Civil Rights Commission Rules Sex Discrimination Law Covers Transgender Employees

The Hawaii Civil Rights Commission has ruled that its executive director has the authority to look into allegations of sexual discrimination in the workplace filed by five transgender and transsexual employees.

The names of the employees and their employer were not released. The ruling does set in motion a likely court challenge as to whether a person of ambiguous sexual orientation can claim discrimination based on gender.

The case involves five employees who filed a complaint with the commission and said they were subjected to adverse employment action because of "the employer's stereotyped views of how a man or woman should look or behave," according to documents filed with the commission. Details of any discrimination and the nature of the business were not released, but the workers were described as "male-to-female" "transgendered" and "transsexuals" who wore women's clothing and exhibited feminine behavior at work.

The unnamed employer challenged the commission's authority to investigate the allegations. Attorney Richard Rand, who represents the employer, declined to comment yesterday, but an appeal of the commission's ruling to the state Circuit Court is expected.

In a document filed with the commission June 3, Rand argued that Hawaii?s discrimination law "expressly excluded transsexuals and others with gender identity disorders" from protection.

Rand said there is a difference between discrimination based on "immutable characteristics" that have been traditionally protected and discrimination based on lifestyle choices that have limited protection.

"To equate transgendered individuals and transsexuals with other minorities based upon immutable characteristics such as race, color or being born female is completely inappropriate," Rand said.

But the five-member commission agreed with executive director William Hoshijo, who filed a petition to the commission to investigate the complaints. Hoshijo argued that employment discrimination because someone is a transgender or transsexual is discrimination based on sex.

"All forms of discrimination in employment because of sex are against public policy," the panel wrote, "and the law must be liberally construed to accomplish its purpose."

Hoshijo said his office will launch an investigation into the complaints and determine if the employees were discriminated against.

The Hawaii Civil Rights Commission was created in 1988 to investigate complaints of discrimination based on gender, race or disability. The commission has law-enforcement powers and can levy civil fines.