Transgender workers and gender as a qualification

Maine's Human Rights Commission is set to hear a complaint from a transgender man was denied a seasonal camp counselor job he had previously held when his employer found out he was born female. The camp decided that Jeremiah Nazarkewycz couldn't work in the boys' cabins, as he had previously done, because he was born female. But neither could he work in the girls' cabins, because he lived and identified as a man.

Curiously, Mr. Nazarkewycz says that he disclosed being transgender when he was first hired, but his employer apparently didn't know what that meant and just thought he was gay, or, well, something. (Wowza.) The boss freaked out, though, when he read in the local paper about Mr. Nazarkewycz's coming out to a group of high school students.

Although the camp admits that it engaged in intentional discrimination on a ground forbidden by Maine law, it invokes the Bona Fide Occupational Qualification (BFOQ) defense. A BFOQ is the unusual situation where a characteristic it is normally illegal to consider is shown to be actually necessary for a particular job. There is next to no case law considering the BFOQ defense in the transgender context. This employer is getting pretty slippery with it:

"[Our camps] do not allow men to live with and supervise girls as they dress, and undress, toilet and shower, the most intimate activities of daily living," [the camp director] said. "By the same token we do not allow women to live with and supervise boys in the same circumstances."

The camp seems to be contending both that Mr. Nazarkewycz is a woman, and at the same time that he's a man, and that he can't work for them for both reasons.

Or, to give them a little more credit, their position is that in the context of supervising girls, gender identity and expression are what counts, but in the context of supervising boys, genetic or genital sex is what counts. Presumably, the employer would flip the argument around in the case of a trans woman seeking the job. It's essentially arguing that the confluence of gender identity and expression and genetic and/or genital sex is the BFOQ, so that only non-transgender (or for the Classically inclined, cisgender) people can do the job.

The report generated for the Commission by its investigator takes the view that

the statute for BFOQ must be interpreted very narrowly with the onus on the employer to prove by a "preponderance of evidence" that the nature of the business operation requires the discriminatory practice and that there is a factual basis to believe that all or nearly all of the excluded persons would be unable to do the job.

This, I think, the employer simply cannot do. In an ordinary sex discrimination case, it might be relatively easy to prove that it is necessary to have female counselors in the girls' cabins and male counselors in the boys'. That is because you wouldn't need to break down the category of "sex" into analytically separate components, which is necessary in a case like this one, at least if the BFOQ is construed narrowly, as described above. (Which is, I believe, the correct approach.) A trans employee or applicant will have some, but not all of the characteristics normally associated with the sex that is required for the job. The employer's job, then, is to prove that it is specifically the sex characteristics Mr. Nazarkewycz lacks that are necessary to do the work.

Given the camp's defense here, they need to make that case with regard to gender identity and expression for one position and with regard to genetic and/or genital sex for another. The former case should be easy enough to make, but the latter case strikes me as flat-out impossible, at least for a job like this. As a practical matter, it is only the girls' counselor position, which Mr. Nazarkewycz as a trans man presumably does not want, that the camp can likely prove he isn't qualified for.