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Back to Section One | Back to Arts & Entertainment
posted Friday, April 15, 2011 - Volume 39 Issue 15
New Jersey lawsuit seeks to define: is a male always a man?
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New Jersey lawsuit seeks to define: is a male always a man?

by Mike Andrew - SGN Staff Writer

El'Jai Devoureau's driver's license says he is a man. So does his birth certificate. So do his Social Security records.

His former employer does not accept this evidence, however, and that has set the stage for a lawsuit over who is legally a man.

Although he was identified as a female at birth, Devoureau says he has identified himself as a man all his life.

'As long as I've been a person, I've lived as a man,' he said in a recent interview with the New York Times. '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 that I'm male.'

In 2006, after he began taking male hormones and had sex-reassignment surgery, he adopted the name El'Jai (pronounced LJ).

He obtained a new birth certificate from the State of Georgia identifying him as male, and had the gender marker changed from female to male on his New Jersey driver's license. The Social Security Administration also made the change in its records.

Last June, Urban Treatment Associates in Camden, New Jersey, hired Devoureau as a part-time urine monitor. His job was to make sure that clients recovering from addiction did not substitute someone else's urine for their own during regular drug testing.

On his second day on the job, his supervisor approached him and said she had heard he was Transgender.

'I said I was male, and she asked if I had any surgeries,' Devoureau says. 'I said that was private and I didn't have to answer, and I was fired.'

After Devoureau made a complaint to the New Jersey Division on Civil Rights, the treatment center filed a response saying that Mr. Devoureau's dismissal 'was not motivated by, nor related in any way to, any discriminatory intention.'

In January, Devoureau filed suit in a Camden Superior Court.

His suit is not the first job discrimination case brought by a Transgender person, but Michael D. Silverman, executive director of the Transgender Legal Defense and Education Fund, said it was the first employment case in the country to take on the question of a Transgender person's sex.

In US law - federal as well as state laws - 'immutable characteristics' like age, race, sex, and national origin are 'impermissible bases' for discrimination in employment.

Twenty-one states and the District of Columbia also protect sexual orientation. An additional four protect sexual orientation only for public employees.

Thirteen states - including New Jersey, where Devoureau lives and works - add gender identity to the list.

Washington state is peculiar in that it protects for sexual orientation, but defines that category in a way that includes gender identity and expression.

State laws also differ as to when gender markers on legal documents can be changed to reflect gender reassignment. Some require surgery, while others set less strict standards.

Federal law does not prohibit discrimination on the basis of gender identity and expression, but under the Obama administration, several federal departments have adopted rules that establish more equal treatment for Transgender individuals.

Even in states where Trans-inclusive anti-discrimination laws are on the books, exceptions can be made for 'bona fide occupational qualification.' In other words, employers may select for certain characteristics if the characteristics are important to the work being performed.

In Devoureau's case, he was expected to observe male clients urinating into specimen cups, and therefore it could be lawful for his employer to hire only males for that job.

In its January filing, Urban Treatment said that firing Devoureau was legitimate, 'since the sex of the employee engaged in that particular job position is a bona fide occupational qualification.'

Their argument implies that Devoureau is not really a man, in spite of what his legal documents demonstrate. His employers are therefore claiming that their judgment as to his gender is more valid than the states of Georgia and New Jersey, or the federal Social Security Administration.

Devoureau's complaint specifically states that 'He has permanently transitioned to male and his government-issued identification documents reflect the fact that he is male. Defendants hired him as a man.'

Devoureau has so far refused to discuss precisely what changes have been made to his body, or to say what name he was originally given.

'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.'

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