The scope of the New Jersey Law Against Discrimination's protections against sexual bias in the workplace is being tested by two suits by men who claim to have been the victims of disparate treatment because they chose to become women. One suit, filed March 6 in Bergen County, alleges that Robert Trepanowski was fired the day after he advised his Allendale employer that he was taking female hormones and planned to have a sex-change operation. The same issue has arisen, in a different context, in a suit filed in November by Janet Aiello, a transsexual Hoboken police lieutenant claiming biased treatment based upon her sex change. Aiello, a 24-year veteran of the department, is suing under the LAD and, taking a buckshot approach, also raises invasion of privacy and other state and federal claims. The LAD defines such orientations in terms of male or female heterosexuality, homosexuality or bisexuality, but it makes no mention of transsexuality.
Federal law offers no prospect for relief.
U.S. courts that have considered the issue have unanimously held that the protections of Title VII of the Civil Rights Act do not apply to transsexuals. Like Trepanowski, Aiello is in the preoperative or transitional stage of a sex change. During that time, hormonal treatments begin to alter physical characteristics, and the individual begins to adapt to living as the opposite gender. And when she began her transitional stage the next year, she claims, she was the recipient of disparate, harassing and retaliatory treatment that was motivated by a perception that her transsexualism was a disability. If that is the motivating factor for the action taken, then it's discriminatory.