- Eleventh Circuit Affirms Sex Discrimination in Transgender Termination Case
- March 28, 2012 | Author: Aisha S. Sanchez
- Law Firm: Ford & Harrison LLP - Tampa Office
Executive Summary: The Eleventh Circuit recently held that a governmental entity's termination of a transgender employee based on her non-conformity with gender stereotypes constituted sex discrimination in violation of the 14th Amendment's Equal Protection Clause. See Glenn v. Brumby. Although the facts were limited to a government employee, this decision impacts both public and private employers because it clarifies that while the 14th Amendment and Title VII do not specifically recognize transgender or transsexual individuals as members of their own protected class, the law still affords them workplace protections based on sex and gender if their employers subject them to adverse employment action because their appearance and/or behaviors do not align with gender stereotypes.
Vandy Beth Glenn (formerly Glenn Morrison) was born as a biological male, identified as a female, and was diagnosed in 2005 with the medically recognized mental disorder, Gender Identity Disorder ("GID"). Shortly thereafter, Glenn decided to transition from male to female under medical supervision. Part of this transition required Glenn to live as a female prior to undergoing sex-reassignment surgery.
During this process, Glenn worked as an editor in the Georgia General Assembly's Office of Legislative Counsel ("OLC") drafting and revising proposed legislation and resolutions. Glenn continued to present as a male at work, informed her immediate supervisor of the transitioning process, and provided the supervisor with informational material about GID. On Halloween in 2006, however, when other employees dressed in costume, Glenn reported to work dressed and groomed as a woman. Defendant Sewell Brumby, who headed the OLC, sent Glenn home deeming her appearance inappropriate. Brumby then terminated Glenn after confirming Glenn's intent to transition from male to female. Brumby's stated reasons for termination included that: transitioning was inappropriate, disruptive, immoral, ultraliberal, and could make coworkers uncomfortable; certain legislators would find it immoral and lose confidence in the OLC; Glenn's decision to transition demonstrated instability that could compromise Glenn's ability to maintain confidentiality; and Glenn's potential use of women's restrooms could lead to lawsuits.
Glenn subsequently filed a lawsuit under 42 U.S.C. § 1983 alleging constitutional violations based on sex discrimination and discrimination due to the medical condition, GID. Glenn sought reinstatement, injunctive relief, and attorneys' fees and costs but notably did not seek monetary damages. The trial court ruled in favor of Glenn and ordered her full reinstatement, including seniority. The Eleventh Circuit affirmed this decision, holding that the termination of a transgender or transsexual government employee violates the 14th Amendment's prohibition of sex-based discrimination if the basis for termination is due to gender stereotyping and is not substantially related to a significant government interest. Notably, the Eleventh Circuit clarified in dicta that a similar rationale could apply in the private-employment context because Title VII also prohibits discrimination against individuals who fail to conform to socially prescribed gender roles.
Employers' Bottom Line: Public and private employers should take note that while the Constitution and Title VII do not designate transsexual and transgender individuals as members of their own protected class, such individuals might still be protected from discrimination if an employer takes adverse action against them because their appearance and/or behaviors do not fit gender stereotypes.