Judges Rule Transsexual Not Covered by Federal Job Protections

October 12, 2007 (PLANSPONSOR.COM) - A federal appellate court has ruled that federal anti-employment discrimination protections do not apply to transsexuals because the use of the term "sex" in the laws refers only to men or women.

The holding by the 10 th  U.S. Circuit Court of Appeals came as the court upheld the firing of a transsexual Salt Lake City bus driver because her employer was afraid of potential liability from her use of public restroom facilities along her routes.

The appellate judges sided with the earlier ruling by a federal judge in the U.S. District Court for the District of Utah of a decision dismissing Krystal Etsitty’s discrimination suit against the Utah Transit Authority (UTA). The 10 th  Circuit refused to extend sex-stereotyping analysis to the use of single-sex public restrooms by the opposite sex.

In its assertion that federal workplace protections would not apply to transsexuals, the 10 th  Circuit cited a number of its sister federal appellate courts that had issued opinions to that effect, including one by the 7 th  U.S. Circuit Court of Appeals declaring it “unlawful to discriminate against women because they are women and men because they are men.”

According to the decision, Etsitty was born a male but had begun the transition to being a woman. While she had represented herself as male while being hired by the UTA, at the end of the training period, she told her supervisor that she was a transsexual and intended to live as a female while at work – a situation her supervisor assured her would not be a problem for the company.

The opinion said the problem first arose after Etsitty had been on the job for about 10 weeks without incident when an operations manager heard that a male driver was wearing makeup.

According to the decision, Etsitty told her bosses that because she could not afford sex reassignment surgery, she still had male genitalia but still needed to use female restrooms as part of her sex reassignment process.

The operations manager was concerned that the use of women’s restrooms by an anatomical male could expose the employer to criticism and legal liability. The judges said the UTA fired Etsitty because it could not meet her restroom needs. The company said she was eligible for rehire after sex reassignment surgery.

The courts likewise rejected Etsitty’s contention that she was a victim of unlawful sex stereotyping, citing a 1989 U.S. Supreme court case in which a female accountant denied partnership because she was “too masculine” was judged to be the victim of sex discrimination.

10 th  Circuit judges held the UTA’s liability concerns was a legally valid reason by firing Etsitty.

The 10 th  Circuit’s decision is  here .