11th Circuit Rules For Transgender Employee In Sex Discrimination Case

Author:Ms Dionysia Johnson-Massie and Gina M. Cook
Profession:Littler Mendelson

The typically conservative Eleventh Circuit Court of Appeals recently found in favor of a transgender employee claiming sex discrimination when her employer fired her after she announced plans to undergo a gender transition. The Georgia General Assembly's Office of Legislative Counsel (OLC) hired Plaintiff Vandiver Elizabeth Glenn in 2005 as an editor.1 At that time, Glenn presented as a man named Glenn Morrison. Approximately one year into her employment with the OLC, Glenn told her supervisor that she was a transsexual and came dressed to the office's Halloween party as a woman. In 2007, Glenn announced she would be transitioning from a male to a female. For Glenn, this meant she would be coming to the office dressed as a woman and would legally adopt a female name. Following this announcement, the head of the OLC, Brumby terminated Glenn's employment.2 The District Court Case Glenn sued Brumby under the Equal Protection Clause of the U.S. Constitution, claiming Brumby discriminated against her on the basis of her sex, including both her gender identity and her failure to conform to the male sex stereotype (i.e., behave and dress in "traditional male" ways) that Brumby expected. Unlike a typical sex discrimination case where a plaintiff claims a violation of Title VII of the Civil Rights Act of 1964, Glenn claimed government action (i.e., her state employer's termination decision) resulted in her discharge. Consequently, Glenn was entitled to sue her employer under the Equal Protection Clause on the basis that the state denied rights she was entitled to under the Fourteenth Amendment.3 Glenn was successful on her claim in the district court and Brumby appealed to the Eleventh Circuit Court of Appeals.4 The Appeal to the Eleventh Circuit Court of Appeals On appeal, the Eleventh Circuit first examined whether discrimination against an individual because of his or her gender nonconformity constitutes sex discrimination under the Equal Protection Clause. The court, citing the U.S. Supreme Court and several other appellate courts, concluded the answer to this question is "yes."5 The court reasoned that: A person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes. The very acts that define transgender people as transgender are those that contradict stereotypes of gender-appropriate appearance and behavior. There is thus a congruence between discriminating against transgender and transsexual individuals and discrimination on the...

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