- The Washington Times - Thursday, September 27, 2007

A Utah agency was within its rights to fire a male bus driver who underwent training as a man but later dressed as a woman and used women’s restrooms on his routes, a federal appeals court has ruled.

Transsexuals are not a constitutionally protected class, the 10th U.S. Circuit Court of Appeals said in a case involving Krystal S. Etsitty, who was born male but is preparing to undergo a sex-change operation.

Presenting herself as a man and using male restrooms, Ms. Etsitty underwent training as a bus driver with the Utah Transit Authority (UTA), the court said.

She later told a supervisor that she was a transsexual undergoing treatments and would be coming to work dressed as a woman. She also “began using female restrooms while on her route,” the court said.

When Betty Shirley, an UTA operations manager, heard about a male bus driver wearing makeup, she and other officials decided there was the possibility of liability for the UTA “if a UTA employee with male genitalia was observed using the female restroom.” They fired Ms. Etsitty, who sued the agency for discrimination.

In 2005, the U.S. District Court dismissed the case and Ms. Etsitty, backed by eight homosexual rights and civil liberties groups, appealed.

However, the federal appeals court upheld the dismissal.

“Scientific research may someday cause a shift in the plain meaning of the term ‘sex’ so that it extends beyond the two starkly defined categories of male and female,” the appeals court said in its ruling last Thursday, its first on constitutional rights for transsexuals. But at this time, “we conclude discrimination against a transsexual because she is a transsexual is not ‘discrimination against sex.’ Therefore, transsexuals are not a protected class” under Title VII of the Civil Rights Act of 1964.

Ms. Etsitty’s legal action is one of several related to “restroom rights.”

Earlier this year, a Scottsdale, Ariz., nightclub owner was charged with discrimination for banning several transsexual patrons from his bar after women complained of their presence in the ladies room; and Loehmann’s, a New York clothing store chain, settled a lawsuit by agreeing to allow transgender persons to use fitting rooms, restrooms and other store facilities consistent with their gender identity, according to the Transgender Legal Defense & Education Fund.

Such incidents have led to calls for transgender work protections; gender-neutral bathrooms, like the ones the University of Vermont built in its new student center; and guidance on “bathroom activism.”

Bathroom activism is needed to ensure that bathrooms are safe for anyone who faces discrimination based on gender identity, race, income level and disability, the San Francisco-based Transgender Law Center said in a 2005 report.

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