Jottings By An Employer's Lawyer

Sunday, February 11, 2007

Intersection of Two Hot Buttons - Religion & the Transgender Employee


Last year I noted there had been a spate of cases focusing on the intersection between religion and Title VII. See, Ministerial Exemption Covers Organist, But Not Chaplain? and The Words of the Gospel Set to Messiah or to 3 Blind Mice? Now add a transgendered employee, represented by the attorney who has had success making claims on behalf of transgendered employees (Randi Barnabee) in the Circuit (6th) which has been the most receptive to such claims, to what was already a volatile mix and you are headed for a barn burner of a case. Or at least the potential for one is brewing at Spring Arbor University which has dismissed Professor Julie Marie Nemecek, formerly John Nemecek, allegedly for not modeling behavior consistent with Christian beliefs.

Thanks to Professor Jillian Todd Weiss, who specializes in transgender research (and is transgendered herself) for the heads up. Complete details can be found at University firing transgender prof, at her blog, Transgender Workplace Diversity. Her view is that the University is unlikely to succeed with its bfoq argument.

A slightly different opinion comes from Robert Tuttle, a professor of law and religion at George Washington University in Washington, quoted in an article on the case at Inside HigherEd, thinks the University may have a stronger claim on removing her as a dean than as a faculty member. Two other points he makes are unlikely to be subject to much challenge:
  • “It’s a really messy area of law,” and
  • "It’ll be interesting to watch.”

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