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"I know that there were certain problems while they were there. It's my understanding that those problems led to their termination," says Twilo counsel Brian Gardner, who can't be more specific due to the pending litigation. (As of press time, Twilo's counsel had not formally responded to the summons.) Bindra refused comment, but Twilo general manager Ted Oehmkewho's only been with the club for three monthssays that the dismissal "was performance-related. It had nothing to do at all with the fact that they're transgender." Gardner adds, "This club does not discriminate. It's our opinion that there are no charges that will be sustainable, especially discrimination charges, because [Twilo] has such a diverse clientele and it made its reputation having a diverse clientele, and by diverse I mean gay, straight, whatever gender identity you have."
When Gardner blends sexual orientation and gender identity, it's illustrative of just how confusing things can get under current state law. While New York is still far more progressive than most states, it is still an "employ at will" state, meaning an employer reserves the right to hire or fire for any reason. Certain classes of people are guaranteed the right to challenge the "at will" clause under the New York City Human Rights Ordinance. Transgender people are not explicitly listed in the statute, but judges have inferred protection for them by combining the extant gender and sexual-orientation categories to come up with gender identity.
This scenario has held up twice: once in the New York Supreme Court in 1995 with Maffei v. Koleatone Industry, and again in the Southern District New York Court in 1996 with Rentos v. OCE Office Systems. But lack of explicit protection still means that transgender people come up against a built-in motion to dismiss before they ever see a courtroom in a discrimination case.
"It is a striking irony that this case is going to court at the same time the transgendered rights bill is coming up for public hearing in the City Council," says Pauline Park, cofounder of the New York Association for Gender Rights Advocacy (NYAGRA). The transgender rights bill, or Initiative Number 751, would amend the local law to include transgender discrimination protection. (NYAGRA plans a demonstration protesting Twilo's "transgender-phobic discriminatory employment practices," in Park's words, in front of the club on Saturday night.)
751 also includes the revolutionary subdivision 23, which defines gender as "actual or perceived sex," including "gender identity, self-image, appearance, behavior or expression whether or not that gender identity is different from that traditionally associated with the legal sex assigned to the person at birth." The inclusion of gender identity makes the traditional distinction of pre- or post-op decidedly old-school.
"The remedial purpose of the human rights statute is to eliminate all forms of discrimination as it exists today in this great cosmopolitan city," says Thomas Shanahan, counsel for Lepore and Munoz. "But if it doesn't include everybody, it doesn't have any meaning. Judges have extended the definition, but Initiative 751 will codify that definition."
Lepore sums up her Twilo job description: "To dress up, look freaky and flashy and over the top, and to dance." Oehmke adds, "They would wear fairly skimpy costumes and it was just to add to the color and flavor of the evening. Sometimes they added a little bit too much color and flavor." And their measure for success? "The raise," Munoz says. She and Lepore maintain that they both received a pay hike just three weeks before they were fired. Shanahan argues, "The raise they were given three weeks prior to termination corroborates the satisfactory job performance."
But former Twilo promoter Marc Berkley asks, "If you're changing the kind of party you're doing, or if you're now hiring a new promoter and they're doing something that's totally heterosexual and they now want regular female dancers, why aren't they allowed to do that? The crowd has changed, he's got a much different crowd on Fridays. It's a much younger, much ravier crowd." As for clubs keeping up with the frenetic pace of their own trend-driven culture, Oehmke says, "We're always cycling people through here. We change the lighting, we change the decor, and we change dancers. . . . It's a very small business, really; it's pretty informal."
Lepore is no stranger to the fickle winds of clubland. "We've worked in every club in the city, and a lot of times they don't want us, they decide they want something straighter. It's fine, but they still treat us as women, or as human beings." Munoz adds, "We worked at Webster Hall for a long time and one day they said, 'We don't want a gay party up there anymore because it's not good for our image.' We were fine with that. They don't say, 'We don't want you up here because you're transsexual.' "