Gender Change May Be a Physical Disability

By Jonathan C. Sterling

As we have reported in the past, transsexual employees may be protected from discrimination, at least in some cases, by federal and state law. The decisions granting that protection have treated such discrimination as a violation of gender or sex discrimination law. However, courts have been reluctant to recognize that transsexual employees are physically disabled. Indeed, the Americans with Disabilities Act (ADA) specifically excludes transsexualism from its definition of disabilities. A recent state court ruling marks a departure from that theme.

Legally Handcuffed

Dana Peterson was born a male in 1967. In 1991, she began living full- time as a woman, and two years later, she underwent sex reassignment surgery. In 2004, she was sworn in as a Hartford police officer. She claims that over the next several years, she was subjected to on-the-job harassment because of her transsexualism. She also claims she was unfairly passed over for selection to the canine handling unit for the same reason.

Peterson filed an administrative complaint of discrimination with the Connecticut Commission on Human Rights and Opportunities (CHRO). A CHRO human rights referee found there was insufficient evidence to support her claims. He also found that her transsexualism didn’t constitute a physical disability under state antidiscrimination law. Peterson appealed to a Connecticut superior court judge, who issued his decision in late October 2010.

Not So Fast, Mr. Referee

The judge disagreed with the manner in which the referee analyzed the case, pointing out that he should have analyzed additional evidence produced by Peterson that might have shown discrimination. In addition, the judge found that Peterson’s transsexualism is a physical disability because she was prescribed medication before and after her surgery and she remains under the care of a physician, which will continue for the rest of her life.

The judge noted that his conclusion was the opposite of a decision issued almost 15 years ago by another superior court judge. The judge stated that attitudes toward transsexualism have changed since the older decision and that the shift in attitudes has been reflected in decisions by other courts. Thus, he sent the case back to the referee with instructions to reevaluate Peterson’s evidence in light of the decision.

Lesson

Although it was already the case that transsexual employees may be protected by antidiscrimination law, this decision expands that protection. As you already know, you are required to provide reasonable accommodations to disabled employees and engage in an interactive process to determine what accommodations are needed. Employers should note that the law isn’t settled regarding whether transsexuals qualify as physically disabled, but this decision suggests that at least some courts will find them to be.

Jonathan C. Sterling is an attorney with Jorden Burt LLP, specializing in employment law, with a concentration on defending organizations, municipalities and individuals against claims of discrimination, harassment, and retaliation. Jon has performed extensive consulting and compliance work for employers, including reviewing and drafting employee handbooks, employment agreements, non-compete agreements, and arbitration agreements. His compliance work has been wide-ranging; from WARN Act compliance to wage and hour issues.