Ido Katry 58.
(photo credit: Courtesy)
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
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
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
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.
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.
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.
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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