Reluctantly disabled

Gaynell Johnson was 5 when she showed the first signs of being transsexual. After a kindergarten class one day, she told her mother she wanted to marry her teacher. “You can’t marry her, you’re a girl,” Gaynell’s mother informed her, thinking that the young girl was confusing affection for attraction.

“I’m not a girl. I want to be a boy,” Gaynell responded. “And when I grow up, I want to marry a woman.”

Nearly 30 years later—after a failed marriage and living for 12 years as a lesbian—Johnson has adopted a male persona and goes by the name Gary, the person Gaynell has always wanted to be. Johnson says that last year he finally came to terms with his transgenderism and began living and dressing as a man outside of work.

To transition from being female to male, he says, he began dressing more masculine for work at Families for Children, a Sacramento nonprofit organization that works with foster families. He had interviewed for his job as Gaynell but says he was trying to fully transition in all aspects of his life.

But during that transition, Johnson suffered what he considers to be discrimination, and last week he became the first Californian to file a lawsuit against his employer by using a new state law that protects transsexuals from discrimination in housing and employment.

Johnson’s attorneys will also file a similar lawsuit for a Santa Cruz woman who believes she was refused a job at a health club because she is a male-to-female transsexual.

Though the new state law, which went into effect January 1, offers recourse for transsexuals, there is a hitch. To qualify for legal protection, Johnson had to file his complaint as someone with a disability. He is said to have “gender dysphoria,” a psychiatric disorder defined as “persistent cross-gender identification.”

The association of transgenderism with a psychiatric diagnosis is a sticking point for some members of the transgender community who believe that their condition is biological and sometimes medical. They point out that similar psychological and disability labels were used for homosexuals until the 1970s, when medical and scientific advancements began to lift the stigma around homosexuality. Johnson, too, believes that linking transgenderism with a psychiatric disability can be damaging.

“When I first filed with the Department of Fair Employment, I didn’t even mark it as a disability claim because I didn’t want to be seen as having a disability,” he says. “I find it offensive. At the same time, with the wording of the new law, if I’m not marked as disabled, then I’m not able to sue under the law.”

The state law that gives Johnson and other transsexuals the ability to sue was intended to expand the definition of disabilities protected by discrimination laws. For decades, transgenderism has been considered a disability because the American Psychiatric Association recognizes it as a mental disorder.

But until the new state law, transgender people were not protected because their condition came under an exempted class of sexual behavioral disorders like pedophilia and voyeurism. The new law separates transgender people from sexual disorders and allows them to be protected by disability discrimination laws.

“Transgenderism is not a sexual behavior disorder like exhibitionism,” explains state Senator Sheila Kuehl, who championed the bill last year. “Some courts have found transgenderism to be a physical and medical condition.”

Shannon Minter of San Francisco’s National Center of Lesbian Rights says that transgenderism and disabilities can be reconciled.

“People have a great misconception about the meaning of the term ‘disability’ in nondiscrimination law,” Minter says. “It does not mean that you are incapacitated or unable to work—quite the opposite. It prohibits the irrational discrimination against people with medical conditions.”

Though cities such as San Francisco and Berkeley have ordinances that prohibit overall transgender discrimination, they don’t carry much weight in the courts, since state laws trump local ones. But a bill currently winding through the Capitol would bolster these legal protections for transgender people by prohibiting harassment based not only on sex but on gender identity.

The bill would make it easier to combat discrimination and would not require transgender people to use disability as the basis for the complaint. It would also protect “gender variants,” or people harassed because they do not conform to traditional gender roles. Similar legislation failed in the state Senate’s Judicial Committee last year.

Though the passage of the disability law is a mixed victory for some members of the transgender community, it is a triumph for its legal advocates.

“There were no explicit protections for transgender people in California before,” says Sheryl Harris, who runs a lesbian, gay, bisexual and transgender program at San Francisco’s Employment Law Center. “[The law] can be problematic because some in the transgender community do not want transsexuality to be considered a pathology. But it is something we can use to get protection, because we have few other options.”

Gary Johnson wears black tailored pants, a blue dress shirt, and a blue and gray striped tie. A gold tie clip rests precisely perpendicular to the fabric’s edge, and his short, dirty-blond hair has been neatly combed and parted to the side. Johnson has just come from a job interview, and he is thrilled that the management seems to have no problem with his gender identity.

“I went in dressed as Gary, and I was upfront about everything,” he says, smiling broadly. “They told me they would never treat me as anything but who I am. That’s so validating.”

He says it was an entirely different situation at Families for Children.

“I get a little minor harassment outside of work—at the gas station people will drive by and yell ‘dyke’—but I can shrug that off,” Johnson says. “The majority of it came from work, to a point where there was no way to tolerate it.”

In his eight-page complaint filed with the Department of Fair Employment and Housing, Johnson alleges that he has been “harassed, fired, laid off, and denied family or medical leave based on my … sexual orientation and gender.”

Richard Gray, the attorney for Families for Children, said the organization won’t comment on the details of Johnson’s allegations, but said the organization has done nothing wrong and will vigorously defend itself in court.

“Families for Children denies any kind of discrimination against Gary Johnson,” Gray said. “Just the opposite, Families for Children bent over backward to accommodate his needs.”

Johnson’s complaint says the harassment began two weeks after he was hired, when the executive director began asking Johnson’s co-workers about Johnson’s sexuality. In the complaint Johnson also alleges that as a result of his sexuality, he was locked out of his computer, reassigned to a new position, barred from a staff meeting and had his health insurance canceled.

Johnson says his co-workers made frequent derogatory comments about his sexuality; also, Johnson’s supervisor allegedly told him that management was keeping surveillance records on him. Johnson complained of discrimination in late January, and a few days later he was fired.

The next day, when Johnson objected to being fired, his job was reinstated. In mid-February, Johnson says his doctor told him not to go back to work because the “hostile work environment had injured my health.”

While the transgenderism may be a new spoke to the umbrella of workplace protections, the basic concept of protecting workers from discrimination is well-established.

“I don’t think this is groundbreaking in terms of those conceptions of workplace discrimination law, other than that it is covering a previously uncovered group,” says Stanford University law professor Mark Kelman, who specializes in employment discrimination cases. “Even if it is problematic symbolically and politically to classify this under disability, this is not a new way of thinking about what an employer’s obligations are to its employees.”

Discrimination cases like Johnson’s could award millions of dollars; Johnson is already thinking of the house he wants to buy and the sex-change operations for himself and a friend that he would pay for. But, he says, the lawsuit is not about money.

“The big thing is to be able to set a precedent,” he says. “If we win, it can make a tremendous difference for the transgender community. It’s about people being treated equally, about being seen as human beings instead of some sort of monster. … [This law] does label us, and I’m not real happy about that, but we’ve all taken the attitude that it’s better than nothing.”