Hunton Employment & Labor Perspectives

On December 6, 2011, just five days after it heard oral arguments in the case, the Eleventh Circuit Court of Appeals affirmed a victory for a transgender woman, Vandiver Elizabeth Glenn, who sued her former employer, the Georgia state legislature, for violating the Equal Protection Clause of the United States Constitution.  A three-judge panel unanimously affirmed a summary judgment for the plaintiff, who was fired from the General Office of Legislative Council for undergoing a gender transition.

Born a biological male, the plaintiff lost her job as an editor in the state’s Office of Legislative Counsel after she told her supervisor, Legislative Counsel Sewell R. Brumby, that she would be undergoing a gender transition and coming to work as a woman with a new name.  Glenn sued her former supervisors, Brumby, and other legislative officials but Brumby was the only remaining defendant. 

The question before the 11th Circuit was “whether discriminating against someone on the basis of his or her gender nonconformity constitutes sex-based discrimination under the equal protection clause? ”

In a 19-page order, the panel found:  “We hold that it does.”  The Court relied on the 1989 decision of Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), where the Supreme Court of the United States held that discrimination on the basis of gender stereotype is sex-based discrimination.  In Price Waterhouse, the court considered allegations that a senior manager at Price Waterhouse was denied partnership in the firm because she was considered “macho,” “overcompensated for being a woman” and should dress more femininely.  Id. at 235.  The Supreme Court agreed that such comments were indicative of gender discrimination and held that Title VII barred not just discrimination because of biological sex, but also gender stereotyping—failing to act and appear according to expectations defined by gender.  Id.

Applying this ruling to the facts of the case, the Eleventh Circuit found that “discrimination against a transgender individual because of her gender non-conformity is sex discrimination [under the Equal Protection Clause], whether it’s described as being on the basis of sex or gender.”

The opinion offers broad protection on gender rights:  

All persons, whether transgender or not, are protected from discrimination on the basis of gender stereotype…. An individual cannot be punished because of his or her perceived gender non-conformity

The only justification for Glenn’s firing offered by Brumbly on appeal:  his purported concern that other women might object to Glenn’s restroom use.  However, the Court found Brumbly’s evidence insufficient to show that he was actually motivated by concern of litigation regarding Glenn’s restroom use. 

The Eleventh Circuit joins the First, Sixth and Ninth Circuits in finding that anti-transgender discrimination is sex discrimination. Employers should be vigilant to avoid any activity in the workplace that arguably disadvantages transgendered employees.