Transsexuals and the law: Misrepresentation?

Factual Questions
1

I’ll say up front that this quesionwas insoired by an episode of The Janice Dickinson Modeling Agency so mock me if you must.

Anyway, one of the models Janice hired was Claudia Chiarrez, who’s a MTF transsexual (don’t know if she’s pre-op, post-op or what, not sure if it’s relevant). Janice was a big supporter but her business partners got Claudia dropped, in part because they claimed that sending her out to model as a woman was “misrepresentation” and could open them up to litigation. Is there anything to that? Does a business that presents a person of one sex as a person of the other, or some permutation pre- or post-op, really potentially face legal problems for doing so? The agency is based in California but could potentially have clients anywhere in the country or for that matter the world.

There’s the case of Tula, a British post-op TS model, but nothing in the article talks about possible legal problems her agents might have faced for sending her on jobs without disclosing her transsexuality.

2

The only way I can see it would be misrepresentation is if Claudia or the agency were to sign a contact that states she is female, unless she holds the legal status of female.

3

Sounds like unadulterated bigoted bullshit to me. Do they get a signed waiver from their models that their breasts aren’t enlarged or their noses reduced? That they are hetereosexual, so men looking at the ads can safely fantasize about them?

4

Many states, like the good ol’ state of Ohio where I reside will not acknowledge an MTF as female. The woman can get her name changed, have all the surgeries available if she desires, (not that this is a requirement to be considered a woman) and live as a woman but her birth certificate will remain as it was and so will her driver’s license. Does this mean that when she identifies herself as a woman that she is misrepresenting herself? I suppose this could go to Great Debates but I do not think she is at all. She is under no obligation to tell anyone she is MTF.
Now, whether or not the modeling agency could be sued for “misrepresentation” is another thing. Unfortunately, they probably could be. But this seems to me to be more a sign of some very fucked up laws, and backwards thinking than a sign of true commerical misrepresentation. I’m with Eve, it’s bigoted bullshit.

5

I totally agree that it’s bigoted bullshit, my note had nothing to do with my personal beliefs about gender idenity. The show was claiming that it could be a legal problem and I was simply trying to find what might fit that.

Yes, they could be sued for it. Anyone can sue anyone else for anything at anytime, doesn’t mean they’ll win though. Like I said, they only way I can see that it could even possibly be an issue is if they signed a contact stating that Claudia was female.

6

I didn’t think that it pertained to your personal beliefs at all. My little display of vitriol was aimed at the show. I do wonder, myself, if a legal contract stating Claudia was female would be a target for litigation. I suppose it depends on the state in which it was drawn up. In my opinion, it shouldn’t matter. For all intents and purposes she is female regardless of the genitals she was born with. As much as it pisses me off, the powers that be tend to disagree apparently.

But I do think that Janice Dickinson is displaying bigotry rather than an actual concern for litigation.

7

In Canada, we do not currently have any explicitly legislated protection for discrimination (by private actors or by the government) on the basis of gender identity or expression, except in the NWT and maybe Nunavut. (NDP MP Bill Siksay is working on it on the federal level, though.)

However, from what I understand of the precedents (IANAL), the woman would have at least a pretty good shot at a sex discrimination suit under the relevant provincial, or the federal, human rights act. After all, discrimination is only permitted in regard to a bona fide job requirement (i.e. it’s okay not to hire a blind person as a busdriver); presumably her amazing figure is the job requirement, not her chromosomal and/or legal sex.

8

Okay I gotta ask. Nunavut? Are there a lot of TG Inuit?

9

Janice fought to keep her. It was the other people at the agency who brought up the misrepresentation idea. The only argument I can come up with is if Claudia modeled for some product as a woman and it was revealed that she wasn’t born physically female and as a result the product became unpopular then the business could claim that the “misrepresentation” cost them money and JDMA would be liable for the losses. That makes little sense to me but it’s all I could come up with. Any legal beagles know anything about the topic, either directly relating to TS/TG issues or in general?

10

I think it’s more a matter of the territories’ human rights codes being more recent.

11

How do we update the human rights codes in America? In Ohio? Now in 2006 is finally the time when barriers to transgender rights are beginning to crumble in many places. Great Britain just passed trans-inclusive legislation. New Zealand and Italy have transsexual members in their national legislatures. Imagine electing a trans congresswoman in your district… or riding…

12

Ah, yes. Job security. :slight_smile:

Otto, I am currently without television, and so haven’t seen the episode to which you refer. I wonder, though, if the issue isn’t so much “we’ll get sued for misrepresentation” as it is “we’ll be accused of misrepresentation and it will damage our reputation.”

Under California law, misrepresentation is representation that an important fact is true (“Claudia is a woman”); the representation is false (Claudia is not a woman, under some definition – more on that in a moment); the representation is made with knowledge that it is false, or made without regard to whether it is false or true (“we’ll just say what we have to say to get the job”); an intention that the plaintiff rely on the representation; actual reliance; causation; damages.

I think the weak points here are falsity and damages. Is Claudia a woman? There are arguments (as have been made in this thread) that she is, regardless of the status of her transition. If she has had her gender recognized by the state (and California at least is pretty advanced in this regard, as it permits gender to be changed in some respects without surgery or hormone therapy), then the representation isn’t false. Indeed, under California law, I’d be pretty okay making an argument that if Claudia represents herself as female (and has changed her name to a female name, gotten her drivers license changed to F, etc.), she is female for all intents and purposes. I also fail to see damages, really (how could you be damaged?).

Bottom line, I agree that the investors were not worried about legal repercussions, in the sense that they feared being sued should they hire Claudia. I suspect that their fear was more generalized, that someone may hire Claudia and later discover that she is a transsexual and for whatever reason make a stink. (And that, of course, is always the problem with discrimination.)

matt_mcl, in the US there is also the concept of a bona fide occupational qualification that permits discrimination (but only if the discrimination is due to a BFOQ). I remember we discussed it in the context of Jonathan Pryce playing the Engineer in Miss Saigon. He is, pretty clearly, not Asian. Is being Asian a BFOQ for playing the Engineer, such that the producers of the play could have only auditioned Asians for the role? Could you similarly audition only black men for the role of Othello? Or only white women for the role of Desdemona? (Because this was law school, I don’t know what the answer is.)

But sex stereotyping is not permitted under US federal law; you cannot discriminate against someone because they do not act the way you expect someone of their gender to act. This is increasingly a tool for the transgendered, because the argument is that, for example, as a male to female transgendered person, you are being discriminated against because you do not exhibit stereotypically male characteristics, but instead act female.

So maybe the investors should have been more worried about Claudia suing them, than someone else suing them for hiring Claudia.

13

Campion has, as usual, provided a thoughful and comprehensive analysis. And again as usual, I agree with most of what she says.

But here:

I’m not sure I agree.

Putting aside all of the excellent legal points about discrimination laws, truth of the representation, etc, and focusing only on the damages element: why can’t there be damages?

I’ll start by saying that even though I’m about to suggest something about the beliefs of one product’s target audience, that doesn’t mean that I agree with those beliefs, or don’t realize that those beliefs are hurtful, or am asseting that laws shouldn’t prohibit acting on such beliefs.

I’m only addressing the question of damages.

The Acme Brewery is putting together a new ad campaign, for its new He-Man Blue Collar Beer. The ads are designed to appeal to guys in the way that essentially every beer ad in history does. They show a bunch of manly, blue collar guys doing active, guy things, then drinking the beer, while hot women look on. Essentially, the line being sold is “drink our beer, and these women who you find attractive will sleep with you, and other guys will envy you.”

Acme hires an agency to hire actors and otherwise put together the ad. The agency hires Linda, who used to be male. The ads get made, and run nationwide during the Superbowl. Big bucks are spent.

The story breaks. Drinkers of the beer in blue collar (or college) bars get ribbed by their friends. Beer sales plummet.

Leaving the possibility of overriding antidiscrimination laws, why wouldn’t that be damages?

14

Random, I’m noodling this over. My issues are twofold: whether the proximate cause of the purported damages was Linda, the model; and whether my concerns re proximate cause are actually concerns about problems of proof. In other words, I’m not sure (without research) whether the fact that Linda is transgendered is the legal cause of the damages due to the failure of the marketing campaign, or whether I simply think that the plaintiff will be unable to prove that the damages were caused by Linda as opposed to a host of other factors (market competition, etc.).

15

(Imagines riding a trans congresswoman in my district . . . Sidesaddle, of course, a lady never rides astride!)

16

Because Lexor/Linda didn’t sign a contract stating “I am not now nor have I ever been stuck with bio female parts”? How about an agency that hires a butch guy to advertise something, then it becomes knowb he’s gay? Caveat emptor.

17

This the second time this weekend someone’s responded to one of my posts with 'caveat emptor".

As I said in the other thread, as an absolute concept, that’s rarely the law these days. Just because something isn’t expressly prohibited in a contract doesn’t mean that a contracting party is free to do it. There are implied duties in most contracts.

Besides, Campion and I are not debating whether there has been a misrepresentation or, more generally, a breach of contract. We’re debating the question of damages only. I think I made that fairly clear in my post.

18

Well in most states it would be perfectly legal to fire the butch guy since it isn’t illegal to discrimate based sexual orientation in most states. Ditto for gender identity.

19

Regarding what matt_mcl said earlier… while it’s true that Ontario doesn’t have legislation specifically saying that you can’t discriminate on the basis of gender identity, the Ontario Human Rights Commission considers “sex” to include “gender identity” in this situation. They have a lovely little article regarding discrimination and gender identity here.