While Bruce Jenner can actually earn money because he is transitioning, or announcing that he is transitioning, most transsexuals cannot. In contrast, many transsexuals who are considering transitioning at work are probably very concerned about the backlash they may face. Aside from the real danger of being physically attacked for challenging society’s gender norms, transsexuals often face discrimination in the workplace. Many employers freely discriminate against transsexuals who have already transitioned from one gender presentation to another. But those transsexuals who are employed, and need to transition, must do so under the scrutiny of their employers and coworkers. Navigating the changes and anticipating and dealing with others’ reactions can be a very daunting task. In many states, employers can legally discriminate against transsexual employees, including terminating those employees. New Jersey employers, however, cannot.
The New Jersey Law Against Discrimination (“LAD”) protects employees against discrimination based on a number of characteristics, including: gender identity or expression, affectional or sexual orientation, sex, pregnancy, familial status, marital status, domestic partnership status, civil union status, race, creed, color, national origin, nationality, ancestry, age, atypical hereditary cellular or blood trait, genetic information, liability for military service, mental or physical disability, perceived disability, and AIDS and HIV status. In late 2006, the New Jersey legislature amended the LAD to include “gender identity or expression.” That change went into effect in June, 2007. However, back in 2001, the New Jersey Appellate Division held that the LAD banned discrimination against transgender employees, as a form of sex and gender discrimination.
It is incomprehensible to us that our Legislature would ban  discrimination against heterosexual men and women; against homosexual men and women; against bisexual men and women; against men and women who are perceived, presumed or identified by others as not conforming to the stereotypical notions of how men and women behave, but would condone discrimination against men or women who seek to change their anatomical sex because they suffer from a gender identity disorder. We conclude that sex discrimination under the LAD includes gender discrimination so as to protect plaintiff from gender stereotyping and discrimination for transforming herself from a man to a woman.
Enriquez v. West Jersey Health Systems, 342 N.J. Super. 501, 515-516 (App.Div. 2001)
For the most part, then, transsexual employees in New Jersey cannot be discriminated against due to transitioning. And if they do face such discrimination, they can rely on the LAD to sue their employer or former employer. Federal employees who work in New Jersey need to look to federal law to protect their rights. Courts have held that Title VII of the Civil Rights Act of 1964 bars discrimination against transgender employees, as sex discrimination. And in a 2012 case, Macy v. Holder, the EEOC held that discrimination against transgender employees is sex discrimination. Additionally, the Civil Service Reform Act of 1978 bars discrimination against employees based on conduct which does not affect their job performance.
Transgender women and men who are transitioning, or considering doing so, have to deal with many issues in their personal, public, and financial lives. In New Jersey, facing discrimination at work should not be one of them.
By Jennifer Vorih, Esq. and Ty Hyderally, Esq.
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