Posted by: jasgreen | December 24, 2009

Male or Female: Employment discrimination

By now, I’m sure that everyone within the TG/LGB community has heard about the case of  Zikerria Bellamy at McDonalds, Inc. For those that don’t know, she applied for a position online at McDonalds and after it was discovered that she was in fact a male, the manager of the restaurant left his opinion on her voice mail. To say the least, he insulted her and gave his opinion on the type of people McDonalds doesn’t want to hire. McDonalds has since fired the manager in case and made a public announcement that the manager was out of line and did not have the authority to act as he did. The subject is now suing McDonalds for discrimination which I feel she should.

However, what bothers me about this case is how it is being handled. Zikerria is being presented as a transexual. Some have even confused her as being a post-op transexual which in fact she is not. Youtube has responders that consistently refer to her as being a post-op transexual and some have voiced that post-op transsexuals should understand that discrimination besets them.

The reality of the situation is that once someone has vaginoplasty, they are legally, in most states, female. A post-op transsexual has every right to marry legally, check female on the application legally, receive spousal benefits, and just as any other hetrosexual couple have the same rights. On the other hand, a transgendered person cannot do this legally.

This is a case of a transgendered person who applied for a job as a female when in fact she is a male. Now, she could have lied on the application and said she is female which she did. But legally/biologically, she is a male no matter how much she feels she is female. McDonalds has every right to fire someone that lies on their application for employment including lying about a previous conviction. What McDonalds doesn’t have the right to do is deny employment to someone based upon their gender identification.  Stay with me on this one.

Had the subject been hired by McDonalds and it was later found out that the subject was in fact a male, McDonalds is within their right to dismiss the subject for falsification on their application. However, if the subject at hand had checked that she was in fact male but presented as female, carried a letter to attest to the fact that she is a pre-op transsexual, McDonalds would have no grounds to dismiss her had she been hired.

I’m not arguing what was said to her over the voice mail, that’s another topic which I don’t want to discuss. I’m simply pointing out that transgendered persons need to understand that falsification on a job application is grounds for denial of employment up to and including termination. If you lie on your job application and a company terminates your employment, you are the one at fault, not the company that hired you based upon the information that you provided to them.

I hope that McDonalds has good legal counsel on this one simply because this is not a case about a transgendered being denied employment.  This is a case about a manager who discovered that someone had lied on their application and over stepped his job responsibilities to spread hate and his disapproval. Yes, the manager was wrong for leaving his opinion on the girls voice machine. Yes, the subject should be able to file a lawsuit for harassment and deformation of character. The subject should be compensated for the hardship that this ex-manager has placed on her mental health.

To my transgendered friends out there, I understand this is a hard pill to swallow. I understand that there needs to be legal support for the transgendered community. However, it also needs to be a clear distinction between transgenderism and transsexualism. The two do not mean the same and I have written upon this subject to death. The legal system acknowledges this distinction and just because a post-op transsexual can legally check female on a job application does not mean that it should apply to someone that is legally/biologically a male that lives their life as a woman. If you are one of the many out there applying for a job and presenting false information on a job application, do not be shocked when these companies do a background check and discover that you lied on the job application. Stats say that 90% of the companies that are hiring will do a background check. They will find out. It is of no benefit to you to lie on a job application because even if you think you made it through, at some point most companies will check your background even beyond offering you the job.

My advice to the transgendered person, particularly the one’s that have no intention of ever having a sex change, get a letter from a qualified mental health therapist that states you are legally male but live your life as a woman and for all do cause, you should be viewed and treated as a woman. Carry this letter in your wallet with you at all times.  On the job application you fill out, make sure that you are honest in checking which sex you are. When and if you are questioned about your sex, it should be made known that you are in transition, a non-op transgendered person or a pre-op transsexual. Believe it or not, it is still illegal for a male to enter a female bathroom in most states and if a female finds out that you are in fact a male, she can call the police or security on you despite the fact that you present as a woman. This is why having that letter is of necessity.  Having that letter will also protect you in a case if and when you do get called to the HR department because someone suspected that you are not the sex you say you are, they legally cannot fire you because of it unless you lied on the job application. Its for you own protection that I offer this advice. Hate if you will, call  me a bigot, ask me what right do I have to question your gender, but, no matter how you look at it, the law is the law and we need to start establishing the right that transgendered people exist within our community and they have the rights too.

Have a happy holiday.

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