Gay legal advocacy group Lambda Legal (basically the gay ACLU) wrote a letter recently to US Representative Barney Frank (D-MA). The letter argues to Frank that we must have “gender identity” in the ENDA non-discrimination law. Why? Because, according to Lambda, if the law only covered discrimination based on sexual orientation, and didn’t also cover gender identity, then employers could claim that they love their gay and lesbian employees, they simply object to having employees who are too fey or too butch, regardless of their orientation – i.e., they object to their employee’s gender identity (fey-ness or butch-ness) not their sexual orientation. So those employees could still legally be fired, even under ENDA – or so the argument goes.
And Lambda says this isn’t just a hypothetical loophole. No, we’ve actually had numerous cases where courts have used this loophole to let anti-gay bosses off the hook. Wow, I thought. That’s pretty bad. Maybe the gay-only ENDA is a bad idea. So I did a little more digging. You’re not going to be pleased with what I found.
Here is an excerpt from Lambda’s letter to Barney:
You stated that you were not aware of any instances where state laws that prohibit only sexual orientation discrimination and not gender identity discrimination have proven inadequate. Unfortunately, such cases exist. For example, just two years ago, a federal court of appeal ruled that a lesbian who claimed that she was discriminated against because she did not conform to stereotypical expectations of femininity did not to have a viable claim under New York state’s Sexual Orientation Non-Discrimination Act (SONDA), which fails to include an express prohibition on discrimination based on gender identity and expression.
Wow, so there are numerous cases (note Lambda’s use of the plural) proving that when you don’t have gender identity included in the sexual orientation law, gay people can then be legally fired for being too fey or too butch because the state law is just too weak to protect us. Again, wow.
So, having borrowed $60,000 to get a law degree at Georgetown, I figured I’d make my parents happy and actually put that legal education to work. I got a copy of the case and read it for myself. The case is Dawson v. Bumble & Bumble, 398 F.3d 211. The salient parts of the decision are on the last two pages. Let me walk you through the case.
A butch lesbian works in a NY hair salon. She claims that while employed at the hair salon, several of her coworkers made disaparaging remarks about her not conforming to gender norms for a women, e.g., she claims that they said that she had a “dyke” attitude and they didn’t like it. She was subsequently fired, so she sued under NY and federal non-discrimination laws. Only the NY law is relevant to our discussion here since it, alone, covers sexual orientation (but it does not include gender identity).
Here is what the court found.
1. There was a disagreement among witnesses as to whether or not the disparaging comments were made at all.
2. Even if the court accepted that the disparaging comments were made, the lesbian employee could not prove that the coworkers who made the disparaging comments played any role whatsoever in her firing.
3. The court therefore sided with the defendants (i.e., against the lesbian employee), ruling that the plaintiff/employee had no facts to prove her case.
The court did not find, as Lambda Legal implies, that NY’s sexual orientation law is inadequate because it permits employers to fire someone for their dyke attitude. The court did NOT find that the NY law is too weak and has a massive loophole because it does not include “gender identity.” The court simply found that the defendant couldn’t prove her case, she had no facts to back her up. (I will add, however, that Lambda Legal just did a great service to the homophobes by claiming that under NY law you CAN legally fire a lesbian for having a dyke attitude – way to go, guys.)
I’m going to include the entire two pages of the opinion dealing with this, below, so you can read it for yourself.
This is the only case – the only case – that the “include trans in ENDA or die” crowd have to “prove” that you can be fired for being too fey or too butch under sexual orientation laws that don’t include gender identity (i.e, under the gay-only ENDA that Barney Frank is proposing). They don’t have “cases,” as Lambda claims, they have a single case. And the single case they claim has nothing to do with what they claim it does. The case is not an example of a butch lesbian not being protected under the law without gender identity. The case is an example of a court throwing you out because you don’t have any evidence to prove your case. It doesn’t matter what the law says, it doesn’t matter what categories of personhood the law covers, if you don’t have any facts to back you up. You’ll lose every time.
This is incredibly dishonest of Lambda Legal. I have a hard time believing that they’re such sloppy lawyers that they misread this case. But if they’re bad lawyers, they sure are great PR spinmeisters. Labmda has done a bang-up job of convincing people that this case, these caseS, are real, judging by the comments from our readers and judging by the repeated mention of this supposed-loophole in posts on other blogs.
Lambda should stick to the law and leave the disingenuous PR spin to others in their coalition. Here are the two pages from the case covering NY law on sexual orientation. Read it for yourself, you don’t need to be a lawyer, it’s that clear.
UPDATE: Oh, it gets worse. I just re-read the footnote at the bottom of the first page, below. The footnote makes clear that nasty comments about the lesbian employee could have possibly proven sexual orientation discrimination, but that the actual comments in question were too “ambiguous.” If the court wanted to rule that nasty comments weren’t covered by the state ENDA, it would have said the comments were irrelevant regardless of whether they were ambiguous or not. Instead, the court ruled that the comments were too ambiguous – meaning, less ambiguous comments might have been sufficient to prove a case of sexual orientation discrimination. That is the exact opposite of what Lambda alleges the court decided.
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