Wednesday
Dec212011

Court of Appeals Affirms That Transgender Discrimination Is Sex Discrimination

December 6, 2011 - In 2005, the Georgia General Assembly's Office of Legislative Counsel (OLC) hired Vandiver Elizabeth Glenn (then known as Glenn Morrison).  In 2006, Glenn, who had been diagnosed with Gender Identity Disorder, informed her direct supervisor that she was transgender and would be transitioning from male to female.  In 2007, Glenn advised the same supervisor that she was changing her name and would begin presenting as a woman at work.  The head of OLC then terminated Glenn because her "intended gender transition was inappropriate, . . . would be disruptive, . . . some people would view it as a moral issue, and . . . it would make [her] coworker's uncomfortable."

Considering the question of "whether discriminating against someone on the basis of his or her gender non-conformity constitutes sex-based discrimination under the Equal Protection Clause" of the Fourteenth Amendment, the Eleventh Circuit Court of Appeals answered in the affirmative.  In so ruling, the Eleventh Circuit joined several other Courts of Appeals and a number of district courts (including one in Pennsylvania).

The court also concluded that Glenn had presented sufficient direct evidence to demonstrate that her gender non-conformity was the reason for her termination.  In a Title VII case, that alone would have been sufficient for Glenn to prevail.  Because Glenn was proceeding against a state employer under the Equal Protection Clause, however, the court also considered whether OLC had an "exceedingly persuasive justification" for the termination and found none. 

This case is an important reminder to employers - even in states and municipalities which do not specifically protect transgender individuals - that transgender discrimination may result in liability under federal law.