Transgender rights and wrongs

Conflict between individual freedom and religious tradition is a test for employment law.

The recent dismissal of a transgendered employee by her religious employers has caused some controversy in the United States.

This raises the question of where the balance should lie between religious freedom and protection from discrimination.

The United States’ Civil Rights Act prohibits discrimination on the basis of sex, and the Equal Employment Opportunities Commission (EEOC) brought a claim for the worker in question, Stephens.

The EEOC claimed that the employer, a funeral home, had wrongfully dismissed her on the basis of Stephens being transgendered.

Stephens had been employed by the funeral home for some time as a man. Eventually he decided to tell the employer that he had decided to transition to a woman.

She had always identified internally as being a woman and would be returning from an upcoming vacation dressing in accordance with their women’s dress code.

The employer called Stephens to a meeting shortly before the vacation and sacked her.

The reason given was that the employer didn’t find it acceptable for Stephens to follow the women’s dress code.

The district court agreed that requiring Stephens to follow a dress code specific to gender was discriminatory. However, it then turned to the Religious Freedom Restoration Act (RFRA).

The RFRA provides that there needs to be a compelling reason for the state to restrict a person’s religious beliefs. In doing so the state needs to cause the least possible restriction to that person’s religious freedom.

As it happened the funeral home was owned by a devout Baptist family. The court held that forcing the funeral home to allow Stephens to wear women’s clothing would restrict the employer’s religious beliefs and accordingly Stephens’ case failed.

Interestingly the judge commented that Stephens or the EEOC could have proposed an alternative, namely gender neutral clothes being worn, and that would have found favour with him.

So what do readers make of this decision?

New Zealand has also been wrestling with protecting transgendered people in the workplace.

An Auckland hairdresser, Ahren Hemmingson, notified her employer, Matthew Swan, that she would be transitioning from male to female.

The employer raised all sorts of concerns and Hemmingson, who changed her name to Dakota, eventually felt she had no choice but to resign.

Hemmingson went to the Employment Relations Authority, which accepted that Hemmingson had effectively been forced out and upheld the claim.

Our human rights legislation doesn’t expressly cover discrimination against transgender people.

It is open to interpretation that the prohibited ground for discrimination of ‘sex’ could include discrimination against a transgendered person.

Influential decisions in the United Kingdom and Europe support this view.

Often these cases, as happened in the US, raise objections from people on religious grounds.

Unquestionably our Christian heritage is reflected in the common law world and affects people in employment. One only has to analyse the events that create most of our public holidays to see that.

The New Zealand human rights legislation allows a few exceptions to the prohibition on religious discrimination by employers.

These exemptions include integrated private schools, roles relating to national security, domestic employment in a private household, or the sex or religion of an employee where the person is employed for the purposes of an organised religion (a church).

We are evolving as a society and have a plurality of religions, including people of non-christian faiths.

It is not clear how the US case would be decided in New Zealand today.

Readers no doubt would have a view on this. Do we have the right balance between religious freedom and discrimination in this country?

Peter Cullen is a partner at Cullen – the Employment Law Firm. He can be contacted at peter@cullenlaw.co.nz