Atlanta, GA, USA. A sex discrimination decision by the 11th Circuit Court of Appeals, Glenn v. Brumby et. al. (6 December 2011), is an important victory for civil rights advocates, establishing numerous and important points of law.

The decision affirms that sex-discrimination statutes and court decisions apply equally to transsexuals. Discrimination based on nonconformity to gender expectations inherently constitutes sex discrimination.


The case involved the termination of employment by Vandy Beth Glenn. She worked for two years in the General Assembly’s Office of Legislative Counsel as an editor and proofreader of bill language. Glenn prepared to undergo a course of professionally guided treatment that included gender [sex] transition. She informed her supervisor, Beth Yinger, in 2007 of her plans to transition from male to female.

In turn, Beth Yinger informed Sewell Brumby, the General Assembly’s Legislative Counsel and head of the office that employed Vandy Beth Glenn. Brumby fired her after receiving confirmation that Glenn intended to transition. However, the United States District Court for the Northern District of Georgia Atlanta Division, decided otherwise on November 2, 2010. Transition and correction are not crucial to the decision and the prohibition based on sex stereotyping would apply to all. The 11th Circuit Court of Appeals upheld the decision on December, 6, 2011.

The result is a sea change in constitutional interpretation, with implications for people born transsexual, that bodes well for an eventual Supreme Court ruling. [N1]

The Court ruled that the plaintiff, a pre-op male to female transsexual transitioning under a doctor’s care, is a member of an identifiable group covered under the equal protection clause of the U.S. Constitution based upon her sex. [N2] In evaluating a claim based upon the Equal Protection Clause, the U. S. Supreme Court has applied three different levels of scrutiny, depending upon the basis of the classification. Immediate scrutiny must be applied to classifications based upon sex.

The original District Court ruling stated that the Supreme Court has recognized that individuals have a right, protected by the Equal Protection Clause, to be free from discrimination on the basis of sex in public employment. To establish a sex discrimination claim, a plaintiff must prove that he or she suffered purposeful or intentional discrimination on the basis of sex.

Several courts have recognized that a transsexual who alleges that he or she was subject to an adverse employment action for failing to conform to sex stereotypes concerning how an individual of that biological sex should look and behave have sufficient grounds to plead claims of sex stereotyping and gender discrimination.

The District Court concurred with the majority of courts that have addressed this issue, finding that discrimination against a transgendered individual because of their failure to conform to gender stereotypes constitutes discrimination on the basis of sex. While transsexuals are not members of a protected class based on sex, those who do not conform to gender stereotypes are members of a protected class based on sex. [N3]

Transsexuality is not a bar to a sex stereotyping claim. Title VII is violated when an employer discriminates against any employee, transsexual or not, because he or she has failed to act or appear sufficiently masculine or feminine enough for an employer.

The District Court found that

The record demonstrates that Plaintiff’s desire to come to work dressed as a woman did not comport with how Defendant [name excised by TS-Si] believed a biological male should act and that served as a basis for her termination. [N4] The record also indicated that he was concerned about negative reactions from others, including state legislators, if he allowed Plaintiff to do so. Neither is an “exceedingly persuasive justification,” and neither explanation is sufficient to survive intermediate scrutiny review. Therefore, Plaintiff is entitled to summary judgment for her claim of discrimination based on sex. Plaintiff’s Motion for Summary Judgment is GRANTED …

In other words, you can’t discriminate against a man or woman born transsexual during her or his transition -- to do so would be discrimination based on sex which is a violation of U. S. law.

Other key conclusions in the District Court’s Decision:

• The Supreme Court has established that Title VII’s reference to sex encompasses both the biological differences between men and women, and gender discrimination; that is, discrimination based on a failure to conform to stereotypical gender norms.

Plainly put, Title VII protects the Plaintiff before her transition (when she was in her birth condition with male genitalia), during, and after full transition (physical and social). The Supreme Court has found that, legally, sex is both the physical sex and the gendered expression of sex in society.

• Avoiding the anticipated negative reactions of others cannot serve as a sufficient basis for discrimination and does not constitute an important government interest.

An employer cannot terminate a person’s employment based on the employer’s perceived desire to avoid an negative reaction from others.

• U. S. law and court decisions do not require employers to allow individuals with male genitalia to use women’s restrooms.

The law does not require employers to allow a physical male presenting as a woman to use the woman’s bathroom. As discussed elsewhere ad nauseam, a person with a working penis, no matter how they may be dressed, is a man.

• An individual with male genitalia using a women’s restroom does present a “different or special hazard,” and an increased litigation risk. Such lawsuits could include claims for invasion of privacy or sexual harassment.

The law cannot require an employer to undertake an increased risk of a lawsuit. Allowing a person with a working penis to use a woman’s bathroom may subject the employer to lawsuits from women who feel their space has been invaded by a man.

• Terminating an individual who could increase the prospects of such suits is rationally related to the goal of avoiding such suits. It cannot be said that such a termination “can only be viewed as arbitrary and irrational.”

Terminations caused by an employer’s decision to avoid an increased risk of litigation cannot be arbitrarily dismissed. The issues raised by such termination must be thoroughly examined before determining that the termination was unjustified.

• The Constitution cannot control such prejudices but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.

The question before the Appeals Court was whether discriminating against someone on the basis of his or her gender non-conformity constitutes sex-based discrimination under the Equal Protection Clause. The Court held that it does.

So, the Law and the Courts cannot control personal prejudices — but neither can they recognize those prejudices as valid or use those prejudices as a basis to making law. Although personal prejudices will always be with us, the law and the courts must not allow them allow them to color and misshape our legal system.

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