A unanimous federal appeals panel has affirmed a district court ruling that the Georgia General Assembly's Office of Legislative Counsel (OLC) violated the equal protection rights of Vandiver Elizabeth Glenn, a transgender woman, when she was discharged for transitioning from male to female while employed there.
The December 6 three-judge decision from the US Court of Appeals for the 11th Circuit, based in Atlanta, upheld a ruling by District Judge Richard W. Story.
Both Sewell R. Brumby, the head of OLC who made the firing decision, and Glenn appealed Story's ruling. Brumby challenged the finding that he engaged in unconstitutional sex discrimination, while Glenn appealed Story's dismissal of the claim that Brumby had discriminated based on her medical condition of gender identity disorder [GID] as well.
Judge Rosemary Barkett, writing for the appeals panel, relied on Story's sex discrimination holding, finding that it “provides Glenn with all the relief that she seeks, [so] there is no need to address Glenn's cross-appeal" regarding the GID diagnosis.
Named Glenn Morrison at birth, the plaintiff "felt that she is a woman" since puberty, was diagnosed GID in 2005, and was in the process of medically-supervised transition –– but not yet at the stage of presenting as a woman in the workplace –– at the time she assumed her job as an editor with the OLC in October of that year.
The following year, Glenn told her supervisor, Beth Yinger, that she was a transsexual and “in the process of becoming a woman." Glenn attended the office Halloween party, where employees wore costumes, dressed as a woman, but Brumby “told her that her appearance was not appropriate and asked her to leave the office,” according to Barkett’s summary of the evidence. “Brumby stated that 'it's unsettling to think of someone dressed in women's clothing with male sexual organs inside that clothing,' and that a male in women's clothing is 'unnatural.'"
After that episode, Yinger informed Brumby that Glenn "intended to undergo a gender transition," but it was not for another year before Glenn said she was ready to come to work as a woman and change her legal name. It was then that Brumby ordered her firing.
His explanation was that "Glenn's intended gender transition was inappropriate, that it would be disruptive, that some people would view it as a moral issue, and that it would make Glenn's coworkers uncomfortable."
Represented by Lambda Legal’s Greg Nevins and Dru Levasseur, Glenn filed a federal lawsuit, claiming a violation of her 14th Amendment right to equal protection of the law, pursuing two theories –– that she suffered sex discrimination because of her female gender identity and failure to conform to sex stereotypes, and that she suffered discrimination because of her medical condition, GID. The treatment she was receiving, she argued, which involved her transitioning, is "an integral component of living with such a condition, and blocking that treatment is a form of discrimination based on the underlying medical condition."
Story, while rejecting the GID-related claim, accepted Glenn’s sex discrimination argument, finding there was a growing body of federal precedent, going back to 1989, recognizing that adverse action against a person for failing to conform to gender stereotypes is sex discrimination. Brumby would need an "exceedingly persuasive justification" for his action to be considered constitutional.
In 1989, the Supreme Court held that Price Waterhouse discriminated in denying partnership to a female employee considered “too macho” by some of the decision-makers. It was only after that ruling that federal courts began to accord transgender plaintiffs protection based on the 1964 ban on sex discrimination.
"A person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes," Barkett wrote. "There is thus a congruence between discriminating against transgender and transsexual individuals and discrimination on the basis of gender-based behavioral norms.”
She gave as examples of discrimination cases involving a male parks employee who suffered discrimination for wearing an earring, a male waiter harassed for "carrying a serving tray too gracefully," and a heterosexual father who suffered discrimination for "taking too active a role in child-rearing." "An individual cannot be punished because of his or her perceived gender-nonconformity," Judge Barkett declared. "Because these protections are afforded to everyone, they cannot be denied to a transgender individual."
Barkett found that the record provided direct evidence that Brumby's decision to discharge Glenn was due to her "gender non-conformity." Brumby perceived Glenn as a man who insisted on grooming and dressing inappropriately as a woman. The “exceedingly persuasive justification” required of him had to involve a "'sufficiently important governmental interest' for his discriminatory conduct,” Barkett wrote.
The only justification Brumby offered on appeal was his stated concern that "other women might object to Glenn's restroom use," but the court found he had presented "insufficient evidence to show that he was actually motivated by concern over litigation regarding Glenn's restroom use." In fact, the judge wrote, "the record indicates that the OLC, where Glenn worked, had only single-occupancy restrooms."
Since Brumby advanced no other reason that could qualify as an important governmental purpose to fire Glenn, the court affirmed Story's decision.
Though supporters of Glenn were pleased that judges appointed by former Presidents Jimmy Carter and Bill Clinton were on the appeals panel, the surprise here was that William H. Pryor, Jr., its third member, a conservative appointed by George W. Bush, agreed. The unanimous opinion makes it less likely that this ruling would be vulnerable to reversal by an enlarged, or “en banc,” panel of the appeals court, were Brumby to press for such reconsideration.
Adding this decisively-written 11th Circuit opinion to existing precedents in the First, Sixth, and Ninth Circuits suggests a growing consensus in the federal appellate courts that anti-transgender discrimination is sex discrimination and that government entities cannot continue past patterns of discrimination against this community. Speculation about co-worker discomfort or restroom issues will not suffice.