11TH CIRCUIT HOLDS DISCRIMINATION AGAINST TRANSGENDERED PERSONS IS PROHIBITED BY THE EQUAL PROTECTION CLAUSE

ELEVENTH CIRCUIT HOLDS DISCRIMINATION AGAINST TRANSGENDERED PERSONS IS PROHIBITED BY THE EQUAL PROTECTION CLAUSE

The Eleventh Circuit Court of Appeals’s recent decision in the case of Glenn v. Brumby, No. 10-14833; 10-15015, 2011 U.S. App. LEXIS 24137 (11th Cir. Dec. 6, 2011) will have broad implications for how federal courts in the Eleventh Circuit interpret and apply federal and state employment discrimination laws. For the first time, the Eleventh Circuit held that the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution protects transgendered persons from employment discrimination by governmental entities.

Vandiver Elizabeth Glenn (“Ms. Glenn”), a former editor in the Georgia General Assembly’s Office of Legislative Counsel (“OLC”), brought suit against Sewell R. Brumby (“Mr. Brumby”), her supervisor at OLC, alleging she was discriminated against on the basis of sex in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Ms. Glenn sought declaratory and injunctive relief pursuant to 42 U.S.C. § 1983 for violations of her constitutional rights.

Ms. Glenn was born as a biological male. However, Ms. Glenn long felt as if she was a woman and was diagnosed with gender identity disorder. Ms. Glenn began taking steps to transition from a male to a female under the supervision of her healthcare providers and planned to eventually have sex reassignment surgery. At the time Ms. Glenn was hired to work at the OLC, she was living her life as a male and dressed in typical male attire. Upon learning that Ms. Glenn planned to transition to living her life as a female, Mr. Brumby elected to terminate Ms. Glenn because he believed the gender transition was inappropriate and would be disruptive.

The district court granted summary judgment to Ms. Glenn on her sex discrimination claim. On appeal, the Eleventh Circuit extensively analyzed and discussed federal case law pertaining to sex discrimination under the Equal Protection Clause. The Court explained that prior cases have held individuals are protected from discrimination on the basis of gender stereotypes. The Court reasoned that a person is defined as transgender precisely because his or her behavior transgresses gender stereotypes and held that discrimination against a transgender individual because of his or her gender non-conformity is a form of sex discrimination.

The Eleventh Circuit’s holding is not directly applicable to the private work force since the Equal Protection Clause only affords protection to governmental employees. However, the reasoning behind the Court’s decision is likely to apply equally in the context of private employers. In future cases, transgendered plaintiffs will almost certainly argue that Title VII’s prohibition against sex discrimination prohibits discrimination against transgendered persons.

Though the case did not involve allegations of discrimination based on sexual orientation, gays, lesbians and bisexuals will benefit from the decision. Gay, lesbian and bisexual plaintiffs are likely to argue they have suffered unlawful sex discrimination based on their failure to conform to traditional gender stereotypes.

In light of the Glenn decision and several recent district court cases in the Eleventh Circuit, there is a growing trend toward recognizing that discrimination based on gender identity and sexual orientation are prohibited forms of sex discrimination. To limit their potential liability, employers should strongly consider updating their non-discrimination and anti-harassment policies to explicitly cover discrimination and harassment based on gender identity and sexual orientation.