Conservative 11th Circuit panel overturns trial court decision, says firing violated her right to equal protection
Lisa Keen | Keen News Service
lisakeen@me.com
A three-judge panel of the conservative 11th Circuit U.S. Supreme Court of Appeals on Tuesday, Dec. 6, ruled in favor of an employee of the Georgia General Assembly who was fired after telling a supervisor that she was undergoing male-to-female sex change treatment.
The supervisor, Sewell Brumby, told the employee, then known as Glenn Morrison, that the gender transition would be “disruptive” to the workplace, that it would make some co-workers “uncomfortable” and that “some people would view it as a moral issue.”
The employee, now known as Vandiver Elizabeth Glenn, filed suit with the aid of Lambda Legal Defense saying the firing violated Glenn’s constitutional right to equal protection.
The firing, argued Lambda, was both discrimination based on sex and based on a medical condition. A district court ruled for the supervisor.
But the panel said the equal protection clause of the U.S. Constitution “requires the state to treat all persons similarly situated alike or, conversely, to avoid all classifications that are ‘arbitrary or irrational’ and those that reflect ‘a bare … desire to harm a politically unpopular group.’
“The question here is whether discriminating against someone on the basis of his or her gender non-conformity constitutes sex-based discrimination under the Equal Protection Clause,” said the panel, in Glenn v. Sewell Brumby. “… we hold that it does.”
Those reasons included a 1989 decision in Price Waterhouse v. Hopkins in which the U.S. Supreme Court ruled that it was sex discrimination for a law firm to deny a promotion to a female lawyer because she was perceived as “macho.”
“All persons, whether transgender or not, are protected from discrimination on the basis of gender stereotype,” said the panel. “… The nature of the discrimination is the same; it may differ in degree but not in kind, and discrimination on this basis is a form of sex-based discrimination that is subject to heightened scrutiny under the Equal Protection Clause. Ever since the Supreme Court began to apply heightened scrutiny to sex-based classifications, its consistent purpose has been to eliminate discrimination on the basis of gender stereotypes.”
The panel took note that supervisor Brumby had expressed concern that other female employees at the General Assembly “might object” to Glenn’s use of the women’s restroom. But it said Brumby presented “insufficient evidence” to show this was the deciding motivation in firing Glenn.
© 2011 by Keen News Service. All rights reserved
This article appeared in the Dallas Voice print edition December 9, 2011.
