Sunday, April 17, 2011

Not man enough for this job?

The male brain (google images)
Last week, El’Jai Devoureau in New Jersey filed a discrimination lawsuit against his former employer. El’Jai claims he was unfairly fired from his job as a urine monitor when his boss found out that he is transgender. 

Only a man is allowed to do the job, which is to monitor men taking urine samples at a drug treatment centre, in order to ensure that people recovering from addiction do not substitute someone else’s urine for their own during regular drug testing. 

But that is not the issue – it is perfectly legitimate for certain jobs to favour one group over another – for instance preferring women nurses in maternity wards. The issue here is whether or not El’Jai is in fact a man. He was born physically a woman, but has identified himself as a man all his life. In 2006 he had sex-change surgery, and now has a new birth certificate and driver’s licence that confirm his gender as male. El’Jai argues that he is a man, and his firing constitutes discrimination.

The court will have to decide whether or not El’Jai is a man. This is a line-drawing exercise, as are so many cases that I’ve come across in law school. What does it mean to be a man or woman, and where do you draw the line between the two? In order to help with tricky issues like these, the court will often give a list of relevant factors to consider and whichever side the balance leans towards, that’s your answer.

The court should do the same thing in El’Jai’s case. Here is a 7-factor test the court can use to determine whether or not El’Jai is a man:

1.       Does he leave the toilet seat up?
2.       Does his idea of a balanced meal consist of beer, wings and pizza?
3.       Is he unable to ask for directions?
4.       Does he hate shopping?
5.       Does he not understand women?
6.       Does he shout at the TV when the game is on?
7.       Is his mind occupied with a certain few things (see diagram above)?

If El’Jai answers affirmatively to all the above factors, he meets the criteria and congratulations – he’s a man!

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