In 2003, California enacted a statewide ban on discrimination based on sexual orientation and gender identity in both public and private employment. Other states soon followed suit, and currently 12 states and the District of Columbia ban employment discrimination based on gender identity. However, there have been very few court challenges of hiring or other employment decisions in California or throughout the country, and not a single case has gone all the way to a court decision (although several have ended in settlement).

However, a recently filed employment discrimination case may break new ground in this relatively new legal landscape. A New Jersey man has filed suit against a former employer who the man says fired him after learning that he was transgender.

The man had been hired by a drug treatment center to supervise drug testing processes. Specifically, the man watched center clients urinate into plastic cups to ensure that they did not substitute someone else's urine for their own during the drug testing process. Soon after he started working at the center, the man's boss allegedly asked if he was transgender, and if he had any surgeries. The man refused to answer, and was soon fired.

The man filed a complaint with the state's Division on Civil Rights. The treatment center responded, stating that the man was fired because he did not meet the job qualifications - essentially, because he was not a man. However, the man responded, he has changed both his physical and legal identity to reflect that he is a man, and therefore the firing was improper and illegal.

It will be interesting to see if this case progresses to trial and, if so, what the outcome will be. We will continue to update our blog with any new developments.

Source: New York Times, "A Lawsuit's Unusual Question: Who Is a Man?" Richard Perez-Pena, 10 April 2011