Appellate Court Finds Transsexualism Protected By State Law

Imagine one day one of your top professional employees, Carlos, removes all vestiges of facial hair, begins to sculpt and wax his eyebrows, pierces his ears and starts wearing emerald stone earrings. Suppose further Carlos begins to manicure and polish his nails, starts wearing a ponytail and grows breasts. You later learn that Carlos is diagnosed with gender dysphoria. After you terminate him, Carlos changes his name to Carla and undergoes sex reassignment surgery.

While you may believe this scenario is extreme, it is the fact pattern the New Jersey Appellate Division addressed in Carla V. Enriquez, M.D., v. West Jersey Health Systems, et al., where the Court concluded that the New Jersey Law Against Discrimination ("LAD") protects transsexualism based upon the law's prohibitions against sex and handicap discrimination. The Court's decision serves as a reminder of a continuous theme throughout decisions under the LAD: management must avoid assumptions or knee jerk reactions and proceed cautiously even in instances believed to be extreme.1 The case provides both a lesson and an opportunity to review a few key distinctions under federal and state law.

According to the Appellate Court, the rationale underlying federal court decisions and the majority of decisions by other State courts, which conclude that transsexualism is not protected under the rubric of sex discrimination, is too constricted. Notably, the LAD includes many individuals within the scope of its protection who are not protected under comparable federal laws. Further, the resounding battle cry of the LAD is evisceration of invidious discrimination. The Court relied upon both points as key components in its decision. The Appellate Court found it incomprehensible that the New Jersey legislature would ban discrimination against heterosexuals, homosexuals, bisexuals, and those perceived, presumed or identified by others as not conforming with stereotypical notions of how men and women behave, but not protect Carla against gender-based sex discrimination due to gender stereotyping and transforming himself from male to female.

Reaching its decision, the Appellate Division relied upon the trial court's decision in Zalewski v. Overlook Hospital which, in turn, strengthens the conclusion reached in the Zalewski case: the LAD prohibits harassment by male co-workers directed at another male who they believed was a virgin. The Appellate Division went on to quote the Zalewski court's...

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