A unanimous three-judge panel of the U.S. Court of Appeals for the 11th Circuit, based in Atlanta, has affirmed a ruling by U.S. District Judge Richard W. Story that the Georgia General Assembly's Office of Legislative Counsel violated the Equal Protection rights of Vandiver Elizabeth Glenn, a transgender woman, when she was discharged for transitioning from male to female while employed by the OLC. Glenn v. Brumby, No. 10-14833, 10-15015 (Dec. 6, 2011).
Both Sewell R. Brumby, the head of OLC who made the discharge decision, and Glenn had appealed from Judge Story's ruling. Brumby appealed the finding that he had engaged in unconstitutional sex discrimination, while Glenn appealed from Judge Story's dismissal of the claim that Brumby had discriminated based on her medical condition of gender identity disorder. Writing for the 11th Circuit panel, Judge Rosemary Barkett premised the court's decision on Judge Story's sex discrimination ruling, writing that "In light of this decision, which provides Glenn with all the relief that she seeks, there is no need to address Glenn's cross-appeal."
Born male, Glenn Morrison "felt that she is a woman" since puberty, was diagnosed with Gender Identity Disorder in 2005, and began the process of transition "under the supervision of health care providers." Following the accepted medical guidelines, this meant living as a woman outside of the workplace for some period of time before making the decision to undertake hormone treatment and surgical alteration. While this process was going on, and presenting herself as Glenn Morrison, a man, she applied for a position as an editor with the OLC and was hired in October 2005.
During 2006, Glenn told her direct supervisor, Beth Yinger, that she was a transsexual and "was in the process of becoming a woman." At an office Halloween party that October, when employees were permitted to come to work wearing costumes, Glenn came to the office dressed as a woman. As Judge Barkett describes the evidence, "When Brumby saw her, he told her that her appearance was not appropriate and asked her to leave the office. Brumby deemed her appearance inappropriate 'because he was a man dressed as a woman and made up as a woman.' 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.'"
Brumby met with Yinger to discuss the incident, and Yinger then first informed him that Glenn was a transsexual who "intended to undergo a gender transition." By the following fall of 2007, Glenn was ready to take the next step, and told Yinger that she would begin coming to work as a woman and was changing her legal name. Yinger informed Brumby, who directed that Glenn be discharged. His explanation for this action 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, Glenn filed a federal lawsuit, claiming a violation of her 14th Amendment right to Equal Protection of the law. Glenn pursued two theories: first, that she suffered discrimination because of her sex, including her female gender identity and her failure to conform to sex stereotypes, and, second, that she suffered discrimination because of her medical condition, Gender Identity Disorder, because receiving medical treatment is "in integral component of living with such a condition, and blocking that treatment is a form of discrimination based on the underlying medical condition."
Greg Nevins, Supervising Senior Staff Attorney in Lambda Legal's Southern Regional Office in Atlanta is handling the case, with assistance from Dru Levasseur, Transgender Rights Attorney. Nevins argued the appeal on behalf of Glenn before the 11th Circuit just a few weeks ago, and the appeals court's response was remarkably swift.
District Judge Story had rejected the medical condition discrimination claim, but accepted the sex discrimination claim, finding that there was a growing body of federal precedent recognizing that taking adverse action against a person for failing to conform to gender stereotypes is a form of sex discrimination, and thus could give rise to liability under the 14th Amendment. Furthermore, because the Supreme Court has ruled that governmental discrimination based on sex should be subjected to "intermediate scrutiny" by the courts, Brumby would need an "exceedingly persuasive justification" for his action to be considered constitutional.
"The question here," wrote Judge Barkett for the court of appeals, "is whether discriminating against someone on the basis of his or her gender non-conformity constitutes sex-based discrimination under the Equal Protection Clause." She began her analysis with the Supreme Court's 1989 ruling in Price Waterhouse v. Hopkins, in which the Court embraced the argument that denying a partnership promotion to a female employee, whose presentation and conduct were considered inadequately feminine ("too macho") by some of the decision-making partners, violated the ban on sex discrimination in Title VII of the Civil Rights Act of 1964.
Prior to the Price Waterhouse ruling, every federal court to consider the issue had ruled that discrimination against transgender individuals did not violate Title VII's sex discrimination ban. After Price Waterhouse, federal courts have generally ruled the other way, including Title VII rulings by the 6th Circuit Court of Appeals and rulings under other federal sex discrimination laws by the 1st and 9th Circuits.
"A person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes," wrote Judge Barkett. "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-nonconformity is sex discrimination, whether it's described as being on the basis of sex or gender."
"All persons," she continued, "whether transgender or not, are protected from discrimination on the basis of gender stereotype." She gave as examples 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."
Applying this ruling to the facts of the case, Judge Barkett found that the record provided direct evidence that Brumby's decision to discharge Glenn was due to her "gender non-conformity." That is, Brumby perceived Glenn as a man who insisted on grooming and dressing inappropriately as a woman. Since intentional discrimination on that basis is subject to heightened scrutiny in a 14th Amendment case, the question was "whether Brumby succeeded in showing an 'exceedingly persuasive justification'" involving a "'sufficiently important governmental interest' for his discriminatory conduct."
Brumby's only justification specifically advanced on appeal was his stated concern that "other women might object to Glenn's restroom use," but the court found that Brumby had presented "insufficient evidence to show that he was actually motivated by concern over litigation regarding Glenn's restroom use." Barkett found that Judge Story "recognized that this single reference, based on speculation, was overwhelmingly contracted by specific evidence of Brumby's intent, and we agree." Indeed, Brumby's contention lacked all credibility because "the record indicates that the OLC, where Glenn worked, had only single-occupancy restrooms," so there was no occasion for other female employees to be present together in a restroom with Glenn.
Actually, the main reason Brumby made no effort to provide a credible justification was that he based his defense, as many government defendants do in gender identity or sexual orientation cases, on the argument that "plaintiff was not a member of a protected class" and thus there was no burden on the defendant to justify his actions. In such a case, the burden is on the plaintiff to prove a negative: that there is no rational justification for the defendant's action. But the court's determination that this is a sex-discrimination case flips the burden to the defendant. "The fact that such a hypothetical justification may have been sufficient to withstand rational-basis scrutiny," wrote Barkett, "is wholly irrelevant to the heightened scrutiny analysis that is required here." As Brumby had advanced no other reason that could qualify as an important governmental purpose to fire Glenn, the court determined to affirm Judge Story's decision.
Observers of the oral argument in this case had concluded that the inclusion on the panel of Rosemary Barkett, a former Florida Supreme Court justice who was appointed by Bill Clinton, and Phyllis A. Kravitch, a Senior Circuit Judge who was appointed by Jimmy Carter, made it likely that a majority of the panel would rule for Glenn. What was less expected was that William H. Pryor, Jr., the third member of the panel, a conservative who was appointed by George W. Bush, would agree. The unanimous opinion makes it less likely that this ruling would be vulnerable to reversal by an enlarged (en banc) panel of the court, were Brumby to petition for such reconsideration.
The addition of this decisively-written 11th Circuit opinion to the existing opinions by the 1st, 6th and 9th Circuits suggests a growing consensus in the federal appellate courts that anti-transgender discrimination is sex discrimination and that government entities cannot continue the traditional discriminatory treatment to which they have subjected transgender individuals. Speculation about co-worker discomfort or restroom issues will not suffice.