Federal Judge Finds Dismissal of Transgendered Employee May Violate the Constitution

U.S. District Judge Richard W. Story ruled on June 25 that Georgia legislative officials may have violated the 14^th Amendment’s Equal Protection Clause when they terminated an employee because she was undergoing gender transition. Rejecting a motion to dismiss by five Georgia officials who are charged with responsibility for the dismissal decision, Judge Story found that Vandiver Elizabeth Glenn’s complaint "clearly states a claim for denial of equal protection" on alternative theories of sex discrimination or discrimination on the basis of a medical condition, gender identity disorder. Glenn v. Brumby, 2009 Westalw 1849951 (N.D.Ga.).

Lambda Legal staff attorneys Cole Thaler and Gregory R. Nevins, in Lambda’s Atlanta office, represent Glenn.

The ruling is significant in going beyond Title VII, the federal employment discrimination statute, to find a federal constitutional basis for challenging a state government employer’s discrimination against a transgendered employee.

According to Judge Story’s opinion, Glenn, perceived by the defendants as male, was hired by the Georgia General Assembly’s Office of Legislative Counsel in 2005 to be a Legislative Editor, in which position she was charged with editing proposed legislation and resolutions for grammar, spelling, and format. She did not have any policy-making role.

Glenn was diagnosed with gender identity disorder in 2005, and her doctors determined that gender transition was a "medically necessary treatment" for her. In line with the accepted medical protocol for dealing with gender identity disorder, they recommended that she begin living full-time as a woman prior to undergoing gender reassignment surgery.

In October 2006, Glenn informed her immediate superior at work that she was a transsexual who planned to transition in 2007. The superior, Senior Editor Beth Yinger, responded that she foresaw no problem with this, but when Glenn showed up to work on October 31 garbed and groomed as a woman, Yinger’s boss, Sewell Brumby, sent her home as "inappropriately dressed." In July 2007, Glenn notified Yinger that she intended to proceed with gender transition, and a few months later provided educational materials to Yinger, who passed them along to Brumby, who told Yinger he would consult with legislative leaders about how to handle the situation.

On October 16, 2007, Brumby met with Glenn, confirmed that she planned to go ahead with gender transition, and then discharged her. Brumby’s stated reason for the discharged, as described by Judge Story, was that "in the view of Glenn’s employers, gender transition surgery and presentation as a woman in the workplace would be seen as immoral, could not happen appropriately in Glenn’s workplace, and would make other employees uncomfortable."

Glenn sued based on two equal protection theories: discrimination on the basis of medical condition, and discrimination on the basis of sex. The defendants moved to dismiss, arguing that she was attempting to bring a "class of one" equal protection claim, of a type the Supreme Court recently ruled cannot be asserted in the context of government employment. According to the Supreme Court’s 2008 decision in Engquist v. Oregon Department of Agriculture, a government employee can assert an equal protection claim only by showing that they encountered discrimination because of membership in a particular group.

Judge Story found that Glenn’s allegations were "not consistent with a class-of-one claim," because she did not asset that the defendants acted against her because of "characteristics unique solely to Glenn," but rather because of her gender identity disorder and her sex, characteristics shared by others.

Story found that there is precedent in federal law for finding an equal protection violation based on the way a government employer deals with an employee with a particular medical condition. The most obvious example are cases alleging discrimination on account of HIV status. In such cases, the court applies rationality review, and the government’s action can be challenged by showing that there is no legitimate non-discriminatory justification for the discrimination. As to sex discrimination, federal courts have held that a higher standard applies. Sex discrimination is presumptively unlawful, and the burden is on the government to show that it has an important policy justification for discriminating based on sex. It is now well-established in federal law that discrimination based on the failure of an individual to conform to sexual stereotypes is a form of sex discrimination.

In this case, Story wrote, Glenn had met the burden of showing that she was treated differently based on her GID and her failure to conform to sexual stereotypes, and had placed into question the legitimacy of the employer’s reason for discharging her. "Defendants do not claim that Glenn’s transition would have rendered her unable to do her job nor do they present any government purpose whatsoever for their termination of Plaintiff’s employment," wrote Story. "Indeed, ‘no government interest has been identified... and this issue is properly a question to be decided should the court reach the merits of this claim,’" he wrote, quoting from the prior case about HIV discrimination, Doe v. U.S. Postal Service (1985).

As Story pointed out, "Anticipated reactions of others are not a sufficient basis for discrimination. Furthermore, unequal treatment fails even the most deferential equal protection review when ‘the disadvantage imposed is born of animosity toward the class of persons affected,’" he asserted, quoting the Supreme Court’s landmark gay rights opinion from 1996, Romer v. Evans.

Judge Story’s denial of the motion to dismiss, in language suggesting that the defendants’ case as described so far has no legal merit, is likely to lead to some sort of settlement rather than a trial.