NJ Lawsuit Hinges On Definition Of "Male"

This is an interesting story I discovered via PageOneQ. The New York Times has the deets:

Mr. Devoureau, 39, says he has identified himself as a man all his life. In 2006, after he began taking male hormones and had sex-change surgery, he adopted the name El’Jai (pronounced like L. J.). A new birth certificate issued by the State of Georgia identifies him as male, as does his New Jersey driver’s license, and the Social Security Administration made the change in its records. 

“As long as I’ve been a person, I’ve lived as a man,” he said in an interview. “At age 5, I did everything a boy did: I climbed trees, I played football, I played with trucks. Most of the people in my life, all they know is I’m male.” 

Last June, Urban Treatment Associates in Camden hired Mr. Devoureau as a part-time urine monitor; his job was to make sure that people recovering from addiction did not substitute someone else’s urine for their own during regular drug testing. On his second day, he said, his boss said she had heard he was transgender. 

“I said I was male, and she asked if I had any surgeries,” he said. “I said that was private and I didn’t have to answer, and I was fired.” 

Calls to Urban Treatment were not returned. But after Mr. Devoureau made a complaint to the state’s Division on Civil Rights, the treatment center filed a response in January saying that Mr. Devoureau’s dismissal “was not motivated by, nor related in any way to, any discriminatory intention.” 

Civil rights laws and court decisions allow limited cases of favoring one group over another, like giving preference to women for jobs as nurses in maternity wards. In its January filing, Urban Treatment said that firing Mr. Devoureau was legitimate, “since the sex of the employee engaged in that particular job position is a bona fide occupational qualification” — implying that Mr. Devoureau was not really a man. 

Mr. Devoureau’s suit, filed in Superior Court in Camden, is not the first job discrimination case brought by a transgender person, though those remain rare. But Michael D. Silverman, executive director of the Transgender Legal Defense and Education Fund, said it was the first employment case in the country to take on the question of a transgender person’s sex.

The question of what defines male and female is not as simple as "what you see in the mirror when you stand in front of it nude." Scientifically (and legally) there are at least 8 different characteristics which comprise "sex." It will be interesting if this lawsuit forwards this notion in the legal sphere.

Note that there are only 12 states which ban employment discrimination on the basis of gender identity. The Maryland legislature just failed to enact HB 235 which would have banned gender identity discrimination in employment, housing and credit (but not public accommodations).