Who Decides Who Is a Man and Who Is Not a Man?

An interesting case is about to hit the courts in which a man was fired for not being born with a penis. El’Jai Devoureau (pronounce LJ) has identified as a man his entire life, unfortunately (it seems), he was born with a female body. So in 2006 he began hormone therapy and had "sex change" surgery.

According to the Social Security Administration, the New Jersey DMV, and his Georgia birth certificate, he is a man. He is a man as far anyone who knows him is concerned.

Last June, Urban Treatment Associates in Camden hired him and then fired him when his boss heard that he was transgender. His job was to supervise the men who are in treatment while they give urine samples to make sure they are not switching clean urine for their own.

So this is where the issue gets interesting - what is in question is his gender:

In its January filing, Urban Treatment said that firing Mr. Devoureau was legitimate, “since the sex of the employee engaged in that particular job position is a bona fide occupational qualification” — implying that Mr. Devoureau was not really a man.

According to the New York Times, New Jersey is one of 12 states that ban discrimination based on transgender status.

Here is the beginning of the NYT article:

A Lawsuit’s Unusual Question: Who Is a Man?

By RICHARD PÉREZ-PEÑA
Published: April 10, 2011

What is a man? For El’Jai Devoureau, this is not a rhetorical question.

El'Jai Devoureau, 39, said he was asked by his supervisor if
he had undergone any operations to change his sex.

Mr. Devoureau, who was born physically female, is a man at the Motor Vehicle Commission, at the Social Security office, at home, at job interviews. But what about at the urinal?

In a case with a truly unusual set of factors, Mr. Devoureau filed a discrimination lawsuit on Friday that could break new ground in New Jersey and across the country, turning on the question of who is or is not a man. An employer fired Mr. Devoureau because it said only a man was allowed to do his job: watching men urinate into plastic cups at a drug treatment center.

Mr. Devoureau, 39, says he has identified himself as a man all his life. In 2006, after he began taking male hormones and had sex-change surgery, he adopted the name El’Jai (pronounced like L. J.). A new birth certificate issued by the State of Georgia identifies him as male, as does his New Jersey driver’s license, and the Social Security Administration made the change in its records.

“As long as I’ve been a person, I’ve lived as a man,” he said in an interview. “At age 5, I did everything a boy did: I climbed trees, I played football, I played with trucks. Most of the people in my life, all they know is I’m male.”

Read the whole article.

As far as I am concerned, El'Jai is a man. Period. He identifies as a man, he lives as a man, and the government recognizes him as a man. It is not the penis that makes the man.

As Helen Boyd points out at the en|Gender blog, this is obvious discrimination:

So here’s how you tell this is discrimination: if a man who had lost his penis in an accident had this job, no one would have fired him for being penis-less. If a man who had hypospadias & had to pee sitting down had this job, likewise. If a man who had a penis that required a catheter for him to pee had this job, he wouldn’t have been fired.

THUS: El’Jai Devoureau was fired for being trans. As a culture, we still haven’t worked out how wholly incorrect this “genitals at birth determine gender for a lifetime” idea is.

Yep - wonder how long it will take to make that leap.

Tags: men, male, transgender, law, discrimination, trans men, transsexual, masculinity, ethics, essentialism, El'Jai Devoureau, New Jersey, Urban Treatment Associates