Federal District Court Rules No Protection for Transgendered Employees

According to a Louisiana Federal District Judge?s ruling, companies may discriminate against employees for legal activities pursued while not on the job.

Peter Oiler, a truck driver and Winn-Dixie employee for more than 20 years, was fired by that company after managers learned that he occasionally cross-dressed during his off-duty hours. Winn-Dixie found no fault with
Oiler's work performance, stating that he was fired because of concern that customers might avoid the store if they heard that a cross-dresser worked for Winn-Dixie. Oiler, with the help of the ACLU, filed a civil lawsuit alleging discrimination in employment on the basis of sex under Title VII of the Civil Rights Act of 1964.

Judge Lance Africk ruled on September 16, 2002, that his then-employer, Winn-Dixie, had the legal right to fire him merely for being transgendered.

In his decision, Judge Africk noted that Congress has never attempted to provide protection from employment discrimination for transgendered citizens of the United States. "From 1981 through 2001, thirty -one proposed bills have been introduced in the United States Senate and the House of
Representatives which have attempted to amend Title VII and prohibit employment discrimination on the basis of affectional or sexual orientation. None have passed. ? In contrast to the numerous failed attempts by Congress to include affectional or sexual orientation within Title VII's ambit,
neither plaintiff nor defendant can point to any attempts by Congress to amend Title VII in order to clarify that discrimination on the basis of gender or sexual identity disorders is prohibited."

The judge ruled that Oiler?s case ?is not a situation where [an employee] failed to conform to gender stereotypes. [Oiler] was not discharged because he did not act sufficiently masculine or because he exhibited traits normally valued in a female employee, but disparaged in a male employee.

Rather [he] disguised himself as a person of a different sex and presented himself as a female for stress relief and to express his gender identity. ? This is not just a matter of an employee of one sex exhibiting characteristics associated with the opposite sex. This is a matter of a person of one sex assuming the role of a person of the opposite sex.?

Despite the judge?s unfavorable ruling, he did note that, ?[Winn-Dixie?s] rationale for [Mr. Oiler?s] discharge may strike many as morally wrong. However, the function of this court is not to raise the social conscience of [Winn-Dixie?s] upper-level management, but to construe the law in accordance with proper statutory construction and judicial precedent," adding that he "cannot, therefore, afford the luxury of making a moral judgment."

Contacted at the Southern Comfort transgender convention, Peter Oiler?s first comment was, ?I?m disappointed. But if it had to come, I?m glad it came while I was here, surrounded by friends, well-wishers, and activists.? Oiler?s wife, Shirley, agreed with his comments.

Oiler said that he is pleased to have found employment with a more tolerant company but is angered that so many transgendered people -- cross-dressers, transsexuals, and other gender variant people ? can be subjected to such blatant discrimination as he had been.

?This discrimination applies to all gender variant people, including gays and lesbians,? he said. ?If a company is that upset about a part time cross-dresser, you can bet that they don?t want gays and lesbians on the job, either.?

Courtney Sharp, a transgender activist who helped Oiler develop his case, observed, ?The Judge does not seem to recognize that Representative Barney Frank, a chief drafter of the current Employment Nondiscrimination Act (ENDA), left gender identity out of the bill because he maintains that we already have protections under Title VII. Obviously Representative Frank and Judge Africk have differing views.
Hopefully, Representative Frank will be willing to publicly comment on this ruling to ensure that all federal judges understand that transgender persons are protected by Title VII.?

Peter Oiler may be disappointed, but he is not ready to give up the fighting for the civil rights of transgendered people. ?It doesn?t pay to stop now,? he said. ?Too many people are unemployed because of these issues. We won?t stop fighting.?

When Robyn Walters, Secretary of the National Transgender Advocacy Coalition
expressed NTAC?s appreciation of and support for his legal struggle, Oiler replied, ?The transgender community must get its act together and take one issue at a time. So many problems go back to employment. Solve that and then go for other issues.?

Although no formal decision has been announced on appealing the District Court ruling, Oiler stated that he and ACLU attorney, Ken Choe, would review the decision in detail and decide how best to contest it point by point.


NTAC, the National Transgender Advocacy Coalition, is a501(c)(4) political advocacy coalition working to establish and maintain the right of all transgendered, intersexed, and gender-variant people to live and work without fear of violence or discrimination.