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Today is Wednesday, November 28, 2007


Minnesota Gender Law Narrowed

Appeals court rips another hole in protections for transgenders

Following on a state supreme court decision in late 2001 that narrowed the application of a Minnesota statute protecting transgendered employees of private sector companies from discrimination, the state Court of Appeals issued a new ruling on December 17 that also severely undermines the ability of transgendered public employees to secure protection under the law.

The court held that public officials and, by extension, the government itself, are immune from suit under the state's Human Rights Act for discrimination that is neither willful nor malicious.

The John Doe plaintiff was hired by the Minneapolis Police Department as an openly transgendered person, in the process of transitioning from a genetic female to a male. Professionals treating Doe recommended that he live as a male, that others refer to him using male pronouns, and that he use male restrooms and shower facilities.

Doe and his lawyer initiated discussions with the police department to work out these accommodations, but after many meetings and internal consultations, and based on the advice of department counsel, the police decided they were unable to make the requested restroom accommodation.

Doe resigned in March 2000, claiming that he had been "constructively" discharged when he was assigned to a shift in which no unisex bathroom was available and he was not permitted to use the men's room.

Doe filed suit under the state human rights act, which specifically covers sexual orientation, the definition of which includes situations where people encounter discrimination due to their gender identity. The City of Minneapolis moved to dismiss on grounds of "vicarious immunity."

Under Minnesota law, state officials performing discretionary functions calling for policy judgments are generally immune from suit when they are acting in good faith. The city argued that if the police department personnel who made these decisions were immune, then the city itself should be immune as well, since its only liability would be vicarious, and there still would be no bad faith shown.

The trial judge in Minneapolis denied the city's motion, concluding that if the law was violated, then somebody had to be liable, and if the officers were immune, then the city would be liable.

The court of appeals disagreed, finding that the reasoning behind the doctrine of vicarious liability supported extending immunity to the city in cases where the decisionmakers had not acted willfully or maliciously. In this case, the court noted, there were numerous consultations, and the department sought legal advice before taking any action. The legal advice, subsequently confirmed by the state supreme court's decision in 2001 in the Goins v. West Group case, was that an employer is not required to allow a genetic female to use a men's room, or vice versa, despite their transgendered status. The court also noted that the officials making decisions about Doe's requests also had to take into account a city ordinance in Minneapolis making it a violation of the law "for one to use a restroom designated for a particular sex, when one is not of that sex."

"Thus, in making their decisions," wrote Judge Roger M. Klaphake for the court of appeals, "city officials attempted to ascertain and understand Doe's rights and the state of the law. There is no evidence that they willfully or maliciously trampled on those rights. In light of their extended consideration of the issues and the uncertainty of the law, we conclude that city officials did not engage in willful or malicious acts. We cannot conclude that their treatment of Doe was so at variance with expected conduct that discrimination was the probable explanation."

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