Transsexual Rights in the Federal Labor System
| Autor | Rafael Cruz |
| Cargo | Interamerican University of Puerto Rico School of Law, third year student. |
| Páginas | 69-84 |
2010 69
Revista de Estudios Críticos del Derecho
Transsexual Rights in the Federal Labor System
By: Rafael Cruz149
“Laws are considered a pattern
for a conduct or for social behavior.
When certain social behavior is not protected
or recognized by the law,
there is no access to justice.”
Felipe Bucito
Introduction
This article is about transsexuals, persons like you and me that
need protection against labor discrimination including the assur-
ance that their sex or sexual orientation will not determine their
eligibility for employment, fi nancial stability and equal protection
under the law. Often, lawyers in the profession encounter laws that
are established to protect the majority even when discrimination
is prohibited. This article advocates for transsexual rights and pro-
vides a reference for lawyers confronted with a case involving the
rights of a transsexual person in the workplace. The question that
judges, lawyers and future lawyers need to ask themselves is: Are
transsexuals protected from employment discrimination?
I. The Transsexual Condition
Transsexualism is a condition that exists when a physiological
normal person experiences discomfort or discontent about his or
her biological gender and prefers to be the other gender. Such per-
sons may be diagnosed with a condition named gender dysphoria
or Gender Identity Disorder (hereinafter GID).150 GID is a“…per-
149 Interamerican University of Puerto Rico School of Law, third year student.
150 Lie v. E.E.O.C. Appeal No. 01851097 Sky Pub. Corp. 15 Mass. L. Rep. 412
(Mass. Super. Ct., 2002).
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Revista de Estudios Críticos del Derecho70 Tomo 6
sistent discomfort about one’s assigned sex or a sense of belonging
to the other sex and a desire to be of the other sex. 151
This discomfort is generally accompanied by desire to utilize
hormonal, surgical, and civil procedures to allow the individual to
live in his or her preferred role. GID has two main characteristics:
A strong and persistent cross-gender identifi cation, which
is the desire to be, or the insistence that one is, of the
other sex; and (2) persistent discomfort about one’s as-
signed sex or a sense of inappropriateness in the gender
role of that sex. 152
The transsexual condition generally appears at an early age
and it is incurable because counseling will not change the person’s
state of mind or desire of being of the opposite sex. 153 The diagno-
sis for transsexualism is an appropriate one only if the discomfort
has been continuous for at least two years, and is not due to an-
other mental disorder, such as schizophrenia. 154 Sex reassignment
surgery for male to female transsexuals:
…involves the removal of the external male sexual organ
and the construction of an artifi cial vagina by plastic
surgery. It is supplemented by hormone therapy and
treatment that facilitates the change in secondary sex
characteristics, such as breast development.”155
151 The American Psychiatric Association Diagnostic and Statistical Manual of
Mental Disorders, (4th ed., 1994).
152 Id.
153 Employment Handicap Discrimination Based on Gender Dysphoria, 25 Am.
Jur. 3d 415 § 1 (2005) .
154 American Psychiatric Association, Diagnostic and Statistical Manual of
Mental Disorders.3rd ed., Washington, D.C.; 1980; Comment, The Law and
Transsexualism: A Faltering Response to a Conceptual Dilemma, 7 Conn.
L. Rev. 288, 288 n. 1 (1975), Comment, Transsexualism, Sex Reassignment,
Surgery, and the Law, 56 Cornell L. Rev. 963 n. 1 (1971).
155 Comment, 56 Cornell L. Rev., Supra note 3. at 970 n. 37; see also Arthur
Jones. Operative treatment of the male transsexual, in transsexualism and
sex reassignment. R. Green & J. Money eds., Texas, 1969.
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