Saturday, April 21, 2012
Discrimination Lawsuit Aims to Define Sex Beyond Gender By RICHARD PÉREZ-PEÑA
Mr. Devoureau, who was born physically female, is a man at the Motor Vehicle Commission, at theSocial Security office, at home, at job interviews. But what about at the urinal?
In a case with a truly unusual set of factors, Mr. Devoureau filed a discrimination lawsuit on Friday that could break new ground in New Jersey and across the country, turning on the question of who is or is not a man. An employer fired Mr. Devoureau because it said only a man was allowed to do his job: watching men urinate into plastic cups at a drug treatment center.
Mr. Devoureau, 39, says he has identified himself as a man all his life. In 2006, after he began taking male hormones and had sex-change surgery, he adopted the name El’Jai (pronounced like L. J.). A new birth certificate issued by the State of Georgia identifies him as male, as does his New Jersey driver’s license, and the Social Security Administrationmade the change in its records.
“As long as I’ve been a person, I’ve lived as a man,” he said in an interview. “At age 5, I did everything a boy did: I climbed trees, I played football, I played with trucks. Most of the people in my life, all they know is I’m male.”
Last June, Urban Treatment Associates in Camden hired Mr. Devoureau as a part-time urine monitor; his job was to make sure that people recovering from addiction did not substitute someone else’s urine for their own during regular drug testing. On his second day, he said, his boss said she had heard he was transgender.
“I said I was male, and she asked if I had any surgeries,” he said. “I said that was private and I didn’t have to answer, and I was fired.”
Calls to Urban Treatment were not returned. But after Mr. Devoureau made a complaint to the state’s Division on Civil Rights, the treatment center filed a response in January saying that Mr. Devoureau’s dismissal “was not motivated by, nor related in any way to, any discriminatory intention.”
Civil rights laws and court decisions allow limited cases of favoring one group over another, like giving preference to women for jobs as nurses in maternity wards. In its January filing, Urban Treatment said that firing Mr. Devoureau was legitimate, “since the sex of the employee engaged in that particular job position is a bona fide occupational qualification” — implying that Mr. Devoureau was not really a man.
Mr. Devoureau’s suit, filed in Superior Court in Camden, is not the first job discrimination case brought by a transgender person, though those remain rare. But Michael D. Silverman, executive director of the Transgender Legal Defense and Education Fund, said it was the first employment case in the country to take on the question of a transgender person’s sex.
Mr. Silverman’s group and the law firm Gibson, Dunn & Crutcher are representing Mr. Devoureau.
New Jersey laws ban job discrimination based on a long list of criteria like age, religion, sex and race; in 2006, the state added “gender identity or expression” to that list. But five years later, Mr. Silverman said, no cases using the gender identity passage have been brought to a verdict, though others might have reached settlements.
New Jersey is one of 12 states that ban discrimination based on transgender status; New York State does not, but New York City does.
Mr. Devoureau now has another part-time job, as a package handler for a shipping company. Although his $10-an-hour post at the treatment center would hardly strike most people as a dream job, he wants it back. He says he needs the additional income to support himself and his 18-year-old son, and in a weak economy, he will take what work he can find.
Mr. Devoureau guards his privacy, refusing to discuss precisely what changes have been made to his body, or to say what name he was originally given, and he knows that his case could force such things into the open.
“They were judging me for who I am, not for the job I was being asked to do, and that’s wrong, and I was hurt,” he said. “I’m doing this so everyone knows it’s wrong, so it doesn’t happen to anyone else.”