Constitutional Hill

Christine, give them hell!

Multinational steel retailer, Bohler Uddeholm Africa, is probably going to regret the fact that it ever employed Chris(tine) Ehlers. Hopefully the company will also, at some point, begin to regret that its management is filled with people who act like bigots. Christine Ehlers, who was fired as a sales assistant after her employers discovered that she had begun a series of sex change procedures in 2008, is taking her case to the Labout Court.

Christine is a transgendered person because she was born into the body of a man but realized that she was really a woman and is now altering her body to bring her body in line with her own deeply held view of her sexual status. She claims in court papers that she was fired as a sales representative for the company “on the grounds of her sexual status”. In the papers, she quotes from the findings of a disciplinary inquiry which justified her firing as follows:

It was also determined in discussion with management that the position is distinctly for a male employee and the applicant (Ehlers) [has] already got distinct female features that create a difficult situation…. In the end, the employer has to protect its business and may demand a certain standard of acceptability from its representatives in relation to its customers. I find myself in a difficult situation in that the employee argues that she can still function in the exact same manner as she would have as a man. The employer argues, on the contrary, that it is an international concern that has to protect its image in the market in the metal industry, which is predominantly male-orientated.

Well, this argument is not constitutionally tenable. Section 9(3) of the South African Constitution prohibits unfair discrimination on the grounds of sex, gender and sexual orientation. In the case of National Coalition for Gay and Lesbian Equality v Minister of Justice the Constitutional Court stated that the concept of “sexual orientation” as used in section 9(3) of the 1996 Constitution “must be given a generous interpretation” and thus applies equally to the orientation of persons who are “transsexual” (another, less politically correct, term for transgendered). Christine was thus obviously discriminated against on the basis of her sexual orientation.

But she was also discriminated against on the basis of her sex and/or gender as the job she was doing – as a sales representative – was explicitly reserved by the company for men only. This was not done on the basis that only men could possible do the job (as would have been the case, say, if the job entailed playing for the Springbok Rugby team), but rather on the basis that its customers would not like it if women tried to sell them the company’s products. Her employment as a sales assistant had “compromised the image” of the company in the industry.

Boy what a bigoted industry that must be!

Of course women can also sell stuff – including heavy machinery and other products usually associated with the male world (my car was sold to me by a fantastic woman called Heather) – but the company felt that the customers would not want to buy heavy machinery from a woman, especially (so it seems) not from a woman who used to be a man.

South African Airways used a similar argument after a man who had been accepted for employment as a cabin attendant by SAA, challenged a decision by SAA not to employ him when they discovered that he was HIV positive. In a beautifully written judgment by our present Chief Justice, Sandile Ngcobo, the Constitutional Court rejected this argument by SAA, stating that:

Legitimate commercial requirements are, of course, an important consideration in determining whether to employ an individual. However, we must guard against allowing stereotyping and prejudice to creep in under the guise of commercial interests. The greater interests of society require the recognition of the inherent dignity of every human being, and the elimination of all forms of discrimination. Our Constitution protects the weak, the marginalised, the socially outcast, and the victims of prejudice and stereotyping. It is only when these groups are protected that we can be secure that our own rights are protected….

Prejudice can never justify unfair discrimination. This country has recently emerged from institutionalised prejudice. Our law reports are replete with cases in which prejudice was taken into consideration in denying the rights that we now take for granted. Our constitutional democracy has ushered in a new era – it is an era characterised by respect for human dignity for all human beings. In this era, prejudice and stereotyping have no place. Indeed, if as a nation we are to achieve the goal of equality that we have fashioned in our Constitution we must never tolerate prejudice, either directly or indirectly. SAA, as a state organ that has a constitutional duty to uphold the Constitution, may not avoid its constitutional duty by bowing to prejudice and stereotyping.

If Bohler Uddeholm Africa had been aware of these precedents, it would not have justified the firing of Christine on the basis that its customers wanted to deal with “real men” – which precluded them from employing women as salespersons (whether those women used to be men or not). Given that it has done so, it is almost certain to lose its case in the Labour Court.

Here, being a man was not really an inherent requirement of the job as any woman with the requisite skills could also sell the company’s products to customers. The fact that customers would prefer not to deal with a certain salesperson because that salesperson is a woman (or black, or gay or a Muslim, for that matter) was therefore always legally irrelevant and could not be used to justify the discrimination. As Justice Ngcobo said: prejudice – even the prejudice of one’s customers – cannot ever justify discrimination. “Finish and klaar,” as Jackie Selebi might or might not have said if confronted with this case.

Incidentally, South Africa has one of the most progressive pieces of legislation dealing with transgendered citizens. The Alteration of Sex Description and Sex Status Act of 2003 allows anyone whose “sexual characteristics” have been altered by surgical or other medical means (or anyone who is intersexed) to apply for a change of their sex status with the Department of Home Affairs.

The definition of sexual characteristics in the Act is extremely broad and one needs not have concluded the surgical process of altering one’s body completely from male to female or from female to male to qualify in terms of the Act to have one’s sex status hanged. As long as one has started the process of transferring from a man to a woman or from a woman to a man (and as long as the technical requirements prescribed in the Act are met), the Department of Home Affairs must issue you with a new ID book and passport recording your newly acquired sex.

This Act was necessary to protect the human dignity of transgendered and intersected individuals who previously had to endure terrible trauma when, for example, traveling to another country on a passport that still reflected your previous sexual status. By passing this law our Parliament did a great and progressive thing – not waiting for our Courts to force them to do the right thing.

Good for them. Now, Christine, give those men hell!

  • pierre du preez

    No question — the company in question has ignored our gender equality laws. South Africa seems to be the only country in the world where you can decide the gender of choice and go for it. This seems an avenue that could become very congested as people discover that perhaps they have been deluded genderwise.

    I’d like to suggest that ultimately the only tenable legal position will be to declare reference to gender discriminatory. It should not be obligatory to identify yourself in terms of gender. Obviously there will be practical problems for any society structured around the stereotypical norms currently applied.

    How does one ever correctly establish the true gender/sexuality of parties in any deal? Trust is all you have, really. If a salesperson (who looks female but is, formally registered as male) sells a car to someone who appears to be male (but is actually leaning towards female) could it be argued that there was some sort of misrepresentation and that the deal should be declared fraudulent?

    Unless we all start wearing labels or tags stating our true/perceived sexuality somewhere on the scale of the traditional male/female spectrum, plus finer defining details where necessary, we are not really completely honest about who we are when dealing with others, are we?

    We may end up wearing pink/blue triangles, blue/pink bows (or whatever) to be legally in a position to fulfil contractual obligations.

    Who will lead the charge to rid us of these traditional fetters that limit or compromise so many fellow citizens? The bottom line is that whoever someone is genderwise, in spite of ample legislation, can spell either acceptance or rejection for any individual in the real world.

  • abidam

    Must we get tied up in one persons true gender/sexuality when the most worrying development at present must be “Die Wetsontwerp op die Beskerming van Inligting”

    What is the www link to this legislation?

    Die Burger

    Kaapstad – Die staat sal ’n wetsontwerp wat voorsiening maak vir die beskerming van sensitiewe inligting kan inspan om korrupsie en skandes toe te smeer en ondersoekende joernalistiek te dwarsboom.

    Die Wetsontwerp op die Beskerming van Inligting kan dus meebring dat inligting oor tenders wat met die afgelope Wêreldbeker-sokkertoernooi verbind word, geheim gehou word. Dit sal gebruik kan word om staatskontrakte met senior politici toe te smeer.

    Dié voorbehoude is vervat in geskrewe voorleggings van verskeie belangegroepe wat daarop aandring dat die wetsontwerp onttrek en herskryf word. Ook die vakverbond Cosatu meen dit is ’n “tree terug vir ons demokrasie”.

    Ander organisasies meen die wetsontwerp is “drakonies” en herinner aan “apartheidstyl”- wetgewing.

    Openbare verhore sal waarskynlik vir vuurwerk sorg wanneer ’n parlementêre ad hoc-komitee volgende Woensdag vergader om mondelinge betoë aan te hoor.

    Die wet sal die staat magtig om inligting in nasionale belang of in die belang van staatsveiligheid te klassifiseer en dit vir tot 20 jaar geheim te hou.

    “Dus kan dokumente wat verband hou met staatstenders van die publiek weerhou word,” het mnr. Dave Steward van die F.W. de Klerk-stigting gister gesê.

    Die Suid-Afrikaanse Menseregtekommissie meen die wet kan misbruik word om korrupsie, onreëlmatige tenderprosedures en onwettige optrede te verdoesel.

  • mzo

    Prof I agree with you. This company seems to be in real trouble, I cannot see them succeeding on this one.

    I do have one concern though. Assuming the company’s argument that their industry is “male orientated” (presumably that means customers would prefer to buy only from males) is correct, it seems to me that the success that this “lady” is going to enjoy in this case will only be academic. I say so because, generally, sales people have targets that they have to meet in terms of products they have to sell – now if it is true that the bigots in that industry will not buy from a woman it must follow that she will not be able to meet her targets.

    All that the company will have to do then (assuming that “her” contract is clear on the targets she has to meet) is comply with the LRA and fire her on the basis that she has failed to perform to the agreed standards. Surely that will address their commercial requirements!!

  • Brett Nortje

    LOL! Another affectation of the petit bourgeoisie….

  • Chris

    I couldn’t stop myself thinking about the escort agency down the street. What would they do if the girls go for sex change operations . . .

  • Gwebecimele

    What about msirepresenting herself to the company on appointment?

  • Pierre De Vos

    Gwebecimele, in my view the “misrepresentation” is immaterial. It’s like a person who appears white but was classified as black under apartheid who did not explicitly tell the new employer that she is actually black, then when the employer finds out that she is black (or, like Michael Jackson in reverse she goes darker) she is then fired. As her race (like her sex) is not an inherent criteria for the job, firing her will constitute unfair discrimination.

    Mzo, you are assuming that the company is correct in stating that no-one will buy from her. This assumption, I suspect is based more on the prejudices and deeply held assumptions of the employers than on any empirical evidence. (It reminds me of the SAA case where the SAA made assumptions – which included uninformed assumptions about HIV positive people, who they assumed would automatically not be able to get Yellow fever injections and would automatically be sick and endanger passengers that were not based on medical facts, but on assumptions informed by their ignorance and prejudice.

  • Maggs Naidu –

    Gwebecimele says:
    July 15, 2010 at 14:21 pm

    Hey Gwebe,

    How do you arrive at misrepresentation?

  • Maggs Naidu –

    Chris says:
    July 15, 2010 at 12:13 pm

    “I couldn’t stop myself thinking about the escort agency down the street.”

    Eish, Chris!

  • Kay

    You dont understand sales at all or is it your bias showing its head again, de Vos!
    I can just imagine what this man/lady looks like after the sex-change operation. If you have seen someone having this operation, you will know that, they quite uncomfortable to look at, let alone negotiate a sale agreement. It does not matter who the customer may be -male or female. As far as I am concerned, if s/he applied for the job after the operation, the company should not have taken her/him on. Private company business is mainly about profits and all social programmes support that main objective. A company employs the people it needs to drive the business Not retard it. This person seems “psychologically challenged” person, we can respect that BUT please no provate company is obliged to employ you, if you do not fit into their business plan.
    You may look to government, NGO’s, etc. OR better start your own business so we can all see how successfull you become. At least the risk is yours!

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  • Ricky

    @ Kay,

    I am a bit puzzled by you statement that “they [are]quite uncomfortable to look at, let alone negotiate a sale agreement”. I have actually met a few transgendered persons and, while some of them do look somewhat strange, there are actually also some where you only know because you have been told. But this is also the case for non-transgendered people, some of them are very uncomfortable to look at. Frankly, you do seem like a very bigotted person, prone to unfortunate and primitive generalisations.

    And as to the “psychologically challenged”, well, there is actually research that shows that the brains of men who think they should be women are in some way more similar to women’s brains than to men’s. So, calling being transgendered “psycologically challenged” which I get is a PC way of saing “nuts” seems a bit primitive. May I also remind you that Barack Obama recently appointed Amanda Simpson, a man-to-woman transgendered person, to a position as Senior Advisor to the US Commerce Department. I doubt he would have done that if Amanda was “psycologically challenged”.

  • John Roberts

    Well what if the steel company did some market research which showed that their customers preferred dealing with men ? Is that still discrimination ?
    Do you sue the customers ?

    This whole issue is a bit like being forced to include female content in a men’s magazine because someone thought it discriminatory.

    Personally I think Chris or Christine should take his/her crap elsewhere.

  • Pierre De Vos

    Kay is right. I for example, have always felt white people are uncomfortable to look at and are often “physiologically challenged” (they remind me of the apartheid thing, you see – what crazies would have thought that up!), so we should never employ white people. Serves them right.

    Thank you. (with respect to MDF)

  • Pierre De Vos

    John Roberts, this kind of post sure brings the prejudices out of the woodwork. You and Kay are wrong on the law (as I explained very patently in the post) and also wrong in principle. As the CC said: Prejudice – even the prejudices of the customers – can NEVER justify discrimination. Your example is not relevant. The aim of selling machinery is, well, selling machinery. Having men sell those machinery (unlike targeting content of a men’s magazine on men) is not an inherent part of that selling. If a women has the skills to sell machinery she cannot be discriminated against because some people want men to sell them machinery. It is like an upmarket store selling perfume refusing to employ black staff because they claim customers want to be served by whites. Never going to fly because the reasons for the discrimination is prejudice.

    Tough luck. You lose.

  • mzo

    Prof, you missed my point. I expressly said “assuming the company is correct” (as unpalatable as that might be) in it’s view/perception or whatever you wanna call it, can this “lady” not find herself being fired for non-performance because the Kays’ and John Roberts’ of this world decided not to buy from her?

    I am firmly with you on the principle and the law but I’m concerned about the practical implications of the situation.

  • pierre du preez

    There are, to the best of my knowledge, very few formal appointments where physical appearance of some sort does not play a more or less decisive role. To deny this is folly, hence the effort taken by applicants to look the part.

    The all too human lesson of Cinderella and her stepsisters comes to mind. The prince was looking for the one whose foot fitted the shoe, finish and klaar. Who would have denied him his creature of choice? This is human nature at work and the laws of the land, the CC, et al, will be hard put to negate or eradicate this. To a certain degree life remains unfair, and levelling the playing fields will only go that far.

    The question remains whether we will ever be able to claim that we are living in a truly egalitarian society. How far then should we go in an effort to eradicate (unfair?) predilection and advantage.

    Is the much-vaunted liberal concept of “fit for purpose” discriminatory after all?

  • pierre du preez

    @ Prof. Pierre de V.

    The analogy of the upmarket perfume shop refers.

    I agree that racism would be unacceptable in making an appointment there, but what about sexism? Should a man (traditional, stereotypical definition) apply and be told that he is disqualified from contending, based on his gender, would that be fair in the context of the business advertising the position? He may argue that it is unfair as he knows everything about the product and has ample experience as a sales person, etc.

    If a man has the ability to sell perfume to women he should not be discriminated against. Not so? The principle is clear, but the impracticalities seem prohibitive.

  • Pingback: Christine Ehlers v Bohler Uddeholm Africa - Transphobia on trial()

  • AKA

    What’s wrong with buying perfume from a man? As Prof said prejudice can never justify unfair discriminition. So even if life is unfair and people have their preferences and some racists, sexists, bigots will never change is no reason to ignore unfair treatment because heck life’s unfair. The Constitution is trying to change that. Eventually the sexists, racists, bigots will be in the minority and they will have no choice but to engage commercially with people who are uncomfrotable to look at. Until then the Constitution will have to make them. Deal with it.

  • C# Sharp

    I do hope that Bohler Uddeholm Africa become a benchmark for future companies who simply think they may conduct themselves as they wish to. But I fear having 3 colleagues testify against Christine, actually I mean gang up on Christine will sway a fickle decider. The under dog seldom wins. All hearsay, her being fired is irrefutable proof of their prejudice and the fact that Christine had to lay grievances with these colleagues for abuse and slander previously will surely only fuel their hate and being called into further question.

    I have had the opportunity to meet Christine and to say that visually she would be difficult to look at is rubbish, I can only imagine it is said from a heart filled with fear at not being ale to tolerate differences amongst others. Your soured heart is exposed at the words you post.

    No one simply decides to have a sex change, I know this to be an ordeal for those who do have the courage to live their lives as they feel them must. For they must face the bigots and the haters openly every day as they try to live the lives they’ve always hoped for in peace.

    Indeed give them hell Christine, I sincerely hope you triumph!

  • Maggs Naidu –

    Well done Christine!

    Transgender woman gets job back
    Aug 13, 2010 10:57 AM | By Sapa
    Christine Ehlers, a transgender woman who claims she was unfairly dismissed from her company, is to be reinstated to her job, the Labour Court in Johannesburg ruled.

  • Vera

    I cannot believe that there are actually still people who would not only agree with the behaviour of a company who dismisses someone who has undergone a sex change on the ground that selling machinery is a “man’s job” but who also admit that they themselves would be “uncomfortable” purchasing machinery from such individuals. Is no consideration given to whether or not the heavy machinery in question is of a standard of your preference or whether the person selling the machinery is doing a good job at it. Christine did an excellent job before and I cannot see how a change of sex could change that. Our Constitution makes it clear – no one is to be discriminated on the grounds of their gender.
    As was held by the Labour Court when this matter was heard “Unfair discrimination in the workplace should not be tolerated at all costs.
    It is ugly. It is an evil that need (sic) to be routed out in the workplace”
    Futhermore, as was held in the similar case of Atkins v Datacentrix (Pty)Ltd “Whatever one’s’ views might be on gender reassignment those should remain your own views”.
    If you have nothing nice to say, rather not say anything at all.

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