Glenn v. Brumby, No. 10-14833 (11th Cir. Dec. 5, 2011)

| Dec 6, 2011 | Daily Developments in EEO Law |

The Eleventh Circuit declares that transsexualism is a protected classification under the federal Equal Protection Clause, and holds that “a government agent violates the Equal Protection Clause’s prohibition of sex-based discrimination when he or she fires a transgender or transsexual employee because of his or her gender non-conformity.” The result is affirmance of summary judgment for the employee.

Glenn v. Brumby, No. 10-14833 (11th Cir. Dec. 5, 2011): The facts are straightforward. The plaintiff, formerly employed by the Georgia Assembly’s Office of Legal Counsel, announced the intent “to transition from male to female under the supervision of health care providers.” The first time that plaintiff arrived at work dressed as a woman, for a Halloween work event in 2006, touched off a sensation with Brumby, the plaintiff’s boss:

“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 ‘[b]ecause 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.'”

When the plaintiff announced a year later that she intended to begin gender transition and to report to work as a woman, she was fired. Her direct supervisor (Yinger) stated 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.”

Glenn filed a Section 1983 claim that she was terminated in violation of her Equal Protection rights, citing both her status as a transsexual and her related medical condition (Gender Identity Disorder or “GID”). The district court granted summary judgment to defendant Brumby on the GID claim, but to plaintiff Glenn on the gender claim.

The Eleventh Circuit affirms summary judgment to the employee on the gender discrimination claim, and does not address the disability-discrimination claim. The panel analyzes the Fourteenth Amendment sex-discrimination jurisprudence of the Supreme Court, and also considers Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), a Title VII case. It holds that discrimination on account of sex or gender stereotyping runs afoul of the Constitution:

“A person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes. . . . There is thus a congruence between discriminating against transgender and transsexual individuals and discrimination on the basis of gender-based behavioral norms.”

Thus, “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.” The panel observes:

“All persons, whether transgender or not, are protected from discrimination on the basis of gender stereotype. For example, courts have held that plaintiffs cannot be discriminated against for wearing jewelry that was considered too effeminate, carrying a serving tray too gracefully, or taking too active a role in child-rearing. An individual cannot be punished because of his or her perceived gender-nonconformity. Because these protections are afforded to everyone, they cannot be denied to a transgender individual. The nature of the discrimination is the same; it may differ in degree but not in kind, and discrimination on this basis a form of sex-based discrimination that is subject to heightened scrutiny under the Equal Protection Clause. Ever since the Supreme Court began to apply heightened scrutiny to sex-based classifications, its consistent purpose has been to eliminate discrimination on the basis of gender stereotypes.”

The panel cites authority from the Sixth and Ninth Circuits, and several federal district courts, that supported claims by employees who identified as transsexuals.

On the record presented, the panel finds ample direct evidence that the employee was terminated because of gender stereotyping, and that the employer lacked any persuasive justification/governmental interest in firing Glenn.

Though the record contained one justification advanced by the state (avowed concern about the use of public washrooms), this was offset by the fact that the OLC had single-occupancy washrooms, anyway. “Brumby has advanced no There reason that could qualify as a governmental purpose, much less an ‘important’ governmental purpose, and even less than that, a ‘sufficiently important governmental purpose’ that was achieved by firing Glenn because of her gender non-conformity.”

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