Feature | Gloves Come Off: Round One begins at the Legislature to end prejudice against the transgendered 

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Lost in Law
One of the most nationally prominent transgender cases happened here in Utah when, in 2005, Krystal Etsitty sued the Utah Transit Authority (UTA) for wrongful termination. Krystal was “Michael” at the time she started driving a bus for UTA in 2002. Etsitty disclosed to her superiors when she was hired that she was undergoing gender transition. Soon after, she was fired.

Etsitty lost her case in Utah’s federal court and also on appeal at the 10th Circuit Court of Appeals in Denver. In a written statement, UTA attorney Jennifer Kohler argued that the 10th Circuit Court upheld the Utah ruling in 2007 because transgender individuals aren’t protected by existing discrimination law and because UTA had valid nondiscriminatory grounds for firing.

“Etsitty sued for discrimination based on not following male stereotypes,” writes Kohler, but “UTA had a legitimate nondiscriminatory reason for firing her: the fear of legal liability from one of its male employees using women’s restrooms while on a UTA route.”

Because Etsitty was hired on as an “extra board” operator, meaning she had no permanent route, UTA couldn’t accommodate the dozens of public restrooms she might have used along the several routes she was assigned. The case pointed out that, even if discrimination had occurred, current law could do nothing about it.

“When employers and society as a whole don’t correct themselves, then the Legislature is important [in] creating the structure that other people won’t self-impose,” says bill sponsor Johnson.

Johnson’s bill would extend existing nondiscrimination law on a state level to individuals based on sexual orientation and sex identity. While workplace discrimination laws cover hiring and firing and everything in between, Johnson wrote a specific mechanism into the bill prohibiting employers from adopting any kind of “quota” system. “We’re not telling [employers] how many members of a diverse community you need to employ; we’re just saying you can’t discriminate.”

She also wrote the bill to allow religious educational institutions such as Catholic schools or Brigham Young University to be exempted. With these conditions in place, Johnson hopes the bill will be received as protecting people who want to be judged only on the quality of their work.

Johnson realizes she’s got her work cut out for her in winning in a Republican-dominated Legislature that has historically fought as a bloc against all gay- and transgender-rights bills. “I think many legislators would be surprised to find this kind of discrimination is going on,” she says.

Johnson hopes to at least start a dialogue this session and imagines her greatest success for 2008 will be to introduce the needs of a community which may seem alien to the largely white, heterosexual male Legislature. “I’m going to thank my colleagues for hearing the bill and then gently move them forward.”

For Buttars, this bill only brings back bad memories. “This whole thing is just Act 2 of affirmative action,” he says.

Despite the non-quota mechanism Johnson has written into the bill, which she believes “deflates” the affirmative-action argument, Buttars remains unconvinced the bill won’t prompt a barrage of lawsuits.

“What do you think will happen when a gay sues for not getting hired? Or if the guy who was twice as qualified [doesn’t get hired], he’ll turn around and sue, as well. There’s no winning,” Buttars says.

Johnson, however, doesn’t see the inclusion of these extra groups for protection as the Pandora’s box that Buttars and others fear. “We already protect some people now for the choices they make, like not discriminating based on religion,” Johnson says.

Buttars says that, while discrimination is wrong, it doesn’t necessarily mean the government has a place in stopping it if that means favoring a subgroup. Laws exist to protect people from religious discrimination, for example, but that doesn’t mean there’s a separate law protecting only Mormons, argues Buttars.

Other critics worry how the law would work in practice.

“The law only understands human action and behavior,” argues Paul Mero of The Sutherland Institute, a conservative think tank, “and now we’re introducing a concept [sexual orientation and identity]. The problem is how do we define sexual orientation and identity under the practice of the law?”

Mero worries that, in practice, if an LGBT employee were fired, and the employer wasn’t aware of his or her sexual orientation, the employee could then use the issue of sex identity or orientation as grounds for a lawsuit.

Even with transgender employees, for example, where the change is physically noticeable, Mero believes the legislation is overly broad.

“Working relationships are very real and very nuanced, and [this bill] is trying to create a civil statute to broadly address these nuances. It’s not sound policy to me,” Mero says.

Buttars agrees and considers the bill to offer unfair privileges to a subgroup. “This nation doesn’t protect subgroups, of any kind,” Buttars says. “Some people not liking other people is an issue, sure. But that doesn’t justify a complete separate protection.”

Will Carlson, director of Equality Utah, supports Johnson’s bill. He believes existing laws and institutions are stuck to a strictly anatomical understanding and interpretation of gender. “Transition is a very personal matter. How far they go and when they decide to [make the transition] … these are private decisions. What matters is that they clearly present their gender,” Carlson says. “What’s going on in their pants is really irrelevant. “We’re not trying to get the Legislature to condone the morality of the LGBT community. We just want to stop people from getting fired for no other reason than ... being LGBT,” Carlson says.

Still, whether or not legislators will have a chance even to hear the bill remains to be seen. As of press time, the bill has been moved to the conservative Business and Labor Committee, from which it may never escape to the legislative floor.