There are a lot of different ways that we understand and interpret the concept of ‘gender’ in modern life. Some people think it’s a fact of biology; some people think it’s a social construct, some have more complicated but ultimately inclusive ideas; some people don’t think about it at all. In concrete terms, it tends to manifest itself in our physical presentation, our clothes, our names, our legal documentation and drivers’ licenses, our identity as perceived by ourselves and others. It seems generally agreed upon that taking all of those factors together will give you at least some picture of a person’s gender identity.
The state of New Jersey, however, seems to be operating under some other idea of what gender is, and it looks like they’re going to have to defend it in court. This is the story of El’Jai Devoureau, whose name, physical appearance, driver’s license, Social Security records, birth certificate and most importantly his own assertion of his identity all identify him as male. But Devoureau was fired from his job with Urban Treatment Associates because he was born with female genitals.
“As long as I’ve been a person, I’ve lived as a man,” he said in an interview. “At age 5, I did everything a boy did: I climbed trees, I played football, I played with trucks. Most of the people in my life, all they know is I’m male.”
Last June, Urban Treatment Associates in Camden hired Mr. Devoureau as a part-time urine monitor; his job was to make sure that people recovering from addiction did not substitute someone else’s urine for their own during regular drug testing. On his second day, he said, his boss said she had heard he was transgender.
“I said I was male, and she asked if I had any surgeries,” he said. “I said that was private and I didn’t have to answer, and I was fired.”
What makes the situation even more complicated is that New Jersey is one of the very few states that actually does have anti-discrimination language protecting transgender people from job discrimination – one of only 12 in the US. And New Jersey is the only state that has an apellate precedent that clearly states that transgender and/or transsexual people should be treated as the sex that they identify with.
In MT v. JT, 355 A.2d 204 (N.J. App. Div. 1976), a New Jersey appeals court held that “if the anatomical or genital features of a genuine transsexual are made to conform to the person’s gender, psyche or psychological sex, then identity by sex must be governed by the congruence of these standards.” Almost every other court in the U.S. that has considered the issue has gone in the other direction.
But Devoureau’s boss claims that in this case, due to the sensitive nature of the job, it’s an absolute requirement that Devoureau be male — but by that they don’t really mean “male,” they mean their genital-focused definition of “male.” So, due to whatever seems to be nothing more than hearsay, Devoureau apparently isn’t “male” enough.
It’s very rare for any case like this to actually go to court; in most parts of the country, legal protections for trans people are so pitiful that there would be no point. It’d just be an exercise in being forced to reveal personal medical history in a courtroom while paying for expensive lawyers. But New Jersey’s case is so unique that this lawsuit has a better chance of creating a previously unheard of precedent than any before it.
Bilerico reports that “there are three counts to the complaint, one for sex discrimination, one for gender identity discrimination and one for disability discrimination.”
It will be very interesting to see how all three of those ideas play out in court, and how the legal system untangles them. (Bilerico reports that the disability discrimination count is there because “it underscores the nature of the discrimination against transsexuals — not only discrimination based on physical attributes, but discrimination based on psychological identity.”)
Hiring discrimination and transphobia on the job are huge issues for the trans community, and a large part of why they have such disproportionately high levels of homelessness and poverty. And as is always the case, the situation is even more dire for trans or queer people of color, who also have to bear the brunt of the institutionalized racism of the job market. If Mr. Devoureau can win this case, it will be a huge victory for a community who have been denied equal protection under the law for far too long.
Also interesting is the idea that Devoureau’s employer clearly harbors of an inherent and unchangeable fact of sex tied to gender – that even though the powers-that-be had agreed that Mr. Devoureau is in fact male, and had affirmed this truth in every place that the government records sex or gender, this was still understood to be in opposition to some ineffable truth of ‘real’ gender. How will that point of view be defended in court, and with what evidence?
This case has all the signs of being historic in terms of how the law deals with sex, gender, and identity; we’ll all be watching it closely, and wishing Mr. Devoureau the best. His efforts are an opportunity to change the future for a lot of people, and he knows it. “They were judging me for who I am, not for the job I was being asked to do, and that’s wrong, and I was hurt,” he said. “I’m doing this so everyone knows it’s wrong, so it doesn’t happen to anyone else.”
whichever outcome this case has, i think this dude is awesome
x 2
Sensitive nature of the job?
What about health care staff who care for clients of the opposite sex, like male gynecologists?
There are things called professionalism and confidentiality that people are capable of regardless of how they personally identify.
+1 for the last paragraph
I fully agree! And can we do away with the gender segregation around the medical system/related items anyway? My doctor is a man and I have no problem with him giving me my physicals.
Mr.Devoureau=hott
glad i’m not the only one who had that thought ;)
NEW JERSEY!
So badass.
This bullshit cannot stand. If it takes lawsuits to force folks to treat trans* people like, y’know, PEOPLE then so be it. Best of luck to Mr. Devoureau!
Mr. Devoureeau is totally awesome and its a case to watch. Created a google alert to track.
I have to say, in the midst of the suckitude of Mr. Devoureau being fired, I took some serious heart from his story, because the idea that his parents and his community seem to have let him (or at least not completely blocked him from) live as his gender instead of his sex from the age of five? Is awesome, and makes me want to find the supportive people that seem to have been around him and hug them.
x2 xtra hugs for them as well and to you, beautifully expressed.
I am rooting for this man in major ways! I will be watching his story very closely! Good luck to him! :)
While this is a sucky situation, the fact that it happened in New Jersey could mean something good for the case. Good luck to him!
Um, this may be a little crass, but why do you need to be born with a penis to check urine?
This guy is awesome, and I’m interested in seeing how everything plays out.
That was my first thought as well when I read the article. I can’t imagine that it should make a difference…well I can imagine how people might use really twisted logic to think that it matters….
I know that wasn’t actually the point. The fact is that his boss thought he was transgendered and since she apparently can’t wrap her head around anything that hasn’t been explicitly defined for her by heteronormative society, she decided to get rid of him. If you actually think about it though, that’s what this entire debate boils down to.
agreed. i’m very interested in seeing how this turns out in the courts.
cisnormative, rather.
as a trans guy I am very thankful for his courage to stand up for himself and other tans people by fighting this and not just accepting the discrmination as a part of life.
WELlll, for some people their sex IS the only way in which they identify with their “gender”, for starters, since the whole definition of gender is that which is the socially constructed mores surrounding a certain sex. Sex wise, I am a female, and so I will identify as such (female), but I don’t purport and in fact explicitly deny that I have all or even most of the traits associated with femininity. Nor do I think they are important to my identity as a female…only my vagina is.
So, in the case of this job, the requirement might not be that he be of the male “gender”, it might simply be that he be of the male “sex”. I.e. he has a penis. Haven’t you heard someone tell you it’s ok to change in front of your roommate or in the locker room because they “have the same parts as you” and therefore it’s “socially acceptable” to see each other naked? Nevermind the fact that this makes NO sense for a variety of logical reasons (they don’t have the same parts as me, for starters, because we’re all unique little flowers…and men who have had sex with women or accidentally seen their sister or mother or a woman naked or are doctors or have seen a picture or whatever or basically all men have also ‘seen it before’! So um…).
I mean quite frankly, this is a larger issue than a transgender issue. Can a gay male not work with a female patient? What about lesbians, can they not work with female patients? And what about surgeons, like trauma surgeons, don’t they frickin’ see naked people of either gender all of the time?? Where the hell exactly are we drawing the line here, and why? Why exactly does it make it less invasive for a guy to look at another guy’s junk, versus a girl looking at another guy’s junk? I can understand why women would feel comfortable with being seen by only their same sex due to the facts of sexual violence, but quite frankly, as in the trauma surgeon situation (or really in many surgical situations), women are naked in front of the doc and really don’t have a choice as to doc’s gender. So why do we give people choices in some situations?
Anyhow…in conclusion..this isn’t about his gender…it is about his sex/what’s between his legs…and that’s what it’s ALWAYS been about (see locker room ‘they have the same things as you/have seen it before’ example). Gender & gender expression is invalid when it comes to this stuff (yes, really butchy TSA people with vaginas are allowed to pay down other people with vaginas, but really femmey TSA people with penises aren’t allowed to do the same). And I don’t know why gender SHOULD be valid, no more so than I understand why sex should be valid, so until we figure out that, I find this case somewhat boring?
Why does sex even have to be a validation for ANY job. I hope with ALL of my being that this MAN gets the justice he deserves!