Now 42, Etsitty's legal name is Krystal. Etsitty refers to herself with feminine pronouns, takes female hormones, wears her hair long, uses makeup and is saving her money for a sex-change operation. And her driver license lists her as a woman.

But officials at Utah Transit Authority, where Etsitty worked briefly as a bus driver, considered her a man and fired her for using the women's restroom.

U.S. District Judge David Sam - referring to Etsitty as a "she" but noting she still has male genitalia - on Friday upheld the action, agreeing that she was not the victim of sexual stereotyping.

In dismissing Etsitty's lawsuit against UTA, U.S. District Judge David Sam said laws prohibiting sex discrimination apply to a person's biological sex.

The judge ruled that transsexuals fall outside a 1989 U.S. Supreme Court ruling that banned discrimination against individuals who fail to meet the stereotype of their gender, such as a man who has effeminate mannerisms or a woman who behaves aggressively.

"There is a huge difference between a woman who does not behave as femininely as her employer thinks she should, and a man who is attempting to change his sex and appearance to be a woman," Sam wrote. "Such drastic action cannot be fairly characterized as a mere failure to conform to stereotypes."

His ruling sets the stage for a possible precedent-setting decision by an appeals court on whether the ban against gender stereotyping applies to transsexuals and "transgendered" persons. The term "transgender" includes preoperative transsexuals, post-operative transsexuals and people who dress and live as the gender they identify with but do not have a sex-change operation.

Etsitty's lawyers have promised to challenge Sam's ruling to the 10th U.S. Circuit Court of Appeals in Denver.

"Working is your livelihood," attorney Erika Birch said. "It's important to have protections."

The transit authority applauded Sam's decision.

"UTA is pleased the court ruled in our favor confirming UTA did nothing wrong and we wish Ms. Etsitty well," spokesman Justin Jones said.

Etsitty, a transgendered person who grew up in Salt Lake City with seven brothers, is planning to have an operation to transform herself physically into a woman.

Her suit says she has been diagnosed with Gender Identity Disorder and decided in the late 1990s to begin a transition to female.

At that time, she changed her name and began hormone therapy. When she applied at UTA in the fall of 2001, she put down Krystal Etsitty as her name, and at her job interview had medium-length hair, wore minimal makeup and was dressed in gender-neutral clothes, a pair of khaki pants and a shirt.

Soon after she was hired, Etsitty told her supervisor she was transsexual and began making her appearance more feminine.

"A lot of people think it's deceiving but it's not," Etsitty told The Salt Lake Tribune. "You're just being who you are."

Coming out was scary, but friends, family, her bowling league buddies and the UTA supervisor were supportive, she said. The reaction of other UTA officials surprised her.

"Who goes inside a stall but just yourself?" Etsitty asked.

She also pointed out that bus drivers of both genders wear the same outfit of blue pants and top.

According to the suit, the manager of operations and a human resources official said they were concerned about liability based on possible complaints from women about Etsitty using the same restroom. But Etsitty claims that their real concern was her failure to conform to the stereotype of a man.

Her suit, filed last year, says the UTA officials said they were unable to accommodate her and that she was fired in February 2002.

But Sam says there is no evidence UTA officials required Etsitty to fit a certain stereotype, only that she follow the accepted practice of using the restroom for her biological sex. Although Sam said he does not condone discrimination in any form, Etsitty's intent to use the women's restroom was a legitimate reason to terminate her.

"Concerns about privacy, safety and propriety are the reason that gender-specific restrooms are universally accepted in our society," the judge wrote.

He also noted that Etsitty herself has acknowledged that she was never teased nor treated disrespectfully at UTA and that the agency said she was eligible for rehire after her sex-change surgery.

pmanson@sltrib.com