The Eleventh Circuit Court of Appeals recently held that a transgendered government employee was entitled to protection under the Equal Protection Clause of the U.S. Constitution and could not be fired because of his or her gender non-conformity unless the government employer could demonstrate a “sufficiently important governmental purpose.” Glenn v. Brumby, Nos. 10-14833 and 10-15015, Eleventh Circuit Court of Appeals (December 6, 2011).
Factual Background
Vandiver Elizabeth Glenn, formerly known as Glenn Morrison, was born a biological male. She was diagnosed with “gender identity disorder” in 2005 and at that time, began taking steps to transition from male to female. She was hired by the Georgia General Assembly in October 2005, when she still was known as Glenn Morrison. In 2006, Glenn told her direct supervisor that she was a transsexual and was in the process of becoming a woman.
On Halloween, when employees were allowed to come to work wearing costumes, Glenn came to work dressed as a woman. Glenn was told that her appearance was inappropriate and she was asked to leave the office “[b]ecause he was a man dressed as a woman and made up as a woman.” According to Glenn, she also was told 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.”
In the fall of 2007, Glenn informed her direct supervisor that she was ready to proceed with gender transition and would begin coming to work as a woman. Glenn also told her supervisor that she would be changing her legal name. Shortly thereafter, Glenn’s employment was terminated allegedly because “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.”
Legal Analysis
Glenn later sued claiming that the decision to fire her because of her transition from male to female constituted sex discrimination. The trial judge granted summary judgment to Glenn on her sex discrimination claim and her employer appealed this decision to the Eleventh Circuit.
The Eleventh Circuit held that “[a] person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes” and, therefore, is entitled to protection from sexual discrimination. The court also held that all people, whether transgender or not, are protected from discrimination on the basis of “gender stereotype.” Therefore, the government agent “violate[d] the Equal Protection Clause’s prohibition of sex-based discrimination when [he] fire[d] a transgender or transsexual employee because of his or her gender non-conformity.”
What This Means for Public and Private Employers
The Eleventh Circuit’s ruling on the Equal Protection Clause applies only to governmental employees. However, in reaching its determination that the Equal Protection Clause applied in this case, the Eleventh Circuit first analyzed whether discrimination against transgendered employees is prohibited by Title VII of the Civil Rights Act, which does apply to private employers. Thus, both private and public employers must be diligent to avoid any activity in the workplace that arguably disadvantages transgendered employees, including joking, teasing, etc, as well as discipline, discharge and other adverse employment actions.
