This is an archived article that was published on sltrib.com in 2007, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.
I don't know about the rest of you girls, but I'm more uncomfortable with the idea of peeing next to a man who believes he's a man than peeing next to a man who believes he's a woman.
That's just me. Utah Transit Authority and the 10th U.S. Circuit Court of Appeals didn't ask my opinion.
Last week, the Denver court rejected Krystal Etsitty's lawsuit against UTA, concluding - mind-bogglingly -that Americans with complicated gender identity and biology cannot be harassed, undermined or bullied at work.
The idea that a transsexual-in-progress can't be a victim of sexual discrimination is bogus. If there's a group more vulnerable than women in the workplace, it's women who used to be men and men who used to be women.
But U.S. Supreme Court precedent doesn't allow for such conventional wisdom. Instead, this country's anti-discrimination law hinges on a dated definition of "sex" or gender in Title VII of the Civil Rights Act of 1964. In a 1989 ruling that will be replaced eventually, but not soon enough, the justices concluded that men and women who fail to meet the stereotype of their gender - a man with fey hand gestures, for example - can't be discriminated against.
Ridiculous, I know. Stuck with an aging, binary definition of the differences between men and women, even the Denver judges seemed to acknowledge the intellectual acrobatics they were engaging in:
"This court recognizes it is the plain language of the statute and not the primary intent of Congress that guides our interpretation," they wrote. "Nevertheless, there is nothing in the record to support the conclusion that the plain meaning of 'sex' encompasses anything more than male and female."
And because Etsitty was discriminated against as a transgendered person - an identity missing from that 40-year-old law - she could not be protected by federal law.
Etsitty was born Michael, a little boy with the terrifying sense he was supposed to be a little girl. As an adult, he dressed as a woman outside work, took female hormones and planned to undergo gender reassignment surgery to remove his genitalia.
Then he started training as a bus driver with UTA, filling in on Salt Lake City routes and using public men's rooms. That was fine. But Etsitty couldn't afford the final surgery. Eventually, she told her supervisors she would begin wearing makeup, dressing as a woman and using women's restrooms. After those conversations, she was fired.
The Transit Authority just couldn't meet her bathroom needs. Apparently, transit officials are unfamiliar with women's restrooms; they don't know all the stalls have doors, so no one can catch an errant glimpse of genitalia without really trying. They never polled restroom users along the routes to find out if anyone would freak out. Instead, they offered Etsitty her job back when her surgery was complete. So Etsitty sued.
Federal courts have left her on her own. She was fired because she has unusual bathroom needs - a classic example of gender discrimination. She's lost in decades-old language that has not changed to keep pace with modern medical technology or sensibilities.
The Denver judges seem sympathetic:
"Scientific research may someday cause a shift in the plain meaning of the term 'sex' so that it extends beyond the two starkly defined categories of male and female," they wrote, seeming to soothe their consciences.
"This court is aware of the difficulties and marginalization transsexuals may be subject to in the workplace. The conclusion that transsexuals are not protected . . . should not be read to allow employers to deny transsexual employees the legal protection other employees enjoy."
Yeah, right.