ADVANCES IN VICTIMOLOGY

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Minneapolis Star Tribune, Dec 13, 2000

STATE CREATING EVER NEW CLASSES OF CERTIFIED VICTIMS

Katherine Kersten

It could only happen in Minnesota.

In October 1997, an individual named Julienne Goins began work at West Group (the former West Publishing Co.) in Eagan. Goins is a biological male who started dressing and "identifying" as a woman in 1995. Shortly after Goins began work, several female employees approached West's director of human resources, Lew Freeman, and complained that Goins was using the women's restroom. The women said they were uncomfortable sharing the bathroom with a man, and asked Freeman to address the problem.

After researching transgenderism and attendant legal issues, Freeman met with Goins. While acknowledging Goins' desire to use the women's restroom, Freeman explained the need to find a solution that would balance the rights and interests of all employees. (He was concerned that female workers had grounds for legal action alleging a hostile work environment and invasion of privacy.) Freeman informed Goins that he would not require Goins to use the men's restroom, as the law allowed. Instead, he asked Goins to use a unisex bathroom in the lobby of the building, rather than the women's restroom on the floor where Goins worked.

Goins objected strenuously. He insisted that West was violating his rights, and proposed that women who disliked sharing the bathroom with him be told to use other restroom facilities. He also suggested that he conduct "training" on transgender issues for West employees. After the meeting, Goins continued to use the women's bathroom, defying Freeman's request. He threatened to take "legal, public and media-based action" if the problem were not resolved to his liking.

This situation continued for six weeks. Then, after receiving another complaint, West representatives met with Goins and told him that he must comply with their instructions. Again, Goins refused. Moreover, he claimed that -- as an "act of defiance" -- he had ceased eating and drinking at work, so that he wouldn't have to use the restroom. A short time later, though West offered Goins a promotion and a $4,000 raise, he resigned.

End of another tragi-comic situation of the kind increasingly making human resources directors heads spin. Right? Wrong. Goins sued West under the Minnesota Human Rights Act (MHRA), alleging discrimination on the basis of sexual orientation and a hostile work environment. Apparently, Minnesota is the only state that includes transgendered individuals or transsexuals within the protection of its human rights law.

West brought a summary judgment action, insisting that it had acted legally. The MHRA includes an exception that permits employers to designate bathrooms by sex, and Goins -- who has not had sex change surgery -- is a biological male. The trial court found for West. But recently, the Minnesota Court of Appeals reversed, remanding the matter for trial.

The appellate court ruled that Goins had in fact established a prima facie case of sexual orientation discrimination. According to the court, Goins had shown that he was denied use of the women's restroom because his "female self-image is not traditionally associated" with his biological maleness -- a form of discrimination that the MHRA prohibits. The court also overturned the lower court's ruling compelling Goins to answer questions about his anatomy. West had denied Goins access to the women's restroom on the basis of his biological sex. But the court stated that information regarding Goins' anatomy is irrelevant, and "can have no possible bearing on the determination of the action."

Finally, the court found that West's denial of access to the women's restroom may have created a hostile and abusive work environment for Goins. It cited Goins' claims that he felt "stigmatized" by being barred from the women's bathroom, and his allegations that some West employees (though none he knew or worked with) had "stared or glared" at him.

If West loses at trial, here's what it faces. Under the MHRA, an employer who discriminates is liable for compensatory damages up to three times the actual damages a plaintiff claims. It is also liable for a plaintiff's mental anguish and suffering, as well as punitive damages and attorney's fees. In addition, the employer may have to pay a civil penalty, which goes into the state's coffers. Finally, if a court judges that discrimination has not ceased, state agencies can revoke any licenses the employer holds, or terminate its public contracts.

As I read the documents in this case, I found myself shaking my head. West had obviously bent over backwards in its attempts to accommodate Goins, and to treat him with dignity and respect. Goins, on the other hand, seemed to have demanded tolerance from all around him, but to have shown little himself -- either for the women he worked with, or for West managers struggling to balance competing legal claims. Goins seemed an apt example of a modern phenomenon: the professional victim, a walking bundle of "rights" around whom all the rest of us must walk on eggshells.

Of course, we will always have unreasonable people like Goins with us. The question is this: Why have Minnesota's Legislature and courts granted such individuals legal legitimacy, and handed them an arsenal of weapons in the MHRA?

Surely, it is appropriate for government to address issues of egregious unfairness in our society. But the elevation of Goins' complaints about bathroom access to a violation of "human rights" demonstrates that Minnesota's public institutions have lost their moorings in common sense. Our state seems determined to create ever-new classes of certified victims, all jostling to trump each other with endless streams of grievances. Have our Legislature and courts lost all confidence in average citizens' ability to settle even trivial disputes without the guidance of the state's heavy hand?

Who pays the cost of this silliness? For starters, companies trying to do business here in Minnesota. Today, if they ask a transgendered worker not to use the women's restroom, they may get taken to the cleaners for sexual orientation discrimination. But if they adopt an "open door" policy, female employees may nail them on hostile environment or invasion of privacy claims.

No wonder that, on some days, South Dakota looks pretty good.

-- Katherine Kersten is a director of the Center of the American Experiment in Minneapolis.

-- Lars (lars@indy.net), December 14, 2000

Answers

another ''as it was in the day,s of noah"" signs!!

-- al-d. (dogs@zianet.com), December 14, 2000.