Pride and transgender discrimination

The era in which transgendered people accepted their silencing and their marginalization is coming to an end.

By IDO KATRY
July 29, 2011 10:22
Katry

Ido Katry 58. (photo credit: Courtesy)

 
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Adi, a transgender woman, was employed in a store in Tel Aviv. From the moment she was hired, her gender variance was apparent to all and was respected by her coworkers. However, the first time she arrived to work wearing makeup and a dress, she was immediately asked to change her clothes. Her managers prohibited her from coming to work dressed as a woman and insisted on addressing her in the masculine form, showing blatant disregard for her gender identity.

When she insisted on her rights, Adi was fired and told that she must inform her employees in writing whether her intention is to work as a "man" or "woman." They made it clear that if she wished to work as a woman, she would not be rehired, whereas if she consented to work as a man her renewed employment would be considered.

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Adi is not alone and her story of workplace discrimination unfortunately is not unique. With the Jerusalem Gay Pride parade underway, and the general feeling of advancement of the LGBT rights in Israel, it is important not to forget the path still ahead.

There is a lot left to understand about transgender discrimination.

The term "transgender" is a political concept used to describe gender identities that do not fit neatly within socially accepted confines. Central to the general public perception is the belief that all people are divided into the two opposite sexes from which gender is derived directly: male and female. In this dichotomy, transgenders are people whose identities are incompatible with their bodies.

This is why transpeople feel like something is "wrong" with them, a feeling I know too well. As someone who grew up in this binary society, I knew that talking about my feelings of gender incompatibility was taboo. The more I delved into my own internal conflict, the more I realized that my discomfort did not come from any discrepancy between my biological sex and my gender but because I was committing a severe social transgression. For transgenders, the only way to avoid social sanctions is to "pass," to be identified with the sex or gender of their presentation, both in terms of appearance and behavior. The way to do this is to perform an identity that is either extremely "feminine" or extremely "masculine." But my personal experience has taught me that the accepted connection between sex and gender is a lie. Not only did I not want to be "masculine," but, given that the whole category is ostensibly derived from a biological sex, I would never belong to it because I was not born into it.

As a future attorney, I am asking questions about how the legal system can protect transgenders from real discrimination in the workplace and other arenas. Today, the transgender population's ability/desire to be "like everyone else" has great weight in determining their access to equal rights and to justice.



Transgenders who seek recognition of their identity must be more "normal" than the norm, i.e. they must adopt the rules of gender in their strictest, narrowest, and most sexist sense.

Protecting the ability of some transgender people to be "like everyone else" will leave unprotected precisely those who are most exposed to discrimination. Because as people become increasingly able to "pass" successfully, the chances that they will suffer discrimination because of their gender identity decreases.

Sexual discrimination is often thought of as differential treatment of women as compared to men and has been answered by examining whether the victim was discriminated against because he or she was a "woman" or a "man." Today illegal discrimination attributes importance to the essential differences between males who act in a masculine manner and females who act in a feminine manner. But when a woman is fired for being a woman, she is in fact being discriminated against because she is constantly establishing her identity through "feminine" markings - her clothes, speech, hair style, diction, spatial perception, and so on. In other words, she has created a gender presentation of herself as a woman. These external markings are the only things that the discriminating eye can discern. That eye cannot see the "biology" of the discriminated woman.

Recall that Adi wanted her employers to respect her identity as a transwoman not as a woman. Nevertheless, because her performance of femininity was not convincing enough, her employers labeled her appearance as "laughable" and liable to "scare away customers." She was asked not to come to work like that and subsequently fired. In seeking legal protection from sex discrimination, transgenders expose the fact that the category of "sex" does not represent a biological reality but rather the presentation of that reality, and it is the presentation that gives the biological its meaning - not vice versa. A transgender woman is no more "imitating" than any "real woman." A transgender person's complaint regarding discrimination should be based on the fact that sex discrimination is always discrimination on the basis of gender presentation. Therefore, the basis for comparison in cases of sexual discrimination must be reformulated.

In cases of discrimination on the basis of gender nonconformity, the basis for comparison should be individuals with coherent gender expression. That is, we must examine whether the person discriminated against received a different treatment from a person whose gender performance reflects social norms. Shifting the basis for comparison and redefining the categories of legal protection will ensure that discrimination on the basis of sex - be it biological, ontological, or social - will not be transparent.

And so Adi, who suffered from harassment in the workplace for her gender nonconformity, recently filed a lawsuit in a labor court. In the settlement procedure, her employers were required to compensate her in the amount of 30,000 NIS. This is not the first case and it certainly will not be the last one to reach our courtrooms. Both employers and employees must take into account the fact that the era in which transgendered people accepted their silencing and their marginalization - is coming to an end. This is the new pride.

The writer is a legal intern at the Association for Civil Rights in Israel (ACRI)


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