All,
I need to be clearer than I was above. If this job is covered by the EEO regulations, sex (gender) discrimination would not be allowed and then, based upon the 11th Circuit's ruling, your boss' actions would also sex discrimination. To wit, the Appeals court said:
A person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes. “[T]he very acts that define transgender people as transgender are those that contradict stereotypes of gender appropriate appearance and behavior.” Ilona M. Turner, Sex Stereotyping Per Se: Transgender Employees and Title VII, 95 Cal. L. Rev. 561, 563 (2007); see also Taylor Flinn, Transforming the Debate: Why We Need to Include Transgender Rights in the Struggles for Sex and Sexual Orientation Equality, 101 Colum. L. Rev. 392, 392 (2001) (defining transgender persons as those whose “appearance, behavior, or other personal characteristics differ from traditional gender norms”). There is thus a congruence between discriminating against transgender and transsexual individuals and discrimination on the basis of gender-based behavioral norms.
Accordingly, discrimination against a transgender individual because of her gender non-conformity is sex discrimination, whether it’s described as being on the basis of sex or gender. Indeed, several circuits have so held. For example, in Schwenk v. Hartford, the Ninth Circuit concluded that a male-to-female transgender plaintiff who was singled out for harassment because he presented and defined himself as a woman had stated an actionable claim for sex discrimination under the Gender Motivated Violence Act because “the perpetrator’s actions stem from the fact that he believed that the victim was a man who ‘failed to act like one.’” 204 F.3d 1187, 1198-1203 (9th Cir. 2000).
The court is clear, I think, that discrimination based upon your actions not meeting the gender stereotypes is sex discrimination. If your company is covered by the anti-discrimination laws (and 99.99% are due to the interstate commerce clause), then you are protected. As someone said, you might have to sue them if they take action but letting your boss read the opinion (and point out the above quote) and then pass it on to their lawyers should quickly get him off of your back. The threat of back pay, damages and lawyers fees should be enough. (Of course, the guy who lost the Georgia suit was absolutely stupid! So, you can never tell.)
Depending upon where you work and if you have an HR department, I would quickly have a quiet conversation with HR first. After that, they should talk to your boss. At that point, it would be wise for you, HR and your boss to then meet and have a conversation. If you don't have an HR department, then I would have a non-confrontational conversation with your boss where you point out that the courts have been supporting transgendered people such as yourself. I would emphasize that you are are not trying to make a big deal out of this but you need to be yourself and ask him to support you. While having the court's opinion in your favor, be careful in your attitude and tone. Use it to point out that you are helping your boss and the company avoid a sure loss if they weren't aware of the law and therefore didn't follow it.
Good luck,
Leann