Working for Justice

“America’s Highest-Paid Female CEO Used to be a Man:” Martine Rothblatt and Gender Nonconformity in the Workplace

The current New York Magazine cover story – “The Trans-Everything CEO” – profiles Martine Rothblatt, the highest paid female CEO in America. It paints a fascinating picture worthy of its “futurist, pharma tycoon, satellite entrepreneur, philosopher” subject.

There are a million interesting things about the 59-year-old Rothblatt: the three companies she founded (Geostar, Sirius Satellite Radio, and United Therapeutics); her amazingly romantic and unique 35-year relationship with her wife Bina (Bina identifies as “Martine-sexual,” Rothblatt commissioned an artificially intelligent robot meant to resemble Bina); her philosophy of transhumanism; the organization she started, Tarasem (“devoted to achieving immortality and ‘cyber-consciousness’ through cryogenics and AI”); and far more than I can list here.

And, in the mid-1990s, Rothblatt transitioned from male to female. While the article doesn’t shy away from discussing gender (and the magazine certainly capitalizes off of it with this cover copy: “The Highest Paid Female CEO in America Used to Be a Man”), it is not overly focused on it either. True to the writer’s depiction of Rothblatt in other areas of life, she also seems to take a “trans-everything” approach to her own gender identity. In 1995, shortly after her transition surgery, Rothblatt wrote a book titled The Apartheid of Sex: A Manifesto on the Freedom of Gender. In it, she suggested that gender and sexual identities should be expressed on a spectrum:

There are five billion people in the world and five billion unique sexual identities . . . Genitals are as irrelevant to one’s role in society as skin tone. Hence, the legal division of people into males and females is a wrong as the legal division of people into black and white races.

Rothblatt appears to fully embrace the spectrum approach. Her son posits that, in Miller’s words, Rothblatt’s transition “may have sprung as much from her lifelong determination to cross all borders as from a compulsion bred to the bone.” Her four children call her “Dad” at home and “Martine” when talking to strangers. Miller notes:

She is a person for whom gender matters enough to have undergone radical surgery, but not enough to care whether she’s called he or she by people.

Rothblatt seems to have surrounded herself with similarly enlightened friends and family. When she told Bina that she wanted to transition from male to female, Bina told her, “I love you for your soul, not your skin.” (In reflecting to that time, Rothblatt says, “I was so lucky. So, so lucky.”). Noting that it was courageous for Rothblatt to not fully embrace either gender at the time of her surgery, her friend Kate Bornstein says, “She isn’t a woman, and neither am I.” Her friend, Patricia Kluge, said that gender never came up while Rothblatt was raising money for United Therapeutics: “Bright people don’t talk about these things. The body is a shell. It’s the mind and the heart that count.”

All in all, Rothblatt’s gender identity – and the community she has around her that supports her fluid notion of gender – seems dreamy and enlightened.

But it does not sound common. I doubt Marissa Mayer or Meg Whitman felt they could be gender neutral on their ascent to the list of the 200 highest-paid CEOs in America. The cover of the magazine teases an underlying question that is never addressed – if the highest paid CEO in America “used to be a man,” what does that mean for the cisgender women on the list, their career trajectory, or does it mean anything at all? Rothblatt avoids the comparison, and “is not interested in being a role model for women,” saying:

I can’t claim that what I have achieved is equivalent to what a woman has achieved. For the first half of my life, I was male.

Unfortunately, most individuals who — like Rothblatt – don’t conform to traditional gender stereotypes may not share the benefits of a supportive community and/or the power of being their own highly-successful boss. These employees may be punished, or pushed out, at work for failing to meet co-workers’ expectations – whether it is a woman failing to wear enough make-up, a gay man who is harassed for being “effeminate,” or a job candidate who is not hired after disclosing her plan for sex reassignment surgery.

However, there can be legal recourse for harassment due to gender nonconformity.  Though there is no explicit protection for LGBT people under Title VII, litigants have used the Supreme Court’s Price Waterhouse v. Hopkins decision to pursue “sex stereotyping” claims. In Hopkins, the Court held that gender nonconformity can be unlawful and actionable “because of sex” discrimination under Title VII. This cause of action has had recent success in allowing LGBT litigants to maintain discrimination claims in Court and before the EEOC. Employees of the federal government and federal contractors are now protected against sexual orientation and gender identity discrimination pursuant to President Obama’s July 21, 2014, executive order.  Finally, though it has faced recent challenges, Democrats in the U.S. House of Representatives continue to advance the Employment Non-Discrimination Act (ENDA), which would provide LGBT workplace protections against discrimination (and passed the Senate with bi-partisan support in November 2013).

Hopefully, with hard work and ever expanding community acceptance of non-conforming gender identities, one’s sexual orientation and gender identity can become only one of many myriad interests and accomplishments that define us.

 

Sanford Heisler Sharp, LLP

Sanford Heisler Sharp, LLP is a nationwide litigation law firm with offices in New York, Washington, DC, San Francisco, San Diego, Nashville, and Baltimore. We represent individuals against powerful interests. We act as a private attorney general in support of the private and public good. Learn More

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