Dana Gold
11-03-05, 07:33 PM
Although the case below , soon to be heard in the US Supreme Court, involves a MtF trans person, it is the quote below (at the end of the article in the link and paragraphs below)that I find disturbing in possible reference to future job discriminations toward persons with an intersex condition . Specifically that their employers determine the person with an intersex condition (or trans person) is not "female or male enough" for the job and which justifies and constitutes just cause for firing said persons, withholding promotions , or harassment.....the case below involves just that kind of possible discriminatory action by the person's employer:
"The law tries to keep women and men from being treated differently," says Ganulin. "But different kinds of men and women is the gray area, and the Court needs to step in."
Different kinds of men and women!?? ....to be "judged" by the Supreme Court; I don't know if this development would be good or bad, and I think courts stepping in sex and gender issues (although in reference to medical treatments) has cropped up before in the BLO forum.
Supreme Court May Take Up Transsexual Case
Cincinnati police officer sues department over alleged discrimination based on desire to switch genders
Nathan Carlile
Legal Times
11-03-2005
One side says the case is about sex discrimination. The other says it's simple stereotyping. Now the Supreme Court is being asked to step in.
In 1999, Philip Barnes was a Cincinnati police officer training for a promotion to sergeant. Barnes was also intent on changing gender and spent his off hours living as a woman. Barnes, who had worked in the department since 1981, ranked 18th out of the 105 officers who took the sergeant's exam. But the police department, citing a litany of professional errors and shortcomings, refused to promote Barnes.
Barnes, now known as Philecia Barnes, filed suit in 2003 in the U.S. District Court for the Southern District of Ohio, claiming sexual discrimination under Title VII of the Civil Rights Act. A jury ultimately agreed with Barnes, awarding $320,000 in damages. The verdict was later upheld by the 6th U.S. Circuit Court of Appeals. On appeal, the city argued, to no avail, that the sexual discrimination Barnes claims is instead sexual stereotyping, based on his act of switching sexes, which does not enjoy special protection under the law and would leave Barnes without a cause of action.
The Supreme Court will consider Barnes v. City of Cincinnati during its private conference Friday. It is among several cases the Court will review to determine if they should be added to the Court's docket for argument next year.
In its brief the city cites Price Waterhouse v. Hopkins, a landmark sex discrimination case decided in 1989 with a 6-3 vote. In a dissenting opinion in that case, Justices Anthony Kennedy, Antonin Scalia, and then-Chief Justice William Rehnquist wrote that "Title VII creates no independent cause of action for sex stereotyping." The dissent went further, emphasizing, "The plaintiff must show that the employer relied on her gender in making its decision."
The city sees this as an opening. It has asked the Court to view Barnes as a transsexual and in the same light as homosexuality, which does not have protection under Title VII. The brief also cites confusion between the circuits and says the 2nd and 7th circuits have recognized that Title VII does not protect transsexuals from discrimination.
In the respondent brief, Barnes says the circuits are in agreement because his claim was not based on his transsexuality but on how the department viewed his gender. Barnes claims the Court established clear precedent with Price Waterhouse, saying sex stereotyping is a form of discrimination and the law was properly applied in this case.
"Just as the woman in Price Waterhouse was denied a partnership because she was not sufficiently feminine for her employer, Philip Barnes, a male at the time of his probation, was denied his promotion because he was not sufficiently masculine enough for his supervisors," the brief states.
What is most important, says Richard Ganulin, Cincinnati's assistant city solicitor, is whether the Court desires to redefine the difference between sex discrimination and sexual stereotyping.
"The law tries to keep women and men from being treated differently," says Ganulin. "But different kinds of men and women is the gray area, and the Court needs to step in."
http://www.law.com/jsp/article.jsp?id=1130953710395&rss=newswire
"The law tries to keep women and men from being treated differently," says Ganulin. "But different kinds of men and women is the gray area, and the Court needs to step in."
Different kinds of men and women!?? ....to be "judged" by the Supreme Court; I don't know if this development would be good or bad, and I think courts stepping in sex and gender issues (although in reference to medical treatments) has cropped up before in the BLO forum.
Supreme Court May Take Up Transsexual Case
Cincinnati police officer sues department over alleged discrimination based on desire to switch genders
Nathan Carlile
Legal Times
11-03-2005
One side says the case is about sex discrimination. The other says it's simple stereotyping. Now the Supreme Court is being asked to step in.
In 1999, Philip Barnes was a Cincinnati police officer training for a promotion to sergeant. Barnes was also intent on changing gender and spent his off hours living as a woman. Barnes, who had worked in the department since 1981, ranked 18th out of the 105 officers who took the sergeant's exam. But the police department, citing a litany of professional errors and shortcomings, refused to promote Barnes.
Barnes, now known as Philecia Barnes, filed suit in 2003 in the U.S. District Court for the Southern District of Ohio, claiming sexual discrimination under Title VII of the Civil Rights Act. A jury ultimately agreed with Barnes, awarding $320,000 in damages. The verdict was later upheld by the 6th U.S. Circuit Court of Appeals. On appeal, the city argued, to no avail, that the sexual discrimination Barnes claims is instead sexual stereotyping, based on his act of switching sexes, which does not enjoy special protection under the law and would leave Barnes without a cause of action.
The Supreme Court will consider Barnes v. City of Cincinnati during its private conference Friday. It is among several cases the Court will review to determine if they should be added to the Court's docket for argument next year.
In its brief the city cites Price Waterhouse v. Hopkins, a landmark sex discrimination case decided in 1989 with a 6-3 vote. In a dissenting opinion in that case, Justices Anthony Kennedy, Antonin Scalia, and then-Chief Justice William Rehnquist wrote that "Title VII creates no independent cause of action for sex stereotyping." The dissent went further, emphasizing, "The plaintiff must show that the employer relied on her gender in making its decision."
The city sees this as an opening. It has asked the Court to view Barnes as a transsexual and in the same light as homosexuality, which does not have protection under Title VII. The brief also cites confusion between the circuits and says the 2nd and 7th circuits have recognized that Title VII does not protect transsexuals from discrimination.
In the respondent brief, Barnes says the circuits are in agreement because his claim was not based on his transsexuality but on how the department viewed his gender. Barnes claims the Court established clear precedent with Price Waterhouse, saying sex stereotyping is a form of discrimination and the law was properly applied in this case.
"Just as the woman in Price Waterhouse was denied a partnership because she was not sufficiently feminine for her employer, Philip Barnes, a male at the time of his probation, was denied his promotion because he was not sufficiently masculine enough for his supervisors," the brief states.
What is most important, says Richard Ganulin, Cincinnati's assistant city solicitor, is whether the Court desires to redefine the difference between sex discrimination and sexual stereotyping.
"The law tries to keep women and men from being treated differently," says Ganulin. "But different kinds of men and women is the gray area, and the Court needs to step in."
http://www.law.com/jsp/article.jsp?id=1130953710395&rss=newswire