In a stunning ruling late in the afternoon Sept. 16, Judge Africk, a United States district judge in Louisiana, ruled that crossdressing away from work constitutes grounds for immediate dismissal from employment. The ruling came in the case of Peter Oiler, a truck driver for 21 years with Winn-Dixie, a grocery chain in the South. Oiler had been dismissed because it had been revealed that he occasionally wears women's clothes while off the job and away from work. Once again, a federal judge made the biased judgement that Title VII, the law that prevents discrimination based on sex stereotyping, does not apply to transgendered people.
Just to set the record straight right from the start, there is nothing illegal about crossdressing. If there were, then half the people on Bourbon Street would wind up in the slammer during Mardi Gras.
Let's examine this logic a little closer. First of all, let's look at the right to privacy. The ruling clearly states that legal activities away from work are grounds for dismissal from work if your boss doesn't like them.
Like smoking. If the judge's ruling is correct, then a person can be fired from a job in Louisiana just for lighting up a cigarette. Even if he doesn't inhale. Oh my!
I first became aware of Right to Privacy Laws when I volunteered for Lance Pressl, a candidate for Congress two years ago from the Northwest Suburbs where I live. Pressl had worked as a lobbyist for a major tobacco company in a former life. They had wanted him to lobby for statewide legislation that would prevent an employer from doing exactly what Winn-Dixie did … firing someone for pursuing legal activities away from work. Of course, the tobacco company wanted the laws so smokers would not be fired if they worked for non-smoking employers. But Pressl made sure the legislation was worded broadly enough so that all legal activities were covered. He managed to get these laws passed in 38 states, but apparently he did not get down to bayou country.
So, your boss doesn't like you stopping off at the bar after work. So, your boss doesn't like the number of people you've slept with over the last year. So, your boss doesn't like that great tattoo you have on the small of your back that nobody but you and your lover can see. So, your boss doesn't like the fact that you never call or send a letter to your mom in St. Louis. Well, tough luck buddy. In Louisiana, it is perfectly OK to fire you for anything you do that is legal, as long as you do it away from work. The hell with the right to privacy in Louisiana.
Next … let's look at the premise that sex stereotyping somehow does not apply to someone who wears the wrong clothing. What's that all about? A "stereotype" according to Webster is "a standardized mental picture that is held in common by members of a group and that represents an oversimplified opinion, prejudiced attitude, or uncritical judgement."
So what do we call the mental picture held in common by members of the United States judiciary that represents oversimplified opinion of what a woman is? Of what a man is? What do we call the prejudiced attitude that it is fine for women to go into the men's department at Target and buy boy-cut jeans, or big comfy work shirts, but not fine for men to buy big comfy denim dresses from the women's department?
What do we call the uncritical judgement that allowed Judge Africk to dismiss as irrelevant all of the favorable federal rulings in cases of sex stereotyping? The cases of three women who were fired for wearing men's clothing on the job were not relevant because, according to the written opinion, "there is no evidence that they were transgendered or that they were crossdressers."
Next … let's look at the premise that the sex discrimination provisions of Title VII do not apply to those who have changed sex. Does this also mean that discrimination based on religion does not apply to those who have changed religion? Does it mean that if you converted to Judaism, and are dismissed from your job because your boss doesn't like Jews, that you cannot bring lawsuit based on your religion?
Finally … I would like to share with you the thoughts of my friend, Courtney Sharp, a well-known and respected transgender activist from New Orleans. She was writing in response to a statement by Judge Africk that, from 1981 through 2001, there were 31 bills introduced in Congress to amend Title VII and prohibit employment discrimination on the basis of affectional or sexual orientation … and that none have passed.
Courtney writes, "The Judge does not seem to recognize that Rep. Barney Frank, a chief drafter of ENDA ( the Employee Nondiscrimination Act ) , left gender identity out of the bill because he maintains that we already have protections under Title VII. Obviously Frank and this Judge have differing views. Maybe, Frank will be willing to publicly comment on this ruling to ensure that all federal judges understand that transgender persons are protected by Title VII."
I couldn't agree more. I have repeatedly expressed my opinion in this column and in numerous public venues that ENDA needs to be revised to include gender identity. And that the lead sponsors are the ones preventing that inclusion.
Further, Courtney concludes that the reason Judge Africk ruled against the plaintiff in this case was because of gender role stereotyping. Courtney said, "This is not just a matter of an employee of one sex exhibiting characteristics associated with the opposite sex. This is a matter of a person of one sex assuming the role of a person of the opposite sex."
Gender role stereotyping, folks. That is what this is all about. But until we can all agree to include gender identity and expression in human-rights laws, crossdressers need not apply.
Miranda Stevens-Miller welcomes your comments at MirandaSt1@aol.com .
