroom.
Another instance in which the government might claim to have an interest in verifying sex would be in attempting to enforce the Defense of Marriage Act, which limits marriage to one man and one woman.
There are two issues with this: First, it flies in the face of the supposedly Republican/Libertarian tenet of greater individual liberties and less government involvement in personal lives. Second, President Obama has directed the Department of Justice to stop defending part of the Defense of Marriage Act, rendering government interest unnecessary.
One’s gender identity has no bearing on one’s ability to do a job, and should never be used as a job qualification.